History of the Thirty-Ninth Congress of the United States Part 27

"Ever since the adoption of the Const.i.tution of 1790 down to the time of firing on Fort Sumter, South Carolina was in practical relation to this Government as a State of this Union. She had been considered as having a republican form of government, and that which we had guaranteed as such for many years we would be bound to guarantee to her hereafter. Stronger than ever this oligarchy would be enthroned upon their old seat of power, not upheld merely by slaves beneath it, but by the power of the General Government above and around it. She might make any of the discriminations which I have suggested, of age, of residence, of previous servitude, and of ignorance or poverty."

Mr. Trimble, of Kentucky, was "exceedingly gratified at the disposition manifested among the party in opposition here, by reason of their own differences of opinion, to allow an opportunity to us to present our objections to the measure now under consideration. This subject of amending the Const.i.tution under which we have lived so long, so happily, and so prosperously, is one of great moment; and while I have some confidence in the ability and capacity of some of the friends on the opposite side to make a const.i.tution, yet I prefer the Const.i.tution as made by our fathers eighty years ago.

"In my opinion, the amendment proposed is in violation of the reserved rights of the people of the States under that instrument. The object and purpose of this resolution is to enfranchise a million men in this country whom no political party in this country ever had the boldness to propose the enfranchis.e.m.e.nt of prior to the present session of Congress. I remember that, in 1860 and 1861, the party known in this country as the Union party took the ground, from one end of the country to the other, that neither Congress nor the people of the States had the power, under the Const.i.tution of the United States, to interfere with slavery in the States where it existed; much less, sir, did they claim the power not only to destroy it, but to strike down the provisions of the Const.i.tution that protected me and my const.i.tuents in our right to our property. Sir, there was an amendment submitted then for the purpose of peace, for the purpose of restoring peace and quiet throughout the country. It met, at the time, my hearty support, and I regret, from the bottom of my heart, that the people, North, South, East, and West, did not agree to that proposition, and make it part and parcel of the Const.i.tution. I refer to the amendment proposed in 1861, declaring that Congress should never thereafter interfere with the question of slavery in the States.

"Sir, it is a well-established principle that no one should be permitted to take advantage of his own wrong. If the party in power have succeeded in freeing the slaves of the South, ought they not, at least, to allow the Southern States to enjoy the increased representation to which, according to the rule established by the Const.i.tution, they are now ent.i.tled? Or, if the Northern States sincerely desire that the negroes of the South shall vote and shall be represented in Congress, let them transport those negroes to the North and take them under their guardians.h.i.+p; they are welcome to them.

"I believe that the people of Kentucky, whom I in part represent, and I have no doubt the people of the whole South, will submit in good faith to the const.i.tutional amendment abolis.h.i.+ng slavery. While they may believe that the amendment is revolutionary and unjust, in violation of the rights of Kentucky and the South, still the Southern States, having in a way yielded up this question, for representation and peace, they will stand by the Const.i.tution as amended."

Finally, Mr. Trimble presented the following argument against the measure: "This proposition is a direct attack upon the President of the United States; it is a direct attack upon the doctrines and principles taught by that distinguished man now holding the presidential chair. This amendment is in violation, in my judgment, of every principle that that man has held from his boyhood up to the present hour. Sir, the President of the United States does not believe that the Congress of the United States has the right, or that the people have the right, to strike down the inalienable right of the States to settle for themselves who shall be clothed with that high privilege--suffrage."

The subject being resumed on the following day, January 24th, Mr.

Lawrence, of Ohio, addressed the House, premising his remarks by a motion that the resolution and amendments be recommitted to the Committee on Reconstruction, "with instructions to report an amendment to the Const.i.tution which shall, first, apportion direct taxes among the States according to property in each; and which shall, second, apportion Representatives among the States on the basis of adult male voters who may be citizens of the United States."

He argued that "the rule which gave representation to three-fifths of the slave population was wrong in principle, and unjust in practical results. It was purely arbitrary, the result of compromise, and not of fixed political principles, or of any standard of abstract justice. If slavery was a just element of political strength, I know of no rule which could properly divide it into 'fractional quant.i.ties;' if it was not a just element of political strength, I know of no rule which could properly give it 'fractional power.'

"The basis of representation was unjust in practical results, because it gave to chattel slavery political power--a power accorded to no other species of property--thus making what the slave States regarded as wealth an element of political strength."

After having given a statistical table showing how representation was apportioned among the several States having free and slave population, Mr. Lawrence deduced the following facts: "New Hamps.h.i.+re, with a white population of 325,579, has but three Representatives, while Louisiana, with a white population of 357,629, had five. California, with a white population of 323,177, has but three Representatives, while Mississippi, with a similar population of 353,901, had five. In South Carolina 72,847 white persons had one Representative, while the ratio of representation is one for 127,000 persons.

"Under this mode of apportionment, the late slave States had eighteen Representatives, by the census of 1860, more than their just share, if based on free population. The whole political power of Ohio was counterbalanced by slave representation. It was equal to two-thirds of all the representation from New England. In South Carolina 14,569 votes carried as much political power as 25,400 in the free States."

Freedom having been given to the slaves, "the effect will be, so soon as lawful State Governments are created in the rebel States, to largely increase their representation in Congress and the Electoral College. The slave population, by the census of 1860, was 3,950,531.

Three-fifths of this, or 2,370,318, has heretofore entered into the basis of representation. Now, the additional 1,580,213 is to be added to that basis. This will give ten additional Representatives to the late slave States--in all twenty-eight more than their just proportion upon a basis excluding the late slaves. If this injustice can be tolerated and perpetuated, and the late rebel States shall soon be admitted to representation, they will enjoy as the reward of their perfidy and treason an increased political power. This will reward traitors with a liberal premium for treason."

As to the proper time for amending the Const.i.tution, Mr. Lawrence said: "But if ever there could be a time for making fundamental changes in our organic law, and ingrafting on it irreversible guarantees, that time is now. The events of the past four years demonstrate their necessity, and our security for the future imperatively demands them at our hands. The great events which have transpired, and the altered circ.u.mstances that surround us, admonish us that we will be recreant to our trusts if we fail to inscribe justice on the Const.i.tution, and fortify it against the encroachments of treason, so that it shall be eternal. One of the elements of our past misfortunes, and which gave power for evil to the enemies who a.s.sailed us in this temple, was unequal and unjust representation--political power wielded by a dominant cla.s.s, augmented by concessions on behalf of a disfranchised and servile race, insultingly declared almost in the very citadel of national justice as having no rights which a white man was bound to respect. By this amendment we strike down the iniquity of one cla.s.s wielding political power for another, and arrogant because in the exercise of unjust power."

Maintaining that representation should be based upon suffrage, Mr.

Lawrence said: "The reason which conclusively justifies it is, that a people declared by law, if in fact unprepared for suffrage, should not be represented as an element of power by those interested in forever keeping them unprepared. But children never can be qualified and competent depositaries of political power, and, therefore, should not enter into the basis of representation. It never has been deemed necessary for the protection of females that they should be regarded as an element of political power, and hence they should not be an element of representation. If the necessity shall come, or if our sense of justice should so change as to enfranchise adult females, it will be time enough then to make them a basis of representation."

Mr. Sh.e.l.labarger, of Ohio, though having "fifteen times as much respect for the opinions of the Committee on Reconstruction" as for his own, yet suggested the following as objections to their report:

"1. It contemplates and provides for, and in that way, taken by itself, authorizes the States to wholly disfranchise entire races of its people, and that, too, whether that race be white or black, Saxon, Celtic, or Caucasian, and without regard to their numbers or proportion to the entire population of the State.

"2. It is a declaration made in the Const.i.tution of the only great and free republic in the world, that it is permissible and right to deny to the races of men all their political rights, and that it is permissible to make them the hewers of wood and drawers of water, the mud-sills of society, provided only you do not ask to have these disfranchised races represented in that Government, provided you wholly ignore them in the State. The moral teaching of the clause offends the free and just spirit of the age, violates the foundation principles of our own Government, and is intrinsically wrong.

"3. The clause, by being inserted into the Const.i.tution, and being made the companion of its other clauses, thereby construes and gives new meanings to those other clauses; and it thus lets down and spoils the free spirit and sense of the Const.i.tution. a.s.sociated with that clause relating to the States being 'republican,' it makes it read thus: 'The United States shall guarantee to every State in this Union a republican form of government;' provided, however, that a government shall be deemed to be republican when whole races of its people are wholly disfranchised, unrepresented, and ignored.

"4. The report of the committee imposes no adequate restraint upon this disfranchis.e.m.e.nt of races and creation of oligarchies in the States, because after a race is disfranchised in a State it gives to one vote cast in such State by the ruling race just the same power as a vote has in a State where no one is disfranchised.

"5. These words of the amendment, to-wit, 'denied or abridged on account of color,' admit of dangerous construction, and also of an evasion of the avowed intent of the committee. Thus, for example, the African race may, in fact, be disfranchised in the States, and yet enumerated as part of the basis of representation, by means of a provision disfranchising all who were slaves, or all whose ancestors were slaves.

"6. The pending proposition of the committee is a radical departure from the principles of representative republican government, in this, that it does not provide for nor secure the absolute political equality of the people, or, relatively, of the States. It does not secure to each vote throughout the Government absolute equality in its governing force. It, for example, permits twenty-five thousand votes in New York city to elect two members of Congress, provided one-half of its population should happen to be foreigners unnaturalized, and not electors of the State, whom the law deems unfit to vote; whereas, twenty-five thousand votes in Ohio would elect but one member of Congress, provided her citizens were all Americans instead of foreigners."

Mr. Eliot submitted an amendment to the effect that population should be the basis of representation, and that "the elective franchise shall not be denied or abridged in any State on account of race or color."

He stated the following grounds of objection to the resolution offered by the committee: "First, the amendment as it is now reported from the committee is objectionable, to my mind, because it admits by implication that a State has the right to disfranchise large ma.s.ses of its citizens. No man can show that in that Const.i.tution which the fathers made, and under which we have lived, the right is recognized in any State to disfranchise large ma.s.ses of its citizens because of race. And I do not want now, at this day, that the Congress of the United States, for the purpose of effecting a practical good, shall put into the Const.i.tution of the land any language which would seem to recognize that right.

"The next objection I have to the amendment is this: that it enables a State, consistently with its provisions, by making the right to vote depend upon a property qualification, to exclude large cla.s.ses of men of both races. A State may legislate in such a way as to be, in fact, an oligarchy, and not a republican State. South Carolina may legislate so as to provide that no man shall have the right to vote unless he possesses an annual income of $1,000, and holds real estate to the amount of five hundred acres. Every one sees that that would exclude mult.i.tudes of all cla.s.ses of citizens, making the State no longer republican, but oligarchical. Yet gentlemen say that under the Const.i.tution Congress is bound to see to it that each State shall have a republican form of government.

"The third objection I have to this amendment is, that it controls by implication that power; because, while the Const.i.tution now says that Congress shall guarantee to every State a republican form of government, this amendment, as reported by the committee, admits by implication that, although a State may so legislate as to exclude these mult.i.tudes of men, not on account of race or color, but on account of property, yet, nevertheless, she would have a republican form of government, and that Congress will not and ought not to interfere."

Mr. Pike, of Maine, had, on the a.s.sembling of Congress after the holidays, offered a resolution, expressing the idea contained in the report of the committee, but on reflection had come to the conclusion that the resolution would not accomplish the purpose desired. He stated his reasons for changing his opinion. He thought that the provisions of the proposed amendment might be evaded. "Suppose," said he, "this const.i.tutional amendment in full force, and a State should provide that the right of suffrage should not be exercised by any person who had been a slave, or who was the descendant of a slave, whatever his race or color. I submit that it is a serious matter of doubt whether or not that simple provision would not be sufficient to defeat this const.i.tutional amendment which we here so laboriously enact and submit to the States."

Mr. Conkling thought that this criticism could have no practical importance, from the fact that the proposed amendment was to operate in this country, where one race, and only one, has been held in servitude.

Mr. Pike replied: "In no State in the South has slavery been confined to any one race. So far as I am acquainted with their statutes, in no State has slavery been confined to the African race. I know of no slave statute, and I have examined the matter with some care, which says that Africans alone shall be slaves. So much for race. As to color, it was a common thing throughout the whole South to advertise runaway slaves as having light hair and blue eyes, and all the indications of the Caucasian race, and 'pa.s.sing themselves off for white men.' I say further to the honorable gentleman from New York, that well-authenticated instances exist in every slave State where men of Caucasian descent, of Anglo-Saxon blood, have been confined in slavery, and they and their posterity held as slaves; so that not only free blacks were found every-where, but white slaves also abounded."

Mr. Kelley, who next addressed the House, also brought proof to controvert the "hasty a.s.sertion" that but one race had been enslaved: "The a.s.sertion that white persons have been sold into slavery does not depend on common report, but is proven by the reports of the superior courts of almost every Southern State. One poor German woman, who had arrived in our country at thirteen years of age, was released from slavery by the Supreme Court of Louisiana, but not until she had become the mother of three mulatto children, her owner having mated her with one of his darker slaves. Toward the close of the last century, the Supreme Court of New Jersey decided that American Indians could be reduced to and legally held in slavery. And so long ago as 1741 white slave women were so common in North Carolina, that the Legislature pa.s.sed a law dooming to slavery the child of every 'white servant woman' born of an Indian father."

Mr. Kelley thought that the enforcement of this long-dormant power of the Const.i.tution would be for the benefit not merely of the poor, the ignorant, and the weak, but also of the wise, "the strong, and the wealthy of our country." "There is now pending," said he, "before the Legislature of regenerated and, as gentlemen would have us believe, reconstructed Virginia, a bill to require five years' residence on the part of citizens of other States who may invest their capital and settle within the sacred limits of the Old Dominion before they can acquire citizens.h.i.+p. If they may pa.s.s a limitation of five years, why may they not pa.s.s a limitation of fifty? Why will not any limitation that comes within the ordinary duration of human life be admissible?"

Mr. Bromwell, obtaining the floor, inquired whether the question was in such condition that any amendment or subst.i.tute could be offered.

The Speaker replied: "Six amendments are pending now. The only one that could be offered would be to amend the amendment of the gentleman from Pennsylvania, [Mr. Stevens,] which was, to add the word 'therein'

in the fifteenth line. No other amendment would be in order now, the whole legislative power to amend being exhausted."

Mr. Bromwell had desired to offer an amendment which, in his opinion, would obviate many of the objections to pending joint resolution, and the amendments thereto; but the way not being open for this, he addressed the House in a brief speech. He said: "When this amendment was introduced, on last Monday morning, the differences of opinion which have been developed in reference to the principles of the amendment were not antic.i.p.ated. But to-day we see that it has, so far, not an advocate upon this floor. Such may be the result with every amendment which may be presented. It is difficult to see, among all the amendments which are now pending, any one of them, or any combination of them, that will meet the desire of the majority, not to say two-thirds of this House. I apprehend that the members of this House desire to act so as to secure the support of a proper majority here. I apprehend, also, that they desire to make this amendment such that it will meet with the sanction of a sufficient number of the States of the Union to make it effectual. Now, sir, it is in vain for this Congress to launch an amendment which shall die on the road through the Legislatures."

Notwithstanding the difficulties in the way of all the plans proposed, Mr. Bromwell was heartily in favor of modifying the basis of representation. "I think," said he, "seventy years is long enough for fifteen, twenty, or thirty Representatives to sit here and make laws to apply to Northern people, with no const.i.tuencies behind them. I think it has been seen long enough that a large number of persons called property, made property by the laws of the States, shall give to the oligarchs of those particular districts of country the right to outvote the independent men of the North, of the free States, where some approximation has been made to securing G.o.d-given rights to all inhabitants. I think that it is wrong that the further a State recedes from common right and common justice the more power the oligarchy which controls it shall grasp in their hands; and I desire that this amendment shall be made so that it shall bear down upon that abuse with the crus.h.i.+ng power of three-fourths of the legislatures of the Union."

After the House had heard so many objectors to the basis of representation, as proposed by the committee, Mr. Cook, of Illinois, took the floor in favor of the measure. He said: "We have now, as I believe, the golden opportunity to remedy this evil which will never come again to the men of this generation. The system of slavery has fallen. The States whose representation was increased by it have, with two or three exceptions, destroyed their loyal and legal State governments, and now seek reconstruction. The adoption of this amendment by the States lately in rebellion should be one of the guarantees to be insisted upon as a condition precedent to their taking equal authority and rank in the Union with the loyal States."

To the proposition that the basis of representation should be voters only, Mr. Cook presented the following objections:

"1. It is difficult to enumerate voters accurately; their qualifications are fixed by State laws. We can not send Federal officers into every State to adjudicate, in disputed cases, the rights of those claiming to be voters under the State laws, as we should have to do.

"2. It would not be just; the voters of the country are unequally distributed. The old States have fewer, the new States more, voters according to the white population. In other words, there is a greater proportion of women and children in the old States. These should be and are represented. They are represented, in the true sense of that word, by their fathers and brothers. The man who represents them does so really and practically, and not by legal fiction, like the man who represents 'three-fifths of all other persons.'

"3. It takes from the basis of representation all unnaturalized foreigners. I do not wish to discuss the question whether this would be judicious or not, but I do not want a measure of this almost supreme importance loaded down with these questions, and its pa.s.sage jeopardized by the incorporation of provisions which, would render it so liable to attack and misrepresentation."

Mr. Cook referred as follows to some objections urged against the basis of representation proposed by the Reconstruction Committee: "It is said that the Southern States may impose a property qualification, and so exclude the negroes, not on account of race or color, but for want of a property qualification, or that they might provide for a qualification of intelligence, and so disfranchise the negroes because they could not read or write, and still enumerate them. To do this they must first repeal all the laws now denying suffrage to negroes; and, second, provide qualifications which will disfranchise half their white voters; two things neither of which will, in any human probability, occur. And in the event that it was possible that both these measures should be adopted, and all the blacks and half the whites disqualified, it would become a grave question whether the provision of the Const.i.tution which requires the United States to guarantee to each State a republican form of government would not authorize the Government to rectify so gross a wrong. There is no measure to which fanciful objections may not be urged; but I believe this to be the least objectionable of any measure which has been suggested to meet this evil. But above all, I am well persuaded that it is the only measure that can meet the approval of three-fourths of the States; consequently, that this is the only practical measure before the House."

Mr. Marshall, of Illinois, declared the proposition, as reported by the committee, to be "wholly untenable, is monstrous, absurd, d.a.m.nable in its provisions, a greater wrong and outrage on the black race than any thing that has ever been advocated by others."

He thus set forth the measure in the light of injustice to the negro: "The gentlemen who report it profess to be, and doubtless are, the peculiar advocates of the African race. I wish to ask them upon what principle of justice, upon what principle of free government, they have provided that if, after this amendment is adopted, South Carolina, Mississippi, or any other State shall adopt a provision that all white men over twenty-one years of age shall be voters, and all black men who have two hundred dollars' worth of property, and if there shall be ten thousand legal black voters in such State, upon what principle will you place in the Const.i.tution of the United States a provision which would deprive these ten thousand legal black voters of any representation upon the floor of Congress, or of being considered in the basis of representation? And I wish to ask the honorable gentleman who reported this amendment if that is not the effect and result of the amendment reported from the committee."

In reference to the time and place of inaugurating const.i.tutional amendments, Mr. Marshall used the following language: "If any amendments are necessary to the Const.i.tution of our country, this is not the time, and more especially is this not the place, to inaugurate such amendments. I believe, notwithstanding the conceded wisdom, ability, and virtue of this House, that the fathers who framed our glorious Const.i.tution were wiser, better, and n.o.bler than we are; yet every day we have offered here some dozen or twenty proposed amendments to the Const.i.tution, offered as if we were discussing resolutions in a town meeting."

[Ill.u.s.tration: Robert C. Schenck.]

Among the propositions before the House relating to this subject, was an amendment proposed by Mr. Schenck, of Ohio, providing that representation should be based upon "the number of male citizens of the United States over twenty-one years of age, having the qualifications requisite for electors of the most numerous branch of the State legislature."

Mr. Schenck addressed the House, and thus gave a history of his own connection with the measure: "At a very early day in this session, I was one of those disposed to ask the attention of Congress to the subject, to propose in proper form the submission of the question to the Legislatures of the several States. On the first day of the session, on the 4th of December last, as soon as the House was organized, I gave notice that I would on the next, or some succeeding day, introduce a proposition to amend the Const.i.tution. On the ensuing day I did accordingly present a joint resolution. It stands as House Resolution No. 1 of the session.

"In that I propose representation hereafter shall be based upon suffrage. I propose that representation shall be apportioned among the several States of the Union according to the number of voters having qualifications requisite for electors of the most numerous branch of the Legislature of the State where they reside, following in this the language of the Const.i.tution; these voters, however, to be further limited in their descriptions and definitions as being male citizens of the United States over twenty-one years of age. Now, whether the proposition be a good one or not; whether the limitation be such as should commend itself to the ma.s.ses of our people, I will not for the present inquire. I will only remark they have seemed to me to embrace as many qualifications as we ought to include when we are going to lay down a new organic law on this subject."

An objection urged by Mr. Schenck against the plan proposed by the committee was, that it failed to offer inducements for a gradual enfranchis.e.m.e.nt of the negro. He said: "Now, sir, I am not one of those who entertain Utopian ideas in relation, not merely to the progress, but to the immediate change of sentiment, opinions, and practice among the people of those States that have so lately been slave States, and so recently in rebellion. I believe that, like all other people, their growth toward good and right and free inst.i.tutions must necessarily be gradual; and if we pa.s.s the amendment which I have proposed, or any thing similar to it, and say to them, 'You shall have representation proportioned to the portion of your population to which you extend this inestimable franchise,' my belief is that they will not, on the next day after it becomes a part of the organic law of the United States, at once enfranchise all the negroes in their midst. I am not sure that they ought to do it; but we are dealing with the matter now as it presents itself as a practical question. What will they probably do? My belief is, that if you persuade them to do right, if you hold out to them an inducement for letting their negroes vote, and striking out these disqualifications and putting all upon the basis of manhood, they will probably begin, after the amendment becomes part of the organic law, by extending this right to those who have acquired certain property; perhaps they will also extend it, after awhile, to those who have certain qualifications of education.

However they may proceed, whether rapidly or slowly, it will be a work of progress and a work of time. But by this amendment you would say to them, 'We do not want you to enter upon any such gradual bringing up of these people to the level plain of right to be enjoyed by them equally with others of other races in your midst.' We say to them, 'You may enfranchise one-third or one-fourth of your people who are black and deprived of the privilege of voting by introducing the qualification of property, up to which one-third or one-fourth may come; you may introduce a qualification of education, up to which a number of them may come; but that will all be of no value; so long as there is any denial or any abridgement of the right to vote of a single man on account of his race or color, you shall have no part of the population of that race or color counted to measure to you your share of representation.'