sir, suppose that these reconstructed States, instead of using the word "ratify" in their acts or joint resolutions in relation to the constitutional amendment, choose to use the word "adopt," and get their Senators and Representatives in here, and then turn round and say, 'We never ratified this thing; we only expressed our adoption of it;" and suppose that the Secretary of State should take sides with them and declare that the constitutional amendment was not ratified by three fourths of the States, what would be the result? We should have their Senators and Representatives in here and the constitutional amendment not ratified.

Mr. FRELINGHUYSEN. I suggest to my friend from Missouri that, in that event, all Congress would have to do would be to pass a law declaring that its declaration that the constitutional amendment was ratified was sufficient, without the Secretary of State doing it.

Mr. DRAKE. That may do very well after the thing is developed; but I am talking about the state of things that exists now; and I say again that, in my opinion, that joint resolution of the two houses of the Legislature of Florida is not a ratification of the constitutional amend ment. When the Constitution uses the word "ratify" it uses it in its clear, distinct sense. An "adoption" is not a "ratification" in any definition of the word that we know of in the English language. "To adopt" is "to take or receive as one's own; to select and take, as, to adopt the opinions of another, to adopt a particular mode of husbandry." "To ratify" is "to approve and sanction; to make valid; to confirm; to establish; to settle."

When the Constitution uses the word "ratify," why should we permit this State to use the word "adopt," and to leave the question open afterward whether there is a ratification? Sir, we are bound to see that this constitutional amendment is ratified beyond all question, and we are bound not to admit any Senator into this Chamber from any of these reconstructed States until that State has "ratified" the constitutional amendment, not "adopted" it. It has no business to "adopt" it; all it has to do is to "ratify" what Congress has done, to approve it.

Mr. YATES. I do not think that there is a man in the United States who looks at this thing in the right way, no lexicographer or professor or man of common school education any where, who will not say that an "adoption' of the amendment is a "ratification "of it. I hope the Senate will not pause upon any such question; I will not call it a quibble, for I have too great respect for the Senator from Missouri.

Mr. MORTON. Mr. President, I confess that I am somewhat surprised at this objection. Is the word "ratify" a technical word? Are there not other words in the English language which signify the same thing? Are we after the substance, or are we after a mere technicality? When it is required that these States shall "ratify an amendment, what does it mean except that they shall agree to it, signify their acquiescence that it shall become a part of the Constitution? Is anything else required? Is anything else meant? Why, sir, if they had said, "we hereby accept this as a part of the Constitution," would not that be equivalent to the word "ratify?"

Mr. DRAKE. That would not be equivalent to ፡፡ adopt."

Mr. MORTON. If they had said "We will agree to this," would not that be equivalent to the word "ratify?" Would it not convey the same meaning? If they had said, as they do say, "We hereby adopt this," how can they adopt it without agreeing to it? How can they adopt it without accepting it? How can they agree to it without ratifying it? They cannot. If they agree to accept it as a part of the Constitution, that is all that is required. Is not that the meaning clearly conveyed by the use of the word "adopt?" As the Senator from Massachusetts has said, that is the popular word. It is used every day in this Senate when we come to speak on that subject. The

question has been made in the Senate within a few weeks past whether the thirteenth article had been adopted." That is the very word used, and it always conveys the same idea here and elsewhere as if we had said, "Has it been ratified?" Sir, the word "ratify" is not technical. Any language that conveys the idea that the Legislature accepts and agrees to this amendment as a part of the Constitution is sufficient. It would be ridiculous, in my opinion, to send this back to the Legislature of Florida, and say "You have not expressed an acceptance of this article, but you must use the word 'ratify.'

Mr. HOWE. I said when I was up just now, that since we had agreed to take repre sentatives from the State of Florida, and since we had ascertained that that State has chosen representatives, I thought we ought to receive them unless some Senator should say that he had great doubts as to the propriety of our receiving them at this time. When I made that remark I had heard no such doubt expressed. The Senator from Michigan has since raised a question which he wishes to have examined by the Judiciary Committee. That question is, whether, when the Legislature of Florida say they "adopt" a particular amendment as a part of the Constitution, they do thereby ratify" that amendment? There seems to me to be so little doubt on that point that I am inclined not to assent to the reference to the Judiciary Committee, but to take the vote of the Senate upon it.

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Mr. MORTON, (presenting a dictionary.) Here is a definition of the word.

Mr. DRAKE. I have read the definition from the book.

Mr. MORTON. Very well; I was not aware of it.

Mr. HOWE. The Senator has read the definition of "adopt."

Mr. DRAKE. And "ratify," also. Mr. HOWE. Well, I do not propose to overrule either of these dictionaries; but I had one suggestion to make, and that is that the Constitution simply requires the Legislature to ratify, and does not require them to say that they ratify. In other words, the Constitution requires that the Legislature shall do something that is a ratification, and does not require them to use that word; and I think the Senator from Indiana was entirely right when he said that if they did anything or said anything which signified their acceptance of a particular proposition as an amendment of the Constitution of the United States that was sufficient; and I am so clear on this point that I think Í shall take the vote of the Senate on the ques tion whether they will refer these credentials or whether they will admit the Senators now without saying another word.

Mr. TIPTON. I only desire to say that in "adopting" amendments they adopt them as amendments of the Constitution, and receive them as such.

Mr. FESSENDEN. I hope this matter will go to the committee, simply because there seems to be doubt suggested in the minds of gentlemen. In such a case it is better that the papers should go to the committee. I confess I am somewhat anxious to know whether the ratification has been communicated to the Secretary of State in form. I desire to have the evidence in the proper place.

Mr. HOWE. Does the Senator think that it is necessary that it should be communicated to the Secretary of State?

Mr. FESSENDEN. I think so, under the existing law.

Mr. HOWE. The existing law is that when the Legislature ratifies we shall receive their Senators.

Mr. FESSENDEN. I am speaking of the law which requires the ratification to be communicated to the Secretary of State.

Mr. HOWE. That may, perhaps, be necessary in order to make the amendment a part of the Constitution, but it is not necessary to entitle the gentlemen elected to their seats.

Mr. FESSENDEN. I apprehend that it is

a material point to be looked after by us that this article of amendment shall have become a part of the Constitution of the United States. It was considered so material when we passed the law that it was made a specific provision that they were not to be admitted until enough States had ratified it to make it a part of the Constitution.

Mr. IIOWE. No; the Senator is mistaken. Mr. FESSENDEN. It was originally so. Mr. HOWE. Originally so; but it is not so in the law now.

Mr. FESSENDEN. I say that being regarded of so much importance it was originally so provided. We have since waived that just so far as to say that we will admit a State before that article becomes a part of the Constitution; but still I cling to that as a very important idea, and I wish to secure that particular thing. I have fears that unless this ratification is communicated in proper form, and communicated by the proper authority, it will not be noticed; and I am unwilling that anything should be let slip in relation to that matter. But, sir, the Senate will do as it pleases. For myself, when there are doubts raised about such a matter, and this is the first case that presents itself, I think it is safer to have the report of a committee. They can look at it calmly, and with sufficient time to examine it carefully, which cannot be done in the Senate by a discussion here on the spur of the moment; and as a day is of no sort of consequence, as it can be a matter of no great importance to these gentlemen whether they are sworn in to day or to-morrow, I think we had better refer these papers.

I have great respect for the chairman of the Committee on the Judiciary, and when he gets up here and says there is no doubt about a thing, I am willing to take that as his opinion; but it is barely possible that in committee, with other lights about him, some further effulgence might be shed upon it, and he might be led to doubt, or at any rate to make a more specific examination. When we make a motion to refer a question to the Judiciary Committee we do not mean to refer it to the chairman alone, but to the committee to have a report; and although his opinion may now be clear, Í think nothing can possibly be lost, and some additional feeling of security may be gained by the reference.

Mr. HOWARD. Mr. President

Mr. DOOLITTLE. Will the Senator from Michigan give way for a moment? I have received and been requested to present a paper, which I send to the desk, which purports to be a certificate of the Governor of Florida.

The PRESIDENT pro tempore. The cre dentials now sent to the desk by the Senator from Wisconsin will be read, if there be no objection.

Mr. HOWE. By whom is that paper signed? The CHIEF CLERK. "David S. Walker, Governor of Florida."

Mr. HOWE. I object to the reading of that paper.

Mr. HOWARD. Mr. President, I was about to say that it might turn out, as has been intimated here, that the point which I suggested respecting the phraseology of the resolution of the Legislature of Florida may be trivial and unfounded. I am not prepared to say that there is any strong ground for expressing a doubt as to the sufficiency of that form of ratification; but still I think the chairman of the Committee on the Judiciary, if he will examine the forms of ratification of the Constitution itself by the thirteen old States, and the forms of the ratification of all the subsequent amendments, will not find a single case in which the word "adopted" is the only word used in the resolution of ratification. It is not possible for me at this moment to say with certainty what the form in all those cases was; but I think he will find that in every case the word "ratify" was used by the Legislatures of the old States when they adopted the Constitution originally, and by the Legislatures of the sev

eral States in adopting the amendments which were made a year or two afterward. At all events, I think it worth while for that learned committee, that industrious committee, and I will go further and say that burdened committee, to look into the precedents on this point. We certainly do not wish to commit any mistake or error. The great thing to be secured is this: that the State of Florida shall have ratified, whatever may be the sense of the word "ratify," these two amendments of the Constitution, so that, in respect to her, they shall become a part of the Constitution of the United States. I would not stand upon mere technicalities; I would not quibble about a mere word if it was quite obvious that the word used by the Legislature was tantamount to "ratified." It seems to me that under the circumstances, and in consideration of the question presented by the Senator from Maine, it is quite proper that these papers should be referred, and that we should have a report from that learned committee.

The PRESIDENT pro tempore. The Senator from Wisconsin [Mr. DOOLITTLE] presents a paper on this subject and asks that it be read. The reading is objected to, and the question is, Shall the paper be read?

Mr. HENDRICKS. vote refer

the credentials before the body to the Judi: ciary Committee for the reasons which I gave the other day in favor of referring the Arkansas credentials, and not at all for the reasons that are assigned here this morning. I think Congress has no more power to say that before a State shall be represented in this body after her practical relations to the Union have been recognized she shall ratify or refuse to ratify a proposed amendment to the Constitution, than to say that she shall not be represented at all. If Congress can make this as a condition of representation in regard to a State the relations of which are now recognized by law, then Congress can go through her whole constitution and her code of laws and prescribe the whole system of government for that State. Therefore I shall vote for the reference for other reasons than those that have been suggested.

I do not know whether the word "approve" or "adopt" will supply the place of "ratify." That is a question that I suppose the Senate of the United States is not called upon judicially to decide at this time. Whether the State of Florida by the language used in her resolution has ratified the constitutional amendment is a question upon which I would not give au opinion at this time.

This particular person comes here certified with more particularity than is usual. It is not only certified that he is elected according to the act of Congress, but it is certified that he has been a resident of the State of Florida for two years. How the Governor had official information of the length of this person's resi dence in this State is not apparent to the Senate. I suppose it is not found upon the records of the Legislature, and perhaps not upon the|| records of the executive department of the State. There are some institutions of States that keep records of this sort; but perhaps the Governor could not certify in regard to that at all. Why is that? Why is there a certificate that he has been a resident of the State for two years? I suppose it is to exclude the conclusion that he is one of the adventurers that are going down there to govern that country. Is this credential satisfactory? The Constitution simply requires that the party shall be a resident of the State at the time he is elected. This person comes with more than ordinary claims, then, because the certificate is fuller than usual; and I suppose, if we regard the law passed the other day, he is entitled to his seat. The credential shows an election. question was settled the other day that an election at a time when there was no legal State government as declared by Congress is a good election. Congress declared in the reconstruction acts that there was no valid government down there, that to have a valid government 40TH CONG. 2D SESS.-No. 226.

The

they must take certain steps, and those steps must be submitted to and approved by Congress, and when Congress approved, then they should have a valid State government. At the time this election took place Congress had not examined the constitution; it was not approved, as I understand. Therefore the question arises whether a State having no legal and valid gov. ernment can elect Senators?

I believe they had a valid State government; a majority of this body does not hold that opinion; but I understand that in the case of Arkansas the other day this question was settled by the Senate, and that an election at a time when as Congress declared they had no valid State government was a good election, and that a ratification of a constitutional amendment by a Legislature not then recognized as valid and declared by Congress to be invalid was a good ratification of a constitutional amendment; so that these points seem to be settled by the action of the Senate the other day; and really what there is to submit to the Committee on the Judiciary I am not able to see.

These were supposed to be grave questions; but they have been settled by the decision of the Senate. That committee cannot reverse the decision of the Senate. That committee can

now whether this Senator

elected before the State was in a conditio was elect; nor can the committee question that the Legislature at the time was competent to ratify the amendment. But suppose the word "adopt" is not sufficient, why not amend it? Why should Congress not amend it? We amend their constitutions. Why not amend this resolution of adoption and say that it means ratify, and put it through? What is the use of standing upon trifles? Perhaps the word "adopt" means "ratify." Perhaps technical words are not needed in a resolution of this sort. If so, and we want to have the exact word, why not just put it in? We have as much power to do that certainly, to control the action of the Legislature, as we have to mod ify the action of a constitutional convention that makes a constitution. I do not myself see anything much to refer; but to be consistent with myself on the vote of the other day I shall vote for the reference.

Mr. EDMUNDS. Mr. President, one would almost suppose that the distinguished Senator from Indiana was making a 4th of July oration. I do not mean the 4th of next July; mean some other July. [Laughter.] All that I rose to say was that for one I do not wish to be put in the position that he has assigned to me as to the legal effect of the Senate's action touching the ratification by the State of Arkansas of the constitutional amendment. He has chosen to state in a very lawyer-like and adroit way a view of the case that pleases him, and has assigned us to that position. I do not wish to go over now, because it is not appropriate, the real and correct legal grounds upon which the ratification by Arkansas has now become as to her valid. They are firm enough, are easily enough understood. They have existed and been practiced upon in one form or another since the Union was formed, year after year. But, as I say, I do not wish to take time for that, but only to declare that I do not choose to occupy the position to which my distinguished friend has assigned me.

Mr. JOHNSON. Mr. President, I suppose the only question practically before the Sen ate about which there can be any dispute is whether the two amendments to the constitution have been sufficiently ratified by the State of Florida; and that de; ends, as I suppose, upon the meaning of the word "adoption," as found in their resolution. I rise merely for the purpose of saying that it seems to me that that word is just as effectual as any other word that could have been used to obtain that end. Congress has a right to propose amendments to the Constitution, and the States have a right to reject or ratify them. When the State of Florida, in due form, tells us that her Legislature, by whom the act of adoption is to be made, has adopted them, it appears to me that

so far as that State in concerned, and so far as the United States is concerned, that ques tion is settled.

As to the other question, whatever differences of opinion existed and do now exist between the minority of the Senate and the majority, I suppose it is to be considered as settled that in all we are to do now, at this session at any rate, we are to take for granted that the question is settled that the States are not to be admitted to representation on this floor until they shall antecedently have adopted the constitutional amendment. I bow, as of course I am bound to bow, to the decision of the majority of the Senate on that question, however much I may think there is error in it.

That being the case, we have no right, unless we are to reject our former opinions on the ques tion of power, to keep from the Senate the representatives chosen from this State, provided the State has complied with all the requisitions prescribed by Congress in the acts of reconstruction; and supposing that they have done that so far as the particular provision is concerned, as the constitutional amendments referred to have been ratified, I see no objection to swearing in the member who it has been certified to us has been properly elected.

Mr. DOOLITTLE. Mr. President, I do not rise to discuss this question of reference; but the paper which I sent to the Chair purports to be the credentials of Hon. William Marvin, a Senator-elect from the State of Florida, and as the other credentials were about to be referred to the Committee on the Judiciary, I simply desired to have these referred also at the same time. I ask that the paper which I sent to the Chair may be read, so as to be referred with the other papers to the Committee on the Judiciary. I did not rise to make any argument.

Mr. TRUMBULL. Mr. President, I am for treating this motion to refer just as I would any other. It was not from any haste on my part to have the Senators from Florida admitted that I suggested that there was no object in referring these papers to the committee. We have settled by an act which we passed a few days ago the condition of Florida. We have declared that that State, under a constitution which was submitted to us and examined, was entitled to representation in Congress when she ratified the constitutional amendment known as article fourteen. That act has passed both Houses of Congress and is the law of the land. Now, the State of Florida sends evidence here that she has ratified that constitutional amendment. Does anybody doubt it?

Mr. DRAKE. Yes, I do.

Mr. TRUMBULL. The Senator from Missouri doubts it because the word "ratify" is not used. Now, let me read to him a sentence from the law. By a statute passed in 1818 it was declared

"That whenever official notice shall have been received at the Department of State that any amendment which heretofore has been, or hereafter may be, proposed to the Constitution of the United States has been adopted according to the provisions of the Constitution, it shall be the duty of the Secretary of State forthwith to cause the said amendment to be published in the said newspapers authorized to promulgate the laws, with his certificate specifying the States by which the same may have been adopted."

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Congress, fifty years ago, used the word adopted," in reference to constitutional amendments; and it was declared in a message from the President of the United States to both Houses of Congress, dated January 8, 1798, that the eleventh amendment which was proposed to the Constitution of the United States had been "adopted by the constitutional number of States;" so that this word 'adopted" is no new word in our law; and the only suggestion that I have heard for referring these papers is to ascertain whether, when a Legislature adopts a constitutional amendment, it has ratified it. Even the Senator from Michigan says that he does not know that it is of sufficient importance to raise a doubt upon it.

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Mr. DRAKE. I will state to the honorable Senator from Illinois that there is another ground. We do not know, and cannot know

without an examination and comparison, that the constitutional amendments as set out in that joint resolution of the Legislature of Florida are set out in the words in which they were proposed.

Mr. TRUMBULL. I have said that I was for treating this paper like all others. If any member of the Senate will rise in his place and say that he believes this resolution does not recite the fourteenth article, or that what is here set forth differs from it, I am willing to have it referred for the purpose of comparison to satisfy the Senator from Missouri; but unless some Senator suggests something of that kind, and merely imagines that it is possible it is not properly copied, I see no necessity for a reference, even to satisfy my friend from Maine that the Secretary of State should promulgate it. The validity does not depend upon his promulgation; he is only required to give notice when he has received official information of the adoption of a constitutional amendment. But we have passed a law by which we have said to the State of Florida, "You have organized a State government which is entitled to representation in this Congress, and we will receive your representatives when you send them here, and ratify the constitutional amendment which we name the fourteenth article." They send us here the evidence of that fact, and send the members here, and now the Senator from Maine suggests that we shall wait until the Secretary of State proclaims something about it.

Mr. FESSENDEN. No, sir; the Senator will please not misapprehend me. I think it is the duty of the State to communicate the fact to the Secretary of State, and that is the proper evidence that they have adopted or ratified the amendment, so that he may have the evidence before him in order to promulgate the adoption of the constitutional amendment by a sufficient number of States to make it a part of the Constitution. Suppose that hereafter, this not being now done, the State of Florida or any of these other States refuses to communicate the information to him.

Mr. TRUMBULL. That would not alter its validity. It is only a means of preserving the evidence. Whenever the requisite number of

States have ratified the constitutional amendment it becomes part of the Constitution; and whenever you can obtain the evidence of that fact in any court the court would recognize it. This is not the only means of establishing it; it is a convenient way of making it known by having it promulgated by the Secretary of State. But would it not be just as valid in any court in Christendom when the evidence was furnished from the action of the State itself that it had

ratified the constitutional amendment? Really I see no object in referring these papers. It looks to me as if it were hunting after some objection when the Senator from Missouri suggests that possibly these are not proper copies.

Mr. DRAKE. Mr. President, I do not think the honorable Senator from Illinois has any sort of justification whatever for charging me with hunting after objections to the admission of representatives. We declared by act of Congress that we would admit the Senators from these States when each of these States had ratified the constitutional amendment. The honorable Senator from Illinois said that in this case evidence of the fact was produced in regard to Florida. How does he know that that is evidence of the fact till he has examined it? How can we say that it is a ratification of the constitutional amendment when we have not examined the document to see whether the amendment is there in terms? I want the Committee on the Judiciary to examine this resolution of the two houses of the Florida Legislature, and inform us whether it is a ratification of the constitutional amendment, whether the constitutional amendment is set out there in terms, or whether it is something else that they have ratified.

I protest, Mr. President, against any charge against me of unfriendliness toward the admission of these States. All I want is that the

fundamental condition upon which they were to be admitted, the ratification of that amendment, shall be made to appear to the Senate before they shall rush forward to admit these Senators. Now, sir, if the Senate choose to go it blind in this matter, very well; I have nothing further to say; I have done my duty in calling their attention to it.

Mr. CONNESS. I hope we shall have a vote and see whether the Senate will refer these credentials or not.

Mr. DAVIS. Mr. President, I am somewhat amused at this sudden revival of a seeming attachment to the Constitution by the gen tlemen over the way after they have so long forsaken it. It is, however, rather an encouraging and refreshing view of the subject; but I think the gentlemen might as well hold on to the even tenor of their way. Why should they care about the Constitution or elections or forms of return? They may dispense with the whole of them whenever it is their will, || and I think they might as well do it now. Why trouble yourselves, gentlemen, about the Constitution and what it prescribes and its forms? Why do you look at the form of return of a Senator from one of the States of the Union? Why do you ask an election, much less a return? Dispense with the commission and with the return, and, if necessary, dispense with the election, and if the gentle men who present themselves do not suit you, just select and appoint others for yourselves. You can do all this, and I think it would comport more with what you have done heretofore; it would preserve the harmony of your system of operations and of your programme. I entreat that you shall make no departure whatever from it; do not say another word about the credentials or another word about the elections; but if the gentleman who presents himself suits you, just send him up to be sworn; and if he does not suit you, just drop him for another that suits you better and send him up to be sworn, and have it all your own

way.

Mr. STEWART. Is the Senator serious? Mr. DAVIS. It is serious for you; that is, it is acting out your appropriate part. I am just suggesting what uniformity in your course and policy would require you to do, gentlemen. You have given enough of amusement to the Senate and to the country this morning by talking about elections, and the forms of the Constitution, and the forms of return. I think that farce has been played about long enough.

The PRESIDENT pro tempore. The question is on the reading of the paper presented by the Senator from Wisconsin, [Mr. DOOLIT TLE.] He asks to have it read, and the reading being objected to it can only be ordered by a vote of the Senate. The question is, Shall the paper offered by the Senator from Wisconsin be read?

The question being taken, there were on a division-ayes 21, noes 8.

The PRESIDENT pro tempore. The paper will be read.

The Chief Clerk read as follows:

STATE OF FLORIDA, EXECUTIVE DEPARTMENT.

To all to whom these presents may come, greeting: Know ye, that at a joint meeting of the senate and house of representatives of the State of Florida in General Assembly convened, held at the capitol, in the city of Tallahassee, on the 28th day of November, A. D. 1866, William Marvin was duly elected a Senator in the Congress of the United States for the term of six years from the 4th day of March proximo, 1867. In testimony whereof I have hereunto set my official signature and caused to be affixed the great seal of Florida.

Done at the capitol, in the city of Tallahassee, the 30th day of November, A. D. 1866. [L. S.]

DAVID S. WALKER, Governor of Florida. By the Governor: Attest: BENJAMIN F. ALLEN, Secretary of State. The PRESIDENT pro tempore. It is moved that the credentials first read, and the paper purporting to be evidence that the constitutional amendment has been ratified by the Legislature of Florida, be referred to the Committee on the Judiciary. To that motion the Senator

Mr. FERRY. I withdraw the amendment. The PRESIDENT pro tempore. The amendment is withdrawn.

Mr. DOOLITTLE. I move to amend the motion by including in it the credentials just read.

The PRESIDENT pro tempore. The question is on the amendment of the Senator from Wisconsin.

Mr. DOOLITTLE. Senators suggest that they prefer to take the question on each case separately, and that I can make the motion to refer these papers afterward, if the others are referred. To gratify Senators I withdraw the amendment.

The PRESIDENT pro tempore. The question is on referring the credentials first offered to the Committee on the Judiciary, with the resolutions of ratification of the Legislature of Florida.

Mr. CONNESS and Mr. STEWART called for the yeas and nays; and they were ordered. Mr. EDMUNDS. As the yeas and nays are to be taken, I wish in one word to give the reason for my vote. I have, as it now strikes me, no difficulty with the question of terminology-if my friend from Massachusetts [Mr. SUMNER] thinks that is a proper word to usewhich has been raised here; but considering the condition that these States have been in, and the fact that there are several other cases more or less analogous to come to us, I think that it is wise, as a mere matter of precaution, although I myself see no objection to these papers, to send them to the committee. committee meet to-morrow and can report tomorrow; and then everybody will be satisfied, and we shall have a precedent and method of doing business which will not leave us so liable as we are, in doing things in the haste of this method, to go astray. That is my reason for voting to refer, not that I see any difficulty in the case.

The

The question being taken by yeas and nays, resulted-yeas 16, nays 30; as follows:

YEAS-Messrs. Anthony, Buckalew, Davis, Doolittle, Drake, Edmunds, Fessenden, Hendricks, Howard, Johnson, McCreery, Morrill of Maine, Morrill of Vermont, Norton, Patterson of New Hampshire, and Vickers-16.

NAYS-Messrs. Cameron, Cattell, Chandler, Cole, Conness, Corbett, Cragin, Ferry, Frelinghuysen, Harlan, Howe, McDonald, Morgan, Morton, Nye. Pomeroy, Ramsey, Ross, Sherman, Stewart, Sumner, Thayer, Tipton, Trumbull, Van Winkle, Wade, Willey, Willians, Wilson, and Yates-30.

ABSENT-Messrs. Bayard, Conkling, Dixon, Fowler, Grimes, Henderson, Patterson of Tennessee, Rice, Saulsbury, and Sprague-10. The ques

The PRESIDENT pro tempore. tion recurs on the motion of the Senator from Wisconsin, [Mr. HowE,] that the Senator-elect be permitted to take the oaths.

Mr. DRAKE. I ask for the reading of the supposed resolution of ratification by the Legislature of Florida.

The PRESIDENT pro tempore. It will be read if there be no objection.

The Chief Clerk read as follows:

Be it resolved by the people of the State of Florida in Senate and Assembly represented. That the following proposed amendments to the Constitution of the United States, known as articles thirteenth and fourteenth, be, and the same are hereby, adopted:

XIII AMENDMENT.

SECTION 1. 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 Congress shall have power to enforce this article by appropriate legislation.

XIV AMENDMENT.

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. 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 laws. within its jurisdiction the equal protection of its

2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for

President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3. No person shall be a Senator or Representative in Congress, or elector of President or Vice President. or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof. But Congress may, by a vote of two thirds of each House, remove such disability.

4. The validity of the public debt of the United States authorized by law, including debts incurred for the payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States or any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations, and claims shall be held illegal and void.

5. Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Passed in the Senate June 9. A. D. 1868.

HORATIO JENKINS, jr., President. WILLIAM LEE APTHORP, Secretary. Passed by the Assembly, June 9, A. D. 1868. W. W. MOORE. Sneaker. WILLIAM FORSYTH BYNUM, Clerk. Approved, June 11. A. D. 1868.

HARRISON REED, Governor.

STATE OF FLORIDA, EXECUTIVE OFFICE. This is to certify that the foregoing is a true and correct copy of the original resolution, as the same appears on file in this office.

In testimony whereof I have hereunto set my hand and affixed the great seal of the State of Flor[L. S.lida, this 22d day of June, A. D. 1868.

HARRISON REED, Governor.

this it reads "or Vice President." I do not attach great importance to that; but still it is a verbal difference; it is not the amendment that we proposed.

But here, sir, is another change which is material in my judgment. In that same third section the words in the original are, “shail | have engaged in insurrection or rebellion against the same or give aid or comfort to the enemies thereof." They have it there "aid and comfort," substituting the word "and," the copulative instead of the disjunctive "or." That I take to be substance.

Again, sir, the fifth variation is the insertion in the fourth section of the particle "the" before the word "payment." I do not attach any importance to that. Again, the substitution of the word "or" for "nor" in that same section where it reads in the original, "But neither the United States nor any State shall assume," &c. There they have substituted the word "or" for "nor." I do not attach great importance to that; but here, Mr. President, are no less than six variations between the amendment they set out in their joint resolution and that which we proposed to them, and two of those variations are matters of substance.

Now, sir, I have done my duty; I have called the attention of the Senate to the fact that the very evidence which they present here to show that they have ratified the constitutional amendment proves that they have not done it, and that they have ratified another thing. Now, if the Senate choose to admit their Senators, let them go ahead and do it as fast as they please; my duty is done.

The PRESIDENT pro tempore. It is moved and seconded that the Senator-elect from Florida be permitted to take the oaths with a view to be admitted to his scat.

Mr. DRAKE. I will make one inquiry before I take my seat. That, I presume, neces

sustain that motion that that State has ratified the constitutional amendment. Is not that so, sir?

The PRESIDENT pro tempore. I suppose

In the first place, there are some of those variations that perhaps might not be regarded as material, there are others that are material. In the first section, where the amendment reads that certain persons 66 are citizens of the United States and of the State wherein they reside," the word "of" is left out before the words "the State." In the last line of that first section, which reads in the original "nor deny to any person within its jurisdiction the equal protection of the laws," the word "its' substituted for the word "the" before "laws," which I take to be a very material variance not only in language, but in substance. And, sir, how do you know, how does anybody know to-day, that that was not an intentional variation put in there by the Legislature of Florida? Mr. FRELINGHUYSEN. Read that sentence again?

is

Mr. DRAKE. 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;" and they have it in their resolution "protection of its laws." Is that the amendmeut that you proposed to that State to ratify? It is not the amendment; and now you are pressing or rushing into an admission of the Senators and Representatives from that State here when they have not ratified the amendment that you sent to them. "Its laws" may mean one thing, and "the laws," which mean all laws which bear upon that State, may be an entirely different thing.

Again, sir, the third section of the amendment reads in the original "no person shall be a Senator or Representative in Congress, or elector of President and Vice President." In

it is.

Mr. DRAKE. Very well, sir; I call for the yeas and nays upon the question.

The yeas and nays were ordered

Mr. MORTON. So far as these objections are concerned, these variations that have been pointed out by the Senator from Missouri, they are clearly not of substance in this connection. It was not necessary to set forth these amendments at all. They would have been sufficiently described by saying "the thirteenth and fourteenth amendments." That was all that was necessary, and these verbal differences amount to nothing, because the amendments are fully and completely identified. Although there may be these verbal differences, does anybody doubt but what they are the thirteenth and fourteenth amendments as proposed by Congress? All that is required is, that the amendments ratified shall be pointed out, shall be designated with reasonable certaintyMr. CONNESS. Identified.

Mr. MORTON. Identified, to use that word; and are they not identified? The variances themselves are immaterial. They would not be good on a special demurrer in any court. They do not go to the substance. It seems that the Clerk in copying them has used the word "or" where he should have said "nor," and he has put the word "its" where he should have said the;" but the meaning of the amendments is not changed and certainly there is no doubt as to what amendments are intended. They describe the amendments as the thirteenth and fourteenth proposed by Congress to be ratified or adopted by the sev eral States. Upon that subject there is no doubt; and these verbal differences in this connection are utterly unimportant.

Mr. HOWARD. I had hoped, sir, that this matter would have been referred to the Committee on the Judiciary, for the purpose of removing any uncertainties which might exist in the papers, and I supported the motion to

refer because it struck me that the form of ratification was, to say the least, unusual, the language not being that of the Constitution, and possibly not embracing what is intended by the Constitution. I raised this doubt for the purpose of eliciting some discussion on the subject. It seems, however, that the Senate, in voting by a very large majority not to refer the papers to the committee, are of opinion that that form of ratification is sufficient, and that the language used by the Legislature of Florida, "adopted," is the equivalent of the word "ratified" in the Constitution itself. So far I have effected one purpose, and that was to ascertain the sense of the Senate upon that point; and that being the sense of the Senate, as appears by a very large majority, I shalĺ now vote to admit the Senator to his seat.

I do not think, however, that the copy of the fourteenth article of amendment, as set out in the paper furnished to the Senate, is the official, authentic copy. It was not necessary, as has been very properly remarked by the Senator from Indiana, that the Legislature of Florida should undertake to furnish a copy in totidem verbis of the article. The official and conclusive proof of what the fourteenth amendment of the Constitution is exists in the roll itself engrossed and filed away with the proper Department of the Government. That is the official evidence of what is meant by Congress and by the States ratifying it by the fourteenth amendment." I therefore look upon these small discrepancies pointed out so ingeniously by the Senator from Missouri as being entirely immaterial, so far as the evidence of what the amendment actually is, is concerned.

Mr. EDMUNDS. The Legislature of Florida, according to this transcript which they send us, did not have the thirteenth and fourteenth articles before them to adopt, unless these articles which they set out are substantially the thirteenth and fourteenth articles.

Mr. HOWARD. Are they not bound to take notice of the fact that the public statutes exist?

Mr. EDMUNDS. Not by any means, when as an independent State they are called upon to give the assent of their will to what then amounts to a compact between the Government of the United States and the State, and an irreversible contract. Suppose the Legislature of Florida had had an entirely and totally different paper, the reverse of this one that we have got before us, before them, and some person who presented it had made that Legislature believe that that was the article they were called upon to see and to know; because the ground upon which we go is that when Congress proposed this article to those States as States the State of Florida was not in condition to receive any such proposal. It had no Legislature; it had no organized government. We set up one three or four days ago, or a week ago, whatever the time was. That body of men having a right to pass as a matter of will and assent upon the question of whether they would agree to this proposal, (because you must remember that by the Constitution of the United States amendments of the Constitution are mere proposals to the States in their sovereign, independent, and political capacity,) they have a text presented to them which differs in a material particular-take that for granted for the moment-from the original proposition that Congress has adopted. They adopt that false and different proposition and send it to the Secretary of State. Will my friend from Michigan or my friend from Indiana maintain that the Secretary of State will be authorized upon such a certificate, under the law as it now stands, to promulgate that that article had been adopted, supposing Florida to be the key-stone, so to speak, the last one of the three fourths? I take it nobody will maintain that proposition; and that is exactly this proposition, provided there is a material and substantial difference between the two documents. I agree that the mistake in the use of the word "the," or the dropping of an article or anything of that kind would make no difference; every lawyer knows

that; but if there is a difference in substance, then you cannot say that the assent of the Legislature of Florida, which she says was given to this, was given to a different thing that she did not have before her. That is the proposition.

The question, then, with me is whether this document that is presented is substantially the fourteenth article. There does not seem to be any special question on the thirteenth. The Legislature of Florida gives notice to the United States as follows by this resolve:

Be it resolved by the people of the State of Florida in Senate and Assembly represented, That the following proposed amendments to the Constitution of the United States, known, &c., be, and the same are hereby, adopted."

They give their assent to that which follows. Mr. CONNESS. Known as what?

Mr. EDMUNDS. Known as the thirteenth

and fourteenth articles; but they say that that

which is known as the thirteenth and fourteenth articles, and that to which they agree, is here written; and they say it in good faith. That happened to be a misprint, I suppose, in the copy that they happened to have before them. Now, they assent to that. It turns out that the article Congress proposed is an entirely different thing. Are you to say that by a vote adopting this the Legislature has adopted the other and the different, one? She says that that article which is known as article fourteen to which she agrees is here written in the fol lowing language. If that language is entirely and substantially different upon a material point, can you say that she has not agreed to this, for which she has voted, and has agreed to another and a different proposal, for which she has not voted? If you can, you must possess powers of legal logic

Mr. CONKLING. What is the difference? Mr. EDMUNDS. We are coming to see what the difference is, if there be any. The only material difference-for I do not wish to occupy time about this-is that which is contained in the clause read by the Senator from Missouri last:

"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 its laws."

That is to say, the laws of that individual State. What kind of a constitutional amendment would that be if Congress should propose it in that form; if we had coolly said to the State of Mississippi, with her black code and her unequal suffrage code, "You shall not deprive any person in the State of Mississippi of the equal protection of your laws;" that is to say, "you shall enforce your laws, just as the laws themselves are required to be enforced, upon all your persons according to their respective conditions;" that is, "you shall put your laws in process of execution there fairly and fully." Then she would be bound by such a constitutional provision to exclude the black man from the suffrage, to exclude him from the witness stand, and to hang him upon the testimony of any one white man who might choose to complain; whereas the United States, in order to overcome that very inequality of State laws, differing one from another as to the equal rights of persons, declared in the fourteenth amendment that the States should not deprive any person within their jurisdiction "of the equal protection of the laws." What laws? The laws of the land which the Constitution of the United States declares to be the acts of Congress made pursuant of it. That is what Florida was not to deprive any person of within her jurisdictionthe civil rights bill, which was carried through this body by the honorable Senator from Illinois, [Mr. TRUMBULL.] Now, Florida agrees, not by any intention, I do not wish to be understoud, but as it stands here written in what she brings forward, that she will not deprive any. body within her borders of the protection of her own laws, will give them a fair chance under just such laws as she chooses to enact; and we call that a substantial agreement to what we have proposed, which was that she

Mr. EDMUNDS. Where do you get that presumption?

Mr. FRELINGHUYSEN. The presumption of law is universal, and with which my friend is very familiar, that every officer discharges faithfully and correctly his duty unless the contrary is shown. Therefore, the presumption is, that a true and correct copy was sent, and not that an erroneous one was, and that they did have the true amendment before them, and that having it before them they send us their certificate that they have adopted the thirteenth and the fourteenth amendments; and that is enough.

But they go further than that. They recite enough of those two amendments to further identify them than by their numbers. Why, sir, not only every State but every citizen of the United States knows, and is to be presumed to know, as a matter of current history, what this fourteenth amendment is. It is in every newspaper; every person reads it; and when Florida sends us word that she has adopted the fourteenth amendment, and the thirteenth amendment that is enough. Can it be that the fundamental law of a nation rests upon these critical accuracies? If you go and look at the amendments which have been adopted-I have never examined them-I venture to say that you can prove that not a single amendment has been adopted correctly to the Constitution, if leaving out the word "the" or substituting "its" for "the" is enough to upset a law. This objection would hardly be sufficient on a special demurrer to an indictment for counterfeiting. There is a principle of law which certainly we can invoke when we are dealing with great national subjects; de minimis non curat lex; the law itself will not pay attention to these little insignificant things.

Mr. DOOLITTLE. I desire to say but a word. I shall vote against this motion, but for another reason than that which is satisfactory to the minds of other gentlemen; a reason which is satisfactory to my own.

On the 3d of March, 1845, the State of Florida was admitted into the Union as one of the States of this Union. It has never been out of the Union. An effort was made to take it out of the Union, commencing in 1860; but that effort was overcome, and the State of Florida remained in the Union, and has continued to remain in the Union ever since its first admission on the 3d of March, 1845. My opinion is-I will not argue it, but simply state it-that neither by secession nor rebellion was it possible for the State of Florida to be taken out of the Union, unless that rebellion were consummated as a success and a triumph of arms in the end against the Government. The rebels had no power to cut their way out of the Union by the sword, because we wrested the sword out of their hands and compelled the State to remain in the Union as one of the States of the Union. Further, I hold it to be equally clear that Congress has no power by legislation to at a State out of the Union. Neither secession nor the legislation of Congress can accomplish it. The one is as much against the Constitution as the other.

The Legislature of the State of Florida on the 28th of November, 1866, elected Hon. William Marvin as a Senator for the term commencing on the 4th of March, 1867, to end on the 4th of March, 1878; which is the precise term for which the person who is now proposed to be admitted was elected; and, if I am correct and the paper which I have presented to the Senate, I think, proves the election of

Mr. Marvin as a Senator occupying this very term-I object to another person being sworn in to take a seat in the Senate in his place. I desired that this question should be referred to the Committee on the Judiciary and passed upon; but the Senate have been unwilling to do that, and therefore I have simply raised the point, without arguing it.

I will conclude by saying that Judge Marvin, who has been elected as a Senator from Florida, is a gentleman of high intelligence and high qualifications for the position. He was before and during the whole rebellion a most devoted friend to the Constitution and the Union, giving no aid, countenance, or comfort in any manner whatever to the rebellion; was himself acting as the judge of the district court of the United States at Key West a portion of the time, and therefore there can be no objection on the score of his not being entirely qualified to take the office or to take the oath of office which is required by law.

Mr. WILLIAMS. I should like to ask the Senator a question. He says that Florida has never been out of the Union. No one pretends that it ever has been out of the Union; but this is a question of representation. I should like to ask him if he holds that Florida, with a confederate State government, was entitled to representation in Congress?

Mr. DOOLITTLE. While Florida was under the control of the confederate arms it would be impossible for Florida to hold an election either for a member of the House or a member of the Senate; but in 1866, almost a year and a half after the war was over, after peace had been proclaimed, and Congress had by law recognized the fact that peace was proclaimed, the Legislature of Florida, the State then being in a peaceful condition, assembled and elected the person to whom I have referred and whose credentials I have presented to the Senate.

Mr. WILLIAMS. I do not understand the Senator to have answered the question which I propounded. He says that it was impossible for Florida during the rebellion while it had a confederate State government to hold an election. It was not physically impossible. Florida could have elected Senators and Representatives under that confederate State government; and the question is, would those Senators and Representatives, if elected, have been entitled at that time to admission into Congress? I should like to have the Senator make, if he pleases, a categorical answer to that question.

Mr. DOOLITTLE. I have given the Senator the answer to the question. It was in Florida precisely as it would be in Oregon if there was an insurrection there. If there was an insurrection raging in Florida you could not hold an election. If there was an insurrection raging in the State of Maine, or if part of the State of Maine was captured, as it once was by British forces, you could not hold an election there. But I do not wish to go into a dialogue or a long discussion.

Mr. HOWE. Will my colleague allow me to ask him a question?

Mr. DOOLITTLE. I have no objection to a question.

Mr. HOWE. The question is, if in fact Florida did not have a Legislature which met annually during the years of the war, which met and passed laws.

Mr. DOOLITTLE. Florida organized a war with the confederate States against the Government of the United States, but in 1866 the war was over. Senators do not come to the point I make at all. There was no war in 1866. Peace had been proclaimed, and Congress by law had recognized the fact that peace was proclaimed. There was no insurrection and no interruption of the law.

Mr. HOWE. I asked permission to put a question to my colleague, and he allowed me to do it. Now I wish he would answer it. The question is, Did not Florida have a Legisla ture which met annually to pass laws through every year of the war?

Mr. DOOLITTLE. I suppose those adhering to the confederacy elected a Legislature.