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sideration of that testimony we shall be prepared to decide better than we are now, not only what we ought to do, but what we can do.
For instance, here is a very considerable question which we shall be called to discuss, as to the extent to which certain persons engaged in the rebellion shall be excluded from the suf
pared to discuss that question this week than it was last week, and I am sure it will be better prepared to discuss it next week than this week; and my reason is that the evidence on the subject is daily accumulating. It so happens that I heard last evening, myself, very important testimony from gentlemen in whom I have very peculiar confidence, just from the South, with regard to public opinion there, especially among those who have been recently in rebellion, all tending to show the necessity of some counteracting regulations or requirements on our part.
nature? Mr. President, let us keep these channels, and let us build others. I do not object to building others; but my desire is to put no obstruction in the way of commerce, either upon the rivers or upon the railroads. Mr. COWAN. Mr. President, I will vote for the amendment with great pleasure. I have had some considerable experience in the navi-frage. I doubt not that the Senate is better pregation of the western rivers, and I have a very clear and distinct opinion of my own that nothing could be more mischievous to the interests of the carrying trade of the country than the construction of bridges of the kind described by the Senator from Missouri, and especially when there is no necessity that they should be so erected. I have no hesitation in saying that it would be better for the United States to-day to appropriate $1,000,000 for the construction of a bridge across the Mississippi river, ninety feet, or one hundred feet, if you please, above low-water mark, with a span of six or seven hundred feet; it would be a saving to the country, on the whole, if we were to appropriate $1,000,000 to build a bridge of that kind, rather than build a draw-bridge upon a stream of that character. A draw-bridge is well enough upon tide-water, well enough upon still water; but it is impossible to protect the commerce of a river as against these draw-bridges in a sharp current at different stages of the water. I have no doubt that western men will regret their action in a very short time if they allow these great streams to be obstructed by erections of this kind.
Mr. HOWARD. Mr. President, I move to postpone the present and all prior orders, and that the Senate take up House joint resolution No. 127.
Mr. SUMNER. What is that? The PRESIDENT pro tempore. The title of the joint resolution will be read.
The SECRETARY. It is a joint resolution proposing an amendment to the Constitution of the United States.
Mr. SUMNER. The question, I think, is on proceeding to the consideration of that resolution.
The PRESIDENT pro tempore. The motion of the Senator from Michigan is that the Senate postpone the present and all prior orders, and proceed to the consideration of the House joint resolution the title of which has just been read.
Mr. SUMNER. So I understood. Of course that opens no question of the merits, and I do not propose to say anything on the merits. I know not that I shall be able to take any part in this debate; but I cannot allow the resolution to be taken up without expressing my own individual opinion that it would be better if its consideration were postponed still longer. I believe that the country has gained much by the postponement that has already been had. On a former occasion I stated that we were able to have a better proposition at the end of April than we had at the end of March, and I believe now we shall be able to accept a better proposition just as the weeks proceed. We shall be better prepared for this question next week than we are this week, and the week after next we shall be better prepared than next week.
Why, sir, here is a vast mass of testimony which has been taken. It has been laid in driblets, if I may so express myself, before Congress and the country, and never gathered together as a whole; it has never been analyzed; no conclusions have been presented from that testimony; and yet I take it that testimony was taken for some purpose, doubtless to enlighten Congress and enlighten the country; but the Senate is now asked to proceed without the opportunity of considering that testimony in any mature form. I think, sir, it is a mistake that we are asked to proceed with it under such circumstances. I think, sir, that delay for the arrangement of that testimony, and to the end that it may be presented in proper form for our consideration would be wisdom. I think it would be the highest statesmanship. I think from a con
I say such evidence is constantly accumulating. I wish that Congress may have the full || benefit of it, to the end that what we do shall be well done. The question is presented whether we shall proceed on a principle of inclusion or of exclusion. The Senator from Nevada [Mr. STEWART] adopts the principle of inclusion without exclusion. There are others who are disposed to adopt the principle of exclusion without inclusion; in other words, they would exclude certain rebels, but would not include those loyal persons whose misfortune it is that they were born with a skin not colored like our own. Now, sir, for myself it seems to me we have got to adopt both principles, the principle of inclusion and the principle of exclusion; but I do not think that the Senate is at this moment so well informed with regard to the facts which necessarily underlie the decision of that very great question. It is one of the greatest questions that has ever been presented in the history of our country or of any country. It should be approached carefully and solemnly, and with the assurance we have before us all the testimony, all the facts, everything that by any possibility can shed any light upon it. Have we all that testimony? I doubt; and I content myself now with simply entering my own individual caveat against what seems to me the something like precipitation with which the measure is hurried.
Mr. FESSENDEN. I do not know, sir, that I shall take any part whatever in the discussion of the resolution which is now proposed to be taken up in the Senate. That will depend on circumstances not entirely within my control. But with reference to taking it up this morning, I beg leave to say that I differ entirely with the honorable Senator from Massachusetts as to the propriety of proceeding with it at the present time. The matter has been very long under consideration. If he has not informed himself of the amount of the testimony and of what the testimony is that has been taken, it is surely his own fault, because, not only has the principal part of the testimony been published in the newspapers, but it has been published in numbers or sheets and laid upon the tables or sent to Senators; and I presume he has received it, with others. If he wants it in a form all together, he can get that readily, but not bound. I suppose he would not require it to be bound before he reads it, and I believe that a copy unbound has been furnished to each Senator; I have received one.
Mr. TRUMBULL. There has been time enough to bind it. It could have been bound by this time.
Mr. FESSENDEN. A few numbers might but the fact is that there are certain other papers to be included with the testimony that are not ready; for instance, there is an index to be prepared. There is no difficulty about that; and the complaint of the honorable Senator, I think, is not well founded in regard to there not having been ample opportunity for every Senator to inform himself, if he was so disposed, of the testimony. I agree with him, however, in one thing, and that is, that we have gained by delay. The Senate will remember that at
one time we were pushed very hard in all the newspapers in the country to have immediate action on the subject. It was necessary, however, to take testimony, and the progress of taking that testimony and its publication have had the most beneficial effect in informing the mind of the country and satisfying everybody, I think, that the matter has been better understood in consequence of the course that was adopted by the committee from necessity, because the committee was unable to come to a conclusion for the want of testimony in the first place.
Now, sir, as to taking more testimony, some time or other, some point must be fixed at which it should be closed; and that was fixed by the committee, and its determination has been acted upon. If we adopted the advice of the Senator from Massachusetts, to wait until we got every particle that by any possibility might throw light on the subject, we should wait until the next century, perhaps; there is no knowing how often witnesses might turn up, or what they might desire to say. The committee were satisfied that it had gone far enough, affording the most ample opportunity to everybody that desired to testify or desired to produce testimony. There has been no exclusion of anything that has been offered that looked as if it had a bearing on the subject.
We are late in the session. The House of Representatives passed this resolution two weeks ago, or perhaps more. It has been delayed here longer than it would have been, owing to circumstances to which it is not worth while now to allude. I thought it well, as chairman of the committee, that the resolution, after having been passed by the House of Representatives, should lie upon our table for awhile in order to give gentlemen ample opportunity to consider it, and then that a day should be fixed sufficiently far off to enable every one to know that the question was to come up. That time has come, and has passed by a couple of days; and late as we are in the session, with so much to do, so much upon our hands which is obstructed in a measure by this question, it is my deliberate judgment, and it was the deliberate judgment of all the members of the committee on the part of the Senate, that it should have been taken up last Monday.
I agree that public opinion is very apt to be changeable on such subjects; and as public opinion is apt to be changeable, I think we may as well follow our own judgments. It has appeared to do well hitherto, and I am inclined to think that we who have the management of the business know just as well as anybody else when it is advisable to take it up and what it is advisable to do. I can relate one anecdote which shows precisely how this matter is understood. A leading paper in the West, a very important paper, within a short time after the appointment of the committee of fifteen-I think within some two or three weeks afterward, but it may have been a month or twocame out with an article headed, "A Policy Wanted," and it blamed Congress exceedingly for not proceeding to act and define a policy on this subject. The argument was that the President had defined his policy, and that everything was going wrong because Congress had no policy; that it must at once bring in resolutions fixing what it intended to do and have it settled. I thought it was rather unkind to the committee that a leading newspaper should comment in the style it did upon the proceedings of Congress without knowing what the difficulties were, or really what the questions were, and how much embarrassment there was in arriving at a conclusion. But, sir, it went along until about a month ago or less, when the same paper come out with an article saying, "Don't be in too much of a hurry about this business; take time; there is no trouble about it; the country is gaining by delay; have the thing well understood and well matured before you act; don't be in a hurry." This was in the same paper; whether it was written by the same hand or not I do not know. Where there
are so many different opinions, and in the same press, too, very often, come to the conclusion which I expressed before, that we may just about as well exercise our own judgment and do the best we can and leave the results to the future.
Now, sir, as I hope Congress may adjourn some time from the 1st to the middle of July, as I think it ought to do, and may if it attends to its business properly, and if nothing occurs to render a longer session necessary, I think we have arrived now-the last week in May-at a time when we ought to have this question out of the way. We may not agree with the other House in some points. In that case the resolution will have to go back to the House. The discussion upon it will take some time. While it remains undisposed of it stands in the way of other business. I should dislike very much to see a question of this importance crowded into the heel of the session. When it is a matter upon which we have resolved to act and settle before Congress adjourns, if we can settle it, we had better not leave it to the hurry of hot weather and a time when we may all be more impatient than we ought to be in considering a question of so much importance. I hope, therefore, that it will be proceeded with this morning.
Mr. SUMNER. I did not intend, and I hope I was not understood to make any formal opposition to proceeding with this measure. All that I aimed to do was to express an individual opinion which I have very strongly-I cannot help it-with regard to the time when it is best to consider the subject. I may be in error; it is probable that I am in error, since I find that most of those about me have a different opinion, and I am sure that have substantially at heart the same objects as myself. Most probably I am in error; but I have performed my duty, and in a humble way satisfy myself by making this declaration. I have ventured to file a caveat-perhaps that is too strong a term to use for so simple an expression as I intend now-but I did wish to bring the Senate seriously to consider whether they had before them all the evidence so arranged, with all its conclusions and results presented to them which they thought it best to have before they proceeded to the final decision of this great question. I must say I think they have not. However, others do not agree with me.
Mr. HENDRICKS. I wish to inquire of the Senator from Massachusetts to what time he would propose to postpone the consideration of this measure. In asking the question, I desire also to say that I agree with the Senator from Maine that Congress ought to adjourn at as early a day as he has suggested. Unquestionably this measure has to be considered before the adjournment. We know that practically, and I am in favor of meeting it at some early day, because I do not want to be kept here, personally, and I do not suppose other Senators desire to be kept into the very hot weather of the summer in this city. If the Senator from Massachusetts proposes a reasonable postponement, whatever reasons may govern him, whether they be different from those that may govern myself or not, I would be inclined to vote with him, but not for any very long postponement of it. If it could be postponed until the next session, I perhaps would agree to that, but to postpone it to the month of July, I would not agree to.
Mr. SUMNER. Does the Senator desire an answer?
Mr. HENDRICKS. Yes, sir.
Mr. SUMNER. I did not propose any motion. The Senator asks me a question. That I will answer with great pleasure. As far as I can pretend to determine or have an opinion, from the business of the Senate, I do not suppose the Senate can adjourn before the latter part of July. I have supposed that we should not get to such a point in our business that we ought to leave here till then. I have thought, then, that this great question of reconstruction ought to be reserved as the last serious considerable subject for discussion before
we leave. I have thought, therefore, it might
Mr. CONNESS. Considering how long we
The PRESIDENT pro tempore. The question is on the motion of the Senator from Michigan to postpone the present and all prior orders and proceed to the consideration of the resolution from the House of Representatives proposing an amendment to the Constitution of the United States.
The motion was agreed to.
MESSAGE FROM THE HOUSE.
A message from the House of Representatives, by Mr. MCPHERSON, its Clerk, announced that the House of Representatives disagreed to the amendments of the Senate to the bill (H. R. No. 85) for the disposal of the public lands for homestead actual settlement in the States of Alabama, Mississippi, Louisiana, Arkansas, and Flordia, asked a conference on the
disagreeing votes of the two Houses thereon, and had appointed Mr. GEORGE W. JULIAN of Indiana, Mr. JOHN H. RICE of Maine, and Mr. ADAM J. GLOSSBRENNER of Pennsylvania, managers at the same on its part.
ENROLLED BILLS SIGNED.
The message also announced that the Speaker of the House of Representatives had signed the following enrolled bills; which were thereupon signed by the President pro tempore:
A bill (S. No. 318) to authorize the appoint ment of an additional Assistant Secretary of the Navy;
A bill (H. R. No. 193) for the relief of Mrs. William L. Herndon; and
A bill (H. R. No. 558) to amend the charter of the Washington Gas-Light Company.
APPROVAL OF BILLS.
A message from the President of the United States, by Mr. COOPER, his Secretary, announced that the President of the United States had approved and signed, on the 21st instant, the following acts and joint resolution: An act (S. No. 132) to prevent and punish kidnaping;
An act (S. No. 186) amendatory of an act to provide for the reports of decisions of the Supreme Court of the United States;
An act (S. No. 316) to establish a post route from West Alburg, Vermont, to Champlain, in the State of New York, and for other purposes; and
A joint resolution (S. R. No. 61) to extend the time for the construction of the first section of the Western Pacific railroad.
HOMESTEADS IN SOUTHERN LAND STATES.
The Senate proceeded to consider its amendments to the bill (H. R. No. 85) for the disposal of the public lands for homestead actual settlement in the States of Alabama, Mississippi, Louisiana, Arkansas, and Florida, and,
On motion of Mr. KIRKWOOD, it was Resolved, That the Senate insist upon its amendments to the said bill, and agree to the conference asked by the House on the disagreeing votes of the two Houses thereon.
Ordered, That the President pro tempore be authorized to appoint the managers at зaid conference on the part of the Senate.
The Senate, as in Committee of the Whole, proceeded to consider the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States, which was read as follows:
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 said Legislatures, shall be valid as part of the Constitution, namely:
SEC. 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
SEC. 2. Representatives shall be apportioned among the several States which may be included within the Union, according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever, in any State, the elective franchise shall be denied to any portion of its male citizens not less than twenty-one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age.
SEC. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insur rection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States.
SEC. 4. Neither the United States nor any State shall assume or pay any debt or obligation already incurred, or which may hereafter be incurred, in aid of insurrection or of war against the United States, or any claim for compensation for loss of involuntary service or labor.
SEC. 5. The Congress shall have power to enforce by appropriate legislation the provisions of this article.
Mr. HOWARD. Mr. President, I regret that the state of the health of the honorable Senator from Maine [Mr. FESSENDEN] who is
chairman, on the part of the Senate, of the joint committee of fifteen, is such as to disable him from opening the discussion of this grave and important measure. I was anxious that he should take the lead, and the prominent lead, in the conduct of this discussion, and still entertain the hope that before it closes the Senate will have the benefit of a full and ample statement of his views. For myself, I can only promise to present to the Senate, in a very succinct way, the views and the motives which influenced that committee, so far as I understand those views and motives, in presenting the report which is now before us for consideration, and the ends it aims to accomplish.
The first clause of this section relates to the privileges and immunities of citizens of the United States as such, and as distinguished from all other persons not citizens of the United States. It is not, perhaps, very easy to define with accuracy what is meant by the expression, "citizen of the United States," although that expression occurs twice in the Constitution, once in reference to the President of the United States, in which instance it is declared that none but a citizen of the United States shall be President, and again in reference to Senators, who are likewise to be citizens of the United States. Undoubtedly the expression is used in both those instances in the same sense in which it is employed in the amendment now before us. A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws. Before the adoption of the Constitution of the United States, the citizens of each State were, in a qualified sense at least, aliens to one another, for the reason that the several States before that event were regarded by each other as independent Governments, each one possessing a sufficiency of sovereign power to enable it to claim the right of naturalization; and, undoubtedly, each one of them possessed for itself the right of natural
The joint resolution creating that committee intrusted them with a very important inquiry, an inquiry involving a vast deal of attention and labor. They were instructed to inquire || into the condition of the insurgent States, and authorized to report by bill or otherwise at their discretion. I believe that I do not over. state the truth when I say that no committee of Congress has ever proceeded with more fidelity and attention to the matter intrusted to them. They have been assiduous in discharging their duty. They have instituted an inquiry, so far as it was practicable for them to do so, into the political and social conditionizing foreigners, and each one, also, if it had of the insurgent States. It is very true, they have not visited any localities outside of the city of Washington in order to obtain information; but they have taken the testimony of a great number of witnesses who have been summoned by them to Washington, or who happened to be in Washington, and who had some acquaintance with the condition of affairs in the insurgent States. I think it will be the judgment of the country in the end that that committee, so far as the procuring of testimony upon this subject is concerned, has been not only industrious and assiduous, but impartial and entirely fair. I know that such has been their aim. I know that it has not been their purpose to present to Congress and the country in their report anything unfair or one-sided, or anything of a party tendency. Our anxiety has been to ascertain the whole truth in its entire length and breadth, so far as the facilities given us would warrant.
seen fit so to exercise its sovereign power, might
The effect of this clause was to constitute
One result of their investigations has been the joint resolution for the amendment of the Constitution of the United States now under consideration. After most mature deliberation and discussion, reaching through weeks and even months, they came to the conclusion that it was necessary, in order to restore peace and quiet to the country and again to impart vigornities, and ask for their enforcement whenever and efficiency to the laws, and especially to they go within the limits of the several States obtain something in the shape of a security for of the Union. the future against the recurrence of the enormous evils under which the country has labored for the last four years, that the Constitution of the United States ought to be amended; and the project which they have now submitted is the result of their deliberations upon that subject.
The first section of the amendment they have submitted for the consideration of the two Houses relates to the privileges and immunities of citizens of the several States, and to the rights and privileges of all persons, whether citizens or others, under the laws of the United States. It declares that
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States. I do not propose to go at any length into that question at this time. It would be a somewhat barren discussion. But it is certain the clause was inserted in the Constitution for some good purpose. It has in view some results beneficial to the citizens of the several States, or it would not be found there; yet I am not aware that the Supreme Court have ever undertaken to define either the nature or extent of the priv- || ileges and immunities thus guarantied. Indeed, if my recollection serves me, that court, on a certain occasion not many years since, when this question seemed to present itself to them, very modestly declined to go into a definition of them, leaving questions arising under the clause to be discussed and adjudi cated when they should happen practically to arise. But we may gather some intimation of what probably will be the opinion of the judiciary by referring to a case adjudged many years ago in one of the circuit courts of the United States by Judge Washington; and I will trouble the Senate but for a moment by reading what that very learned and excellent judge says about these privileges and immunities of the citizens of each State in the several
States. It is the case of Corfield vs. Coryell, found in 4 Washington's Circuit Court Reports, page 380. Judge Washington says:
"The next question is whether this act infringes that section of the Constitution which declares that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States ?'
The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all free Governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would, perhaps, be more tedious than difficult to enumerate. They may, however, be all comprehended 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 mayjustly prescribe for the general good of the whole. The right of a citizen of one State to pass through or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or
impositions than are paid by the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privi leges deemed to be fundamental, to which may be added the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking privileges and immunities, and the enjoyment of them by the citizens of each State in every other State was manifestly calculated (to use the expres sions of the preamble of the corresponding provision in the old Articles of Confederation) the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union.""
Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be-for they are not and cannot be fully defined in their entire extent and precise nature -to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punish
Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.
Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course
do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees. How will it be done under the present amendment? As I have remarked, they are not powers granted to Congress, and therefore it is necessary, if they are to be effectuated and enforced, as they assuredly ought to be, that additional power should be given to Congress to that end. This is done by the fifth section of this amendment, which declares that "the Congress shall have power to enforce by appropriate legislation the provisions of this article." Here is a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees, a power not found in the Constitution.
The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the the
of the State. This abolishes all class legisla tion in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. hibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Is it not time, Mr. President, that we extend to the black man, I had almost called it the poor privilege of the equal protection of the law? Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body?
But, sir, the first section of the proposed amendment does not give to either of these classes the right of voting. The right of suffrage is not, in law, one of the privileges or immunities thus secured by the Constitution. It is merely the creature of law. It has always been regarded in this country as the result of positive local law, not regarded as one of those fundamental rights lying at the basis of all society and without which a people cannot exist except as slaves, subject to a depotism.
As I have already remarked, section one is a restriction upon the States, and does not, of itself, confer any power upon Congress. The power which Congress has, under this amendment, is derived, not from that section, but from the fifth section, which gives it authority to pass laws which are appropriate to the attainment of the great object of the amendment. I look upon the first section, taken in connection with the fifth, as very important. It will, if adopted by the States, forever disable every one of them from passing laws trenching upon these fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction. It establishes equality before the law, and it gives to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty. That, sir, is republican government, as I understand it, and the only one which can claim the praise of a just Government. Without this principle of equal jus
tice to all men and equal protection under the shield of the law, there is no republican gov ernment and none that is really worth maintaining.
The second s ction of the proposed amendment reads as follows:
SEC. 2. Representatives shall be apportioned among the several States which may be included within the Union, according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever, in any
State, the elective franchise shall be denied to any portion of its male citizens not less than twentyone years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citi
That is, citizens as to whom the right of voting is denied or abridged
shall bear to the whole number of male citizens not less than twenty-one years of age.
It is very true, and I am sorry to be obliged to acknowledge it, that this section of the amendment does not recognize the authority of the United States over the question of suffrage in the several States at all; nor does it recognize, much less secure, the right of suffrage to the colored race. I wish to meet this question fairly and frankly; I have nothing to conceal upon it; and I am perfectly free to say that if I could have my own way, if my preferences could be carried out, I certainly should secure suffrage to the colored race to some extent at least; for I am opposed to the exclusion and proscription of an entire race. If I not universal
popular sense of that expression, I should be in favor of restricted, qualified suffrage for the colored race. But, sir, it is not the question here what will we do; it is not the question what you, or I, or half a dozen other members of the Senate may prefer in respect to colored suffrage; it is not entirely the question what measure we can pass through the two Houses; but the question really is, what will the Legislatures of the various States to whom these amendments are to be submitted do in the premises; what is it likely will meet the general approbation of the people who are to elect the Legislatures, three fourths of whom must ratify our propositions before they have the force of constitutional provisions?
I do not
Let me not be misunderstood. intend to say, nor do I say, that the proposed amendment, section two, proscribes the colored race. It has nothing to do with that question, as I shall show before I take my seat. could wish that the elective franchise should be extended equally to the white man and to the black man; and if it were necessary, after full consideration, to restrict what is known as universal suffrage for the purpose of securing this equality, I would go for a restriction; but I deem that impracticable at the present time,
and so did the committee.
The colored race are destined to remain among us. They have been in our midst for more than two hundred years; and the idea of the people of the United States ever being able by any measure or measures to which they may resort to expel or expatriate that race from their limits and to settle them in a foreign country, is to me the wildest of all chimeras. The thing can never be done; it is impracticable. For weal or for woe, the destiny of the colored race in this country is wrapped up with our own; they are to remain in our midst, and here spend their years and here bury their fathers and finally repose themselves. We may regret it. It may not be entirely compatible with our taste that they should live in our midst. We cannot help it. Our forefathers introduced them, and their destiny is to continue among us; and the practical question which now presents itself to us is as to the best mode of getting along with them.
The committee were of opinion that the States are not yet prepared to sanction so fundamental a change as would be the concession of the right of suffrage to the colored race. We may as well state it plainly and fairly, so that there shall be no misunderstanding on the
subject. It was our opinion that three fourths of the States of this Union could not be induced to vote to grant the right of suffrage, even in any degree or under any restriction, to the colored race. We may be right in this apprehension or we may be in error. Time will develop the truth; and for one I shall wait with patience the movements of public opinion upon this great and absorbing question. The time may come, I trust it will come, indeed I feel a profound conviction that it is not far distant, when even the people of the States themselves where the colored population is most dense will consent to admit them to the right of suffrage. Sir, the safety and prosperity of those States depend upon it; it is especially for their interest that they should not retain in their midst a race of pariahs, so circumstanced as to be obliged to bear the burdens of Government and to obey its laws without any par ticipation in the enactment of the laws.
The second section leaves the right to regulate the elective franchise still with the States, and does not meddle with that right. Its basis of representation is numbers, whether the numbers be white or black; that is, the whole population except untaxed Indians and persons excluded by the State laws for rebellion or other crime. Formerly under the Constitution, while the free States were represented only according to their respective numbers of men, women, and children, all of course endowed with civil rights, the slave States had advantage of being represented according to their muamber of the rare free classes, in creased by three fifths of the slaves whom they treated not as men but property. They had this advantage over the free States, that the bulk of their property in the proportion of three fifths had the right of representation in Congress, while in the free States not a dollar of property entered into the basis of representation. John Jacob Astor, with his fifty millions of property, was entitled to cast but one vote, and he at the ballot-box would meet his equal in the raggedest beggar that strolled the streets. Property has been rejected as the basis of just representation; but still the advantage that was given to the slave States under the Constitution enabled them to send at least twenty-one members to Congress in 1860, based entirely upon what they treated as property-a number sufficient to determine almost every contested measure that might come before the House of Representatives.
The three-fifths principle has ceased in the destruction of slavery and in the enfranchisement of the colored race. Under the present Constitution this change will increase the num ber of Representatives from the once slaveholding States by nine or ten. That is to say, if the present basis of representation, as established in the Constitution, shall remain operative for the future, making our calculations upon the census of 1860, the enfranchisement of their slaves would increase the number of their Representatives in the other House nine or ten, I think at least ten; and under the next census it is easy to see that this number would be still increased; and the important question now is, shall this be permitted while the colored population are excluded from the privi lege of voting? Shall the recently slaveholding States, while they exclude from the ballot the whole of their black population, be enti tled to include the whole of that population in the basis of their representation, and thus to obtain an advantage which they did not pos sess before the rebellion and emancipation? In short, shall we permit it to take place that one of the results of emancipation and of the war is to increase the Representatives of the late slaveholding States?
object to this. I think they cannot very consistently call upon us to grant them an additional number of Repre sentatives simply because in consequence of their own misconduct they have lost the prop erty which they once possessed, and which served as a basis in great part of their repre
The committee thought this should no longer be permitted, and they thought it wiser to adopt a general principle applicable to all the States alike, namely, that where a State excludes any part of its male citizens from the elective franchise, it shall lose Representatives in proportion to the number so excluded; and the clause applies not to color or to race at all, but simply to the fact of the individual exclusion. Nor did the committee adopt the principle of making the ratio of representation depend upon the number of voters, for it so happens that there is an unequal distribution of voters in the several States, the old States having proportionally fewer than the new States. It was desirable to avoid this inequality in fixing the basis. The committee adopted numbers as the most just and satisfactory basis, and this is the principle upon which the Constitution itself was originally framed, that the basis of representation should depend upon numbers; and such, I think, after all, is the safest and most secure principle upon which the Government can rest. Numbers, not voters; numbers, not property; this is the theory of the Constitution.
By the census of 1860, the whole number of colored in the several States was four persons million four hundred and twenty-seven thousand and sixty-seven. In five of the New England States, where colored persons are allowed to vote, the number of such colored persons is only twelve thousand one hundred and thirtytwo. This leaves of the colored population of the United States in the other States unrepresented, four million four hundred and fourteen thousand nine hundred and thirty-five, or at least one seventh part of the whole population of the United States. Of this last number, three million six hundred and fifty thousand were in the eleven seceding States, and only five hundred and forty-seven thousand in the four remaining slave States which did not secede, namely, Delaware, Maryland, Kentucky, and Missouri. In the eleven seceding States the blacks are to the whites, basing the calculation upon the census of 1860, nearly as three to five. A further calculation shows that if this section shall be adopted as a part of the Constitution, and if the late slave States shall continue hereafter to exclude the colored population from voting, they will do it at the loss at least of twenty-four Representatives in the other House of Congress, according to the rule established by the act of 1850. I repeat, that if they shall persist in refusing suffrage to the colored race, if they shall persist in excluding that whole race from the right of suffrage, they will lose twenty-four members of the other House of Congress. Some have estimated their loss more and some less; but according to the best calculation I have been able to make, I think that will be the extent. It is not to be disguised-the committee have no disposition to conceal the fact-that this amendment is so drawn as to make it the political interest of the once slaveholding States to admit their colored population to the right of suffrage. The penalty of refusing will be severe. They will undoubtedly lose, and lose so long as they shall refuse to admit the black population to the right of suffrage, that balance of power in Congress which has been so long their pride and their boast.
It will be observed, however, that this amendment does not apply exclusively to the insurgent States, nor to the slaveholding States, but to all States without distinction. It says to all the States, "If you restrict suffrage among your people, whether that people be white or black or mixed, your representation in Congress shall be reduced in proportion to that restriction." It holds out the same penalty to Massachusetts as to South Carolina, the same to Michigan as to Texas.
Mr. CLARK. If the Senator will pardon me for a moment, I wish to inquire whether the committee's attention was called to the fact that if any State excluded any person, say as Massachusetts does, for want of intelligence,
this provision cuts down the representation of that State.
Mr. HOWARD. Certainly it does, no matter what may be the occasion of the restriction. It follows out the logical theory upon which the Government was founded, that numbers shall be the basis of representation in Congress, the only true, practical, and safe republican principle. If, then, Massachusetts should so far forget herself as to exclude from the right of suffrage all persons who do not believe with my honorable friend who sits near me [Mr. SUMNER] on the subject of negro suffrage, she would lose her representation in proportion to that exclusion. If she should exclude all persons of what is known as the orthodox faith she loses representation in proportion to that exclusion. No matter what may be the ground of exclusion, whether a want of education, a want of property, a want of color, or a want of anything else, it is sufficient that the person is excluded from the category of voters, and the State loses representation in proportion. The principle applies to every one of the States in precisely the same manner. And, sir, the true basis of representation is the whole population. It is not property, it is not education, for great abuses would arise from the adoption of the one or the other of these two tests. Experience has shown that numbers and numbers only is the only true and safe basis; while nothing is clearer than that property qualifications and educational qualifications have an inevitable aristocratic tendency-a thing to be avoided.
Mr. STEWART. I wish to call the attention of the Senator to the word "abridged" before he passes from that branch of the subject. I should like to understand the operation intended by that expression.
Mr. HOWARD. The word "abridged" I regard as a mere intensitive, applicable to the preceding sentence, "but whenever, in any State, the elective franchise shall be denied to any portion of its male citizens not less than twenty-one years of age, or in any way abridged" to any portion of its male citizens not less than twenty-one "except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the propor tion which the number of such male citizens" —that is, the number of citizens as to whom it is either denied or abridged—“shall bear to the whole number of male citizens not less than twenty-one years of age."
I suppose it would admit of the following application: a State in the exercise of its sovereign power over the question of suffrage might permit one person to vote for a member of the State Legislature, but prohibit the same person from voting for a Representative in Congress. That would be an abridgment of the right of suffrage; and that person would be included in the exclusion, so that the representation from the State would be reduced in proportion to the exclusion of persons whose rights were thus abridged.
Mr. STEWART. Take a case of this kind: suppose that in the South they should allow the negroes to vote who had been in the Army, or who had educational qualifications; would those who did vote be included in the basis of representation, or would that be an abridg ment of that class of persons so that they would all be excluded?
Mr. HOWARD. It is not an abridgment to a caste or class of persons, but the abridg. ment or the denial applies to the persons individually. If the honorable Senator will read the section carefully I think he will not doubt as to its true interpretation. It applies individually to each and every person who is denied or abridged, and not to the class to which he may belong. It makes no distinction between black and white, or between red and white, except that if an Indian is counted in he must be subject to taxation.
But as to the principle of representation, I beg to call the attention of Senators to two passages which I will read from the Writings
"Confining the right of suffrage to freeholders and to such as hold an equivalent property, convertible, of course, into freeholds. The objection to this regulation is obvious. It violates the vital principle"
Here my honorable friend from Massachusetts will observe what I regard as the vital principle of republican government; it is not representation because of taxation; it is this"the vital principle of free government, that those who are to be bound by the laws ought to have a voice in making them."
That is the point; that those who are to be bound by the laws ought to have a voice in making the laws.
Mr. JOHNSON. Does the honorable member read from Madison's Writings?
Mr. HOWARD. The fourth volume of Madison's Writings, page 25.
Mr. SUMNER. Is that applicable to all
without distinction of color?
Mr. HOWARD. Certainly it is, and whether they can read and write or not. The point is that the person who is bound by the laws in a free Government ought to have a voice in making them. It is the very essence of republican government. Again he observes, page 27: "Under every view of the subject it seems indispensable"
I wish the attention of my honorable friend from Maryland to this, for I know how much he reverences the character and talents of James Madison
"Under every view of the subject"—
"Every view of the subject," not a partial view, but every view which had presented itself or could present itself to the mind of that great
"it seems indispensable that the mass of citizens should not be without a voice in making the laws which they are to obey, and in choosing the magistrates who are to administer them. And if the only alternative be between an equal and universal right of suffrage for each branch of the Government, and a confinement of the entire right to a part of the citizens, it is better that those having the greater interest at stake, namely, that of property and persons both, should be deprived of half their share in the Government, than that those having the lesser interest, that of personal rights only, should be deprived of the whole."
Now, apply that great principle as broadly as it is laid down by Mr. Madison on the page from which I have read, and how can any man of true republican feeling, attached to the essential principles of our system of government, refuse the right of suffrage to the whole negro population as a class?
Mr. JOHNSON. Females as well as males? Mr. HOWARD. Mr. Madison does not say anything about females.
Mr. JOHNSON. "Persons."
Mr. HOWARD. I believe Mr. Madison was old enough and wise enough to take it for granted there was such a thing as the law of nature which has a certain influence even in political affairs, and that by that law women and children were not regarded as the equals of men. Mr. Madison would not have quibbled about the question of women's voting or of an infant's voting. He lays down a broad democratic principle, that those who are to be bound by the laws ought to have a voice in making them; and everywhere mature manhood is the representative type of the human race.
I have but very little to say, Mr. President, as to the third section of this amendment. It reads as follows:
SEC. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States.
It is due to myself to say that I did not favor