Part 2

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That in the courts of the United States in any State, whereof, according to the census Anno Domini eighteen hundred and sixty, one sixth part or more of the population was of African descent, every grand jury shall consist one half of persons of African descent who shall possess the other qualifications now required by law; and when the matter to be tried relates to any injury inflicted by a person of African descent upon a person not of such descent, or _vice versa_, or to any claim, suit, or demand between a person of such descent and one not of such descent, every petit jury shall consist one half of persons of African descent possessing the other qualifications now required by law. Upon any such trial, prejudice against persons of African descent, or against persons not of such descent, shall be ground of challenge, and, being established by proof, to the satisfaction of the judge, shall exclude the juror. And upon any such trial, inability to read or write shall be ground of challenge, and, the fact being found by the judge, shall exclude the juror.

This bill was read, passed to a second reading, and ordered to be printed.

December 13th, it was read a second time, and, on motion of Mr. Sumner, referred to the Committee on the Judiciary.

Towards the end of the session, July 7, 1866, it was reported adversely by Mr. Trumbull, and, on his motion, indefinitely postponed.

* * * * *

This effort to secure recognition of colored persons on juries was suggested by the ancient jury _de Medietate Linguæ_, first given by the statute of 28th Edward III., cap. 13, and used in cases where one party was a foreigner and the other a denizen. There were other cases where an analogous jury was impanelled, as in a criminal trial in the University courts, where the jury was half freeholders of the county, and half matriculated laymen of the University.[3]

OATH TO MAINTAIN A REPUBLICAN FORM OF GOVERNMENT IN THE REBEL STATES.

BILL IN THE SENATE, DECEMBER 4, 1865.

A Bill prescribing an oath to maintain a Republican form of Government in the Rebel States.

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That hereafter every person in any State lately declared to be in rebellion, before he shall be allowed to vote at any election, State or National, or before he shall enter upon the duties of any office, State or National, or become entitled to the salary or other emoluments thereof, shall take and subscribe an oath or affirmation to maintain a republican form of government, as follows: “I do hereby swear (or affirm) that I will at all times hereafter use my best endeavors to maintain a republican form of government in the State of which I am an inhabitant, and in the Union of the United States; that I will at all times recognize the indissoluble unity of the Republic, and will always discountenance and resist any endeavor to break away or secede from the Union; that I will give my influence and vote at all times to strengthen and sustain the national credit; that I will always discountenance and resist any attempt, directly or indirectly, to repudiate or postpone, in any part or in any way, either the debt contracted by the United States in subduing the late Rebellion or the obligation assumed to the Union soldiers; that I will always discountenance and resist any laws making any distinction of race or color; and that in all ways I will strive to maintain a State government completely loyal to the Union, where all men shall enjoy equal protection and equal rights”: which, so taken and subscribed, shall be preserved in the proper office or department, according to regulations made by the President of the United States. Any person who shall falsely take such oath shall be guilty of perjury, and, on conviction, in addition to the penalties now prescribed for that offence, shall be deprived of his office, and rendered incapable forever after of holding any office under the United States.

This bill was read, passed to a second reading, and ordered to be printed. The same oath appears in the Scheme of Reconstruction.[4]

PART EXECUTION OF THE GUARANTY OF A REPUBLICAN FORM OF GOVERNMENT.

BILL IN THE SENATE, DECEMBER 4, 1865.

A Bill in part execution of the guaranty of a Republican form of Government in the Constitution of the United States.

Whereas it is declared in the Constitution that the United States shall guaranty to every State in this Union a republican form of government; and whereas certain States have allowed their governments to be subverted by rebellion, so that the duty is now cast upon Congress of executing this guaranty: Now, therefore,

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That in all States lately declared to be in rebellion there shall be no oligarchy invested with peculiar privileges and powers, and there shall be no denial of rights, civil or political, on account of race or color; but all persons shall be equal before the law, whether in the court-room or at the ballot-box. And this statute, made in pursuance of the Constitution, shall be the supreme law of the land, anything in the Constitution or laws of any such State to the contrary notwithstanding.

This bill was read, passed to a second reading, and ordered to be printed.

* * * * *

The same bill, in another form, was introduced by Mr. Sumner, February 2, 1866, and afterwards moved as a substitute for the Constitutional Amendment on Representation.[5]

EQUAL RIGHTS OF COLORED PERSONS TO BE PROTECTED BY THE NATIONAL COURTS.

BILL IN THE SENATE, TO ENFORCE THE CONSTITUTIONAL AMENDMENT ABOLISHING SLAVERY, DECEMBER 4, 1865.

A Bill supplying appropriate legislation to enforce the Amendment to the Constitution prohibiting Slavery.

_Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled_, That neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

SEC. 2. _And be it further enacted_, That, if any person shall attempt to control, or shall by act or word claim any right to control, the services of any other person, contrary to the provisions of the foregoing section, the person so offending shall, upon indictment and conviction in the District Court of the United States for the district where the crime was committed, be punished by a fine not exceeding ten thousand dollars, or by imprisonment for a term not exceeding ten years, or by both, to be inflicted at the discretion of the court; and it shall be no defence, nor cause of mitigation of sentence, that such claim or attempt is sanctioned by any pretended law of a State, or any judgment of a State court. But nothing herein contained shall be held to impair any other remedy now existing by _Habeas Corpus_ or otherwise.

SEC. 3. _And be it further enacted_, That, in further enforcement of the provision of the Constitution prohibiting Slavery, and in order to remove all relics of this wrong from the States where this Constitutional prohibition takes effect, it is hereby declared that all laws or customs in such States, establishing any oligarchical privileges and any distinction of rights on account of race or color, are hereby annulled, and all persons in such States are recognized as equal before the law; and the penalties provided in the last section are hereby made applicable to any violation of this provision, which is made in pursuance of the Constitution of the United States.

SEC. 4. _And be it further enacted_, That, in further enforcement of the provision of the Constitution, the courts of the United States in the States shall have exclusive jurisdiction of all offences committed by persons not of African descent upon persons of African descent; also of all offences committed by persons of African descent; and also of all causes, suits, and demands to which any person of African descent shall be a party; and it is hereby declared that all such cases are to be treated as cases arising under the Constitution of the United States.

This bill was read, passed to a second reading, and ordered to be printed.

December 21st, it was read a second time, and, on motion of Mr. Sumner, referred to the Committee on the Judiciary.

January 11, 1866, Mr. Trumbull, from this Committee, reported the “Bill to protect all persons in the United States in their civil rights, and furnish the means of their vindication,” which was passed, covering in part the ground of Mr. Sumner’s bill.[6]

REPRESENTATION ACCORDING TO VOTERS.

JOINT RESOLUTION IN THE SENATE, TO AMEND THE CONSTITUTION, DECEMBER 4, 1865.

Joint Resolution proposing an Amendment of the Constitution of the United States.

_Resolved by the Senate and House of Representatives of the United States of America in Congress assembled_ (two thirds of both Houses concurring), That the following Article be proposed to the Legislatures of the several States as an Amendment to the Constitution of the United States, which, when ratified by three fourths of such Legislatures, shall become a part of the Constitution, to wit:--

“Representatives shall be apportioned among the several States which may be included within this Union according to the number of male citizens of the age of twenty-one years having in each State the qualifications requisite for electors of the most numerous branch of the State Legislature. The actual enumeration of such citizens shall be made by the census of the United States.”

This was the first resolution of the session. It was read, passed to a second reading, and ordered to be printed.

December 13th, on motion of Mr. Sumner, it was read a second time, and referred to the Committee on the Judiciary.

June 20, 1866, in company with other resolutions proposing Amendments to the Constitution, it was reported adversely by Mr. Trumbull, and on his motion indefinitely postponed.

Meanwhile the proposition had entered largely into debate, and had been discussed by Mr. Sumner.[7] It was superseded by the provision on Representation in the Fourteenth Amendment of the Constitution. When moved, June 6th, by Mr. Doolittle, of Wisconsin, as a substitute for that clause, it was rejected,--Yeas 7, Nays 31. The yeas were Messrs. Cowan, of Pennsylvania, Davis, of Kentucky, Doolittle, Guthrie, of Kentucky, Hendricks, of Indiana, Johnson, of Maryland, and Riddle, of Delaware. It was no longer satisfactory to Mr. Sumner, who hoped for something better. When brought forward by him, it was in the nature of a tentative process.

SCHEME OF RECONSTRUCTION ON THE BASIS OF EQUAL RIGHTS.

BILL IN THE SENATE, TO ENFORCE THE GUARANTY OF A REPUBLICAN FORM OF GOVERNMENT IN CERTAIN STATES, DECEMBER 4, 1865.

A Bill to enforce the guaranty of a Republican form of Government in certain States whose governments have been usurped or overthrown.

_Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled_, That, in the States lately declared in rebellion against the United States, the President shall, by and with the advice and consent of the Senate, appoint for each a provisional governor, with pay and emoluments not exceeding those of a brigadier-general of volunteers, who shall be charged with the civil administration of such State, until a State government therein shall be recognized as hereinafter provided.

SEC. 2. _And be it further enacted_, That the provisional governor of each of such States shall direct the marshal of the United States, as speedily as may be, to name a sufficient number of deputies, and to enroll all male citizens of the United States resident in the State in their respective counties, and to request each one to take the oath to support the Constitution of the United States, and the oath to maintain a republican form of government, and in his enrolment to designate those who take and those who refuse to take the oaths, which rolls shall be forthwith returned to the provisional governor; and if the persons taking the oaths shall amount to a majority of the persons enrolled in the State, he shall by proclamation invite the loyal people of the State to elect delegates to a convention charged to declare the will of the people of the State relative to the reëstablishment of a State government, subject to and in conformity with the Constitution of the United States.

SEC. 3. _And be it further enacted_, That the oath to maintain a republican form of government shall be as follows: “I do hereby swear (or affirm) that I will at all times hereafter use my best endeavors to maintain a republican form of government in the State of which I am an inhabitant, and in the Union of the United States; that I will at all times recognize the indissoluble unity of the Republic, and will always discountenance and resist any endeavor to break away or secede from the Union; that I will give my influence and vote at all times to strengthen and sustain the national credit; that I will always discountenance and resist any attempt, directly or indirectly, to repudiate or postpone, in any part or in any way, either the debt contracted by the United States in subduing the late rebellion or the obligation assumed to the Union soldiers; that I will always discountenance and resist any laws making any distinction of race or color; and that in all ways I will strive to maintain a State government completely loyal to the Union, where all men shall enjoy equal protection and equal rights.”[8]

SEC. 4. _And be it further enacted_, That the convention shall consist of as many members as both Houses of the last constitutional State Legislature, apportioned by the provisional governor among the counties, parishes, or districts of the State, in proportion to the population returned as electors by the marshal, in compliance with the provisions of this Act. The provisional governor shall by proclamation declare the number of delegates to be elected by each county, parish, or election district; name a day of election, not less than thirty days thereafter; designate the places of voting in each county, parish, or district, conforming, as nearly as may be convenient, to the places used in the State elections next preceding the Rebellion; appoint one or more commissioners to hold the election at each place of voting; and provide an adequate force to keep the peace during the election.

SEC. 5. _And be it further enacted_, That the delegates shall be elected by the loyal male citizens of the United States of the age of twenty-one years, and resident at the time in the county, parish, or district in which they shall offer to vote, and enrolled as aforesaid, or absent in the military service of the United States, and who shall take and subscribe the oath of allegiance to the United States in the form contained in the Act of Congress of July 2, 1862, and the before recited oath to maintain a republican form of government; and all such citizens of the United States who are in the military service of the United States shall vote at the head-quarters of their respective commands, under such regulations as may be prescribed by the provisional governor for the taking and return of their votes; but no person who has held or exercised any office, civil or military, State or otherwise, under the Rebel usurpation, or who has voluntarily borne arms against the United States, shall vote or be eligible as delegate at such election.

SEC. 6. _And be it further enacted_, That the commissioners, or either of them, shall hold the election in conformity with this Act, and, so far as may be consistent therewith, shall proceed in the manner used in the State prior to the Rebellion. The oath of allegiance and the oath to maintain a republican form of government shall be taken and subscribed on the poll-book by every voter in the form above prescribed; but every person known by or proved to the commissioners to have held or exercised any office, civil or military, State or otherwise, under the Rebel usurpation, or to have voluntarily borne arms against the United States, shall be excluded, though he offer to take the oath; and in case any person who shall have borne arms against the United States shall offer to vote, he shall be deemed to have borne arms voluntarily, unless he shall prove the contrary by the testimony of a qualified voter. The poll-book showing the name and oath of each voter shall be returned to the provisional governor by the commissioners of election, or the one acting, and the provisional governor shall canvass such returns, and declare the person having the highest number of votes elected.

SEC. 7. _And be it further enacted_, That the provisional governor shall by proclamation convene the delegates duly elected, at the capital of the State, on a day not more than three months after the election, giving at least thirty days’ notice of such day. In case the capital shall in his judgment be unfit, he shall in his proclamation appoint another place. He shall preside over the deliberations of the convention, and administer to each delegate, before taking his seat in the convention, the oath of allegiance to the United States, and the oath to maintain a republican form of government, in the form above prescribed.

SEC. 8. _And be it further enacted_, That the convention shall declare, on behalf of the people of the State, their submission to the Constitution and laws of the United States, and shall adopt the following provisions, hereby prescribed by the United States in the execution of the constitutional duty to guaranty a republican form of government to every State, and incorporate them in the Constitution of the State, that is to say:--

First. No person who has held or exercised any office, civil or military, except offices merely ministerial and military offices below the grade of colonel, State or otherwise, under the usurping power, shall vote for or be a member of the legislature or governor.

Secondly. Involuntary servitude is forever prohibited, and the freedom of all persons is guarantied in such State.

Thirdly. No debt, State or otherwise, created by or under the sanction of the usurping power, shall be recognized or paid by the State.

Fourthly. No person shall enter upon any office within the gift of the people of this State, until he has first taken the oath to support the Constitution of the United States and the oath to maintain a republican form of government. And the Constitution shall prescribe forms for these oaths substantially in accordance with the forms herein provided.

Fifthly. There shall be no distinction among the inhabitants of this State founded on race, former condition, or color. Every such inhabitant shall be entitled to all the privileges before the law enjoyed by the most favored class of such inhabitants.

Sixthly. These provisions shall be perpetual, not to be abolished or changed hereafter.

SEC. 9. _And be it further enacted_, That, when the convention shall have adopted those provisions, it shall proceed to reëstablish a republican form of government, and ordain a constitution containing those provisions, which, when adopted, the convention shall by ordinance provide for submitting to the people of the State entitled to vote under this law, at an election to be held in the manner prescribed by the act for the election of delegates, but at a time and place named by the convention, at which election the electors described above, and none others, shall vote directly for or against such constitution and form of State government. And the returns of such election shall be made to the provisional governor, who shall canvass the same in the presence of the electors, and if a majority of the votes cast shall be for the constitution and form of government, he shall certify the same, with a copy thereof, to the President of the United States, who, after obtaining the assent of Congress, shall by proclamation recognize the government so established, and none other, as the constitutional government of the State; and from the date of such recognition, and after its legislature shall have ratified the Amendment to the United States Constitution abolishing slavery and prohibiting involuntary servitude, and not before, Senators and Representatives, and Electors for President and Vice-President, may be elected in such State, according to the laws of the State and of the United States.

SEC. 10. _And be it further enacted_, That, if the convention shall refuse to reëstablish the State government on the foregoing conditions, the provisional governor shall declare it dissolved; but it shall be the duty of the President, whenever he shall have reason to believe that a sufficient number of the people of the State entitled to vote under this Act, in number not less than a majority of those enrolled as aforesaid, are willing to reëstablish a State government on the foregoing conditions, to direct the provisional governor to order another election of delegates to a convention for the purpose and in the manner prescribed in this Act, and to proceed in all respects as herein before provided, either to dissolve the convention, or to certify the State government reëstablished by it to the President.

SEC. 11. _And be it further enacted_, That, until the United States shall have recognized a republican form of State government, the provisional governor in each of such States shall see that this Act, and the laws of the United States, and the laws of the State in force when the State government was overthrown by the Rebellion, are faithfully executed within the State; but no law or usage contrary to any of the provisions herein directed to be inserted in the constitution of the State shall be recognized or enforced by any court or officer in such State, and such provisions shall be regarded as already incorporated into the law of the State; and the laws for the trial and punishment of white persons shall extend to all persons, and jurors shall have the qualifications of voters under this law for delegates to the convention. The President shall appoint such officers, provided for by the laws of the State when its government was overthrown, as he may find necessary to the civil administration of the State, all which officers shall be entitled to receive the fees and emoluments provided by the State laws for such officers. And he may permit, when he deems it expedient, elections to be made of such officers by the people entitled to vote according to the provisions of this Act; such officers to have the qualifications required for voters under this Act, and to hold their offices subject to removal by him. And all such officers, whether appointed by the President or elected by the people, shall, before entering on the duties of their offices, take the oaths to support the Constitution of the United States, and to maintain a republican form of government.