In 1865 and 1869, questions were raised when the electoral votes were
counted, that gave rise to debates in the House of Representatives and
on one occasion subsequently in the Senate. In the House, Francis
Thomas of Maryland and Samuel Shellabarger of Ohio took part. Both
were able men. Thomas had the qualities of an orator but he spoke so
infrequently that his power was not generally appreciated. On that
occasion he spoke exceedingly well, but the attendance was small, an
evening session having been assigned for debate upon that subject.
Mr. Shellabarger was logical and effective but he was destitute of
imagination utterly. At the bar since his retirement from politics he
has enjoyed a large practice, but, unfortunately, as it appears to me,
he has preserved the style of speaking which he acquired upon the
stump and in Congress. A skillful speaker must adapt himself to the
circumstance and to his audience. A stump speech, a speech in the
House of Representatives, a speech in the Senate, an argument to a
court, an argument to a jury, should each be framed on a model of its
own. Neither style will answer for any other. The degree of variance
may not be considerable and with a well disciplined person the change
may not be apparent. Mr. Webster adapted himself to every audience,
but the changes were slight. Yet there were changes. He was not over
solemn in the Supreme Court, and he was never boisterous when he
addressed the multitude.
As far as I recollect my positions and arguments in the debates upon
the counting of the electoral votes, I now discard all I said then.
My present conclusion is that upon a reasonable construction of the
Constitution there is no occasion for legislation or for an amendment
to the fundamental law. The Vice-President or the President of the
Senate is the president of the convention. He carries into the chair
the ordinary powers of a presiding officer. He rules upon all
questions that arise. He may and should rule upon the various
certificates that are sent up by the several States. If, in any case,
his ruling is objected to, the two Houses separate, and each House
votes upon the question:--"Shall the ruling of the Chair stand, etc."
If the Houses divide, the ruling is sustained. The president and one
House are a majority. The decision is in accordance with our system of
government. The suggestion that the president or that the Houses may
act under the influence of personal or political prejudice, may, with
equal force, be urged against any scheme that can be devised. The
counting of the electoral votes must be left in the hands of men, and
the Constitution has given us all the security that can be had that the
decision will be honestly made. The president of the convention and
the members of the Houses are bound by oath as solemnly as are the
judicial tribunals of the country. A judge is only a man, and he is
subject to like infirmities with other men. It is a wise feature of
our system that the courts have no voice in the political department
of our Government. The presidential office should never be in the
control of the judicial branch of the Government.
[* Letter of the Honorable Thomas B. Bryan.]
XXX
THE AMENDMENTS TO THE CONSTITUTION
I had no part in the preparation of the Thirteenth Amendment to the
Constitution, nor any part in its passage through the House other than
to give my vote in its favor. The Amendment resolution was passed by
the Thirty-eighth Congress at its last session and by the aid of
Democrats. The elections of 1864 had resulted in a two-thirds majority
and it was therefore certain that the resolution would be agreed to by
the next House. Hence there was less inducement for the Democrats to
resist its passage by the Thirty-eighth Congress. A small number of
Democrats favored the measure. English of Connecticut and Ganson of
New York were of the number. There were others also whose names I do
not recall. At the time of the contest a rumor was abroad that James
M. Ashley, of Ohio, was engaged in making arrangements with certain
Democrats to absent themselves from the House when the vote was taken.
Several were absent--some were reported in ill health. Mr. Ashley was
deeply interested in the passage of the resolution and it was believed
that he made pledges which no one but the President could keep. Such
was the exigency for the passage of the resolution that the means were
not subjected to any rigid rule of ethics.
The Fourteenth Amendment had its origin in a joint committee of fifteen
of which Mr. Fessenden of Maine was chairman. A record of its
proceedings was kept which was printed recently by order of the
Senate. From that report it appears that I proposed an amendment for
conferring the right to vote upon the freedmen of the State of
Tennessee. As far as I know that was the first time the proposition
was made in connection with the proceedings of Congress. The
committee did not concur in the proposition. Indeed the time had not
come for decisive action in that direction. The motion was made in
the committee the 19th day of February, 1866, when the admission of
the State of Tennessee into the Union was under consideration. The
motion was in these words: "Said State shall make no distinction in
the exercise of the elective franchise on account of race or color."
The motion was lost by the following vote:
Yeas: Howard, Stevens, Washburne, Morrill, Boutwell.
Nays: Harris, Williams, Grider, Bingham, Conkling, Rogers.
Absent: Fessenden, Grimes, Johnson, Blow.
The 16th day of April Senator Stewart, of Nevada, came before the
committee in support of a similar proposition that he had introduced
in the Senate April 7.
In January, 1866, a bill was under discussion in the House of
Representatives for the establishment of a government in the District
of Columbia. Mr. Hale of New York moved amendments by which the right
of suffrage by negroes would be limited to those who could read and
write, to those who had performed service in the army or navy or who
possessed property qualifications. The amendment was defeated. My
views were thus stated in one of the very small number of my speeches
that have had immediate influence upon an audience or an assembly:
"I am opposed to the instructions moved by the gentleman from New
York, because I see in them no advantage to anybody, and I apprehend
from their adoption much evil to the country. It should be borne in
mind, that, when we emancipated the black people we not only relieved
ourselves from the institution of slavery, we not only conferred upon
them their freedom, but we did more; we recognized their manhood,
which, by the old Constitution and the general policy and usage of the
country, had been, from the organization of the Government until the
Emancipation Proclamation, denied to all the enslaved colored people.
As a consequence of the recognition of their manhood, certain results
follow, in accordance with the principles of the Government; and they
who believe in this Government are, by necessity, forced to accept
those results as a consequence of the policy of emancipation which they
have inaugurated, and for which they are responsible.
"But to say now, having given freedom to the blacks, that they shall
not enjoy the essential rights and privileges of men, is to abandon
the principle of the Proclamation of Emancipation, and tacitly to admit
that the whole emancipation policy is erroneous.
* * * "What are the qualifications suggested? They are three. First
and most attractive, service in the army or navy of the United States.
I shall have occasion to say, if I discuss, as I hope to discuss, the
nature and origin of the right of voting, that there is not the least
possible connection between service in the army and navy and the
exercise of the elective franchise,--none whatever. These men have
performed service, and I am for dealing justly with them because they
have performed service. But I am more anxious to deal justly by them
because they are men. And when it is remembered, that, for months and
almost for years after the opening of the rebellion, we refused to
accept the services of colored persons in the armies of the country,
it is with ill grace that we now decline to allow the vote of any man
because he has not performed that service.
"The second is the property qualification. I hope it is not necessary
in this day and this hour of the Republic to argue anywhere that a
property qualification is not only unjust in itself, but that it is
odious to the people of the country to a degree which cannot be
expressed. Everywhere, I believe, for half a century, it has been
repudiated by the people. Does anybody contemplate such a
qualification to the elective franchise, in the case of black people
or white?
"And next, reading and writing, or reading as a qualification, is
demanded; and an appeal is made to the example of Massachusetts. I
wish gentlemen who now appeal to Massachusetts would often appeal to
her in other matters where I can more conscientiously approve her
policy. But it is a different proposition in Massachusetts as a
practical measure.
"When, ten years ago, this qualification was imposed upon the citizens
of Massachusetts, it excluded no person who was then a voter. For two
centuries, we have had in Massachusetts a system of public instruction,
open to the children of the whole people without money and without
price. Therefore all the people there had had opportunities for
education. Why should the example of such a State be quoted to
justify refusing suffrage to men who have been denied the privilege
of education, and whom it has been a crime to teach?
* * * "The negro has everywhere the same right to vote as the white
man, and I maintain still further, that, when you proceed one step
from this line, you admit that your government is a failure. What is
the essential quality of monarchical and aristocratic governments?
Simply that by conventionalities, by arrangements of conventions, some
persons have been deprived of the right of voting. We have attempted
to set up and maintain a government upon the doctrine of the equality
of men, the universal right of all men, to participate in the
government. In accordance with that theory, we must accept the ballot
upon the principle of equality. It is enjoyed by the learned and un-
learned, the wise and the ignorant, the virtuous and the vicious.
"The great experiment is going on. If, before the war, any man in
this country was disposed to undervalue a government thus conducted, he
should have learned by this time the wisdom and strength of a
government which embraces and embodies the judgment and the will of the
whole people. If the negroes of the South, four million strong, had
been endowed with the elective franchise, and had united with the
white people of that region in the work of rebellion, your armies would
have been powerless to subdue that rebellion, and you would to-day have
seen your territory limited by the Potomac and the Ohio.
* * * "We are to answer for our treatment of the colored people of this
country; and it will prove in the end impracticable to secure to men
of color civil rights, unless the persons who claim those rights are
fortified by the political right of voting. With the right of voting,
everything that a man ought to have or enjoy of civil rights comes to
him. Without the right to vote he is secure in nothing. I cannot
consent, after all the guards and safeguards which may be prepared for
the defence of the colored men in the enjoyment of their rights,--I
cannot consent that they shall be deprived of the right to protect
themselves. One hundred and eighty-six thousand of them have been in
the army of the United States. They have stood in the places of our
sons and brothers and friends. Many of them have fallen in the defence
of the country. They have earned the right to share in the government;
and, if you deny them the elective franchise, I know not how they are
to be protected. Otherwise you furnish the protection which is given
to the lamb when he is commended to the wolf.
"There is an ancient history that a sparrow pursued by a hawk took
refuge in the chief Assembly of Athens, in the bosom of a member of
that illustrious body, and that the senator in anger hurled it
violently from him. It fell to the ground dead; and such was the
horror and indignation of that ancient but not Christianized body,--
men living in the light of nature, of reason,--that they immediately
expelled the brutal Areopagite from his seat, and from the association
of humane legislators.
"What will be said of us, not by Christian, but by heathen nations
even, if, after accepting the blood and sacrifices of these men, we
hurl them from us, and allow them to become the victims of those who
have tyrannized over them for centuries? I know of no crime that
exceeds this; I know of none that is its parallel; and, if this country
is true to itself, it will rise in the majesty of its strength, and
maintain a policy, here and everywhere, by which the right of the
colored people shall be secure through their own power,--in peace,
the ballot; in war, the bayonet.
"It is a maxim of another language, which we may well apply to
ourselves, that, where the voting-register ends, the military roster of
rebellion begins; and, if you leave these four million people to the
care and custody of the men who have inaugurated and carried on this
rebellion, then you treasure up, for untold years, the elements of
social and civil war, which must not only desolate and paralyze the
South, but shake this government to its very foundation."
It was impossible in 1866 to go farther than the provisions of the
Fourteenth Amendment. That amendment was prepared in form by Senators
Conkling and Williams and myself. We were a select committee on
Tennessee. The propositions were not ours, but we gave form to the
amendment. The part relating to "privileges and immunities" came from
Mr. Bingham of Ohio. Its euphony and indefiniteness of meaning were
a charm to him. When the measure came before the Senate Mr. Sumner
opposed its passage and alleged that we proposed to barter the right
of the negroes to vote for diminished representation on the part of
the old slave States in the House and in the electoral college; while
in truth the loss of representation was imposed as a penalty upon any
State that should deprive any class of its adult male citizens of the
right to vote. Upon this allegation of Mr. Sumner the resolution was
defeated in the Senate. There were then in that body a number of
Republicans from the old slave States and over them Mr. Sumner had
large influence. The defeat of the amendment was followed by bitter
criticisms by the Republican press and by Republicans. These
criticisms affected Mr. Sumner deeply and he then devoted himself to
the preparation of an amendment which he could approve. While he was
engaged in that work I called upon him and he read seventeen drafts of
a proposition not one of which was entirely satisfactory to himself,
and not one of which would have been accepted by Congress or the
country. The difficulty was in the situation. Upon the return of the
seceded States their representation would be increased nearly forty
votes in the House and in the electoral colleges while the voting force
would remain in the white population. The injustice of such a
condition was apparent, and there were only two possible remedies.
One was to extend the franchise to the blacks. The country--the loyal
States--were not then ready for the measure. The alternative was to
cut off the representation from States that denied the elective
franchise to any class of adult male citizens. Finally Mr. Sumner was
compelled to accept the alternative. Some change of phraseology was
made, and Mr. Sumner gave a reluctant vote for the resolution.
Aside from the debates on the constitutional amendment there were
serious difficulties among Republicans in regard to the exercise of the
right of suffrage by the negroes.
Previous to the year 1868 there was a majority of Republicans who would
have imposed a qualification, some of service in the army or navy,
some of property and some of education. It was with great difficulty
that the scheme of limitation was resisted in regard to the District
of Columbia. As to the Democrats they could always be counted upon to
aid in any measure which tended to keep the negroes in a subordinate
condition. This of the majority--there was always a minority, usually
a small one, who were ready to aid in the elevation of the negro when
his emancipation had been accomplished. I do not recall the name of
one man who favored emancipation as a policy and adhered to the
Democratic Party. When a man reached the conclusion that the negroes
should be free, he could not do otherwise than join the Republican
Party. At the time of the admission of Tennessee, July, 1866, there
were only twelve men in the House of Representatives who insisted upon
securing to the negro the right to vote. A larger number favored the
scheme, but they yielded to the claim of that State to be admitted
without conditions. At that time the power of the President was not
impaired seriously, and his wishes were heeded by many. There was
also an understanding that the State would concede the right upon terms
not unreasonable.
Next to the restoration of the Union and the abolition of slavery the
recognition of universal suffrage is the most important result of the
war. It has its evils but they are incidental, and their influence is
limited to times and places, while the advantages are universal and
enduring. Universal suffrage is security for universal education. It
is security against chronic hostility to the Government and security
against the manifestation of a revolutionary spirit among the people.
They realize that with frequent elections, the evils of administration
may be corrected speedily. By a similar though slower process the
fundamental law may be changed. Hence it is in this country until
recently there was no difference of opinion as to the wisdom of the
system of government under which we are living. The existing diversity
of opinion will soon disappear. If suffrage were limited there would
be a body of discontented people ready to seize upon any pretext that
promised a change. In the present condition of our system the only
danger is due to the forcible or fraudulent withholding of the right
from those who are entitled to enjoy it. This condition of things
must soon end. The safety of a state is yet further secured by
frequent elections. The project to extend the Presidential term is
full of danger. If the term were six or ten years the presence of an
offensive or dangerous man in the office would provoke a revolution, or
cause disturbances only less disastrous to business and to social and
domestic comfort. In the little republic of Hayti there have been not
less than seventeen revolutions in the hundred years of its existence
and they were due in a large degree to the fact that the Presidential
term is seven years.
The various propositions submitted to the House of Representatives for
securing the right to vote to all the male adult citizens of the United
States were referred to the Judiciary Committee of which I was a
member. Among them was one submitted by myself. In the committee they
were referred to a sub-committee consisting of myself, Mr. Churchill
of New York, and Mr. Eldridge of Wisconsin. Mr. Eldridge as a
Democrat was opposed to the measure, and he took no interest in
preparing the form of an amendment. Churchill and myself were fellow-
boarders and we prepared and agreed to an amendment in substance that
which was adopted finally and which in form was almost the same. When
I reported the amendment to the committee not one word was said either
in criticism or commendation, nor was there a call for a second
reading. After a moment's delay Mr. Wilson, the chairman, said:--"If
there is no objection Mr. Boutwell will report the amendment to the
House." There was no objection and at the earliest opportunity I made
the report--that is, I reported the resolution for amending the
Constitution. Mr. Wilson made a speech which I have not since read,
but which made an impression upon my mind that he was opposed to the
measure, or at least had doubts about the wisdom of urging the
amendment upon Congress and the country.
The resolution passed the House as it was reported by the committee.
When it was taken up in the Senate Mr. Sumner, who was opposed to the
resolution, assailed it with an amendment that would have been fatal if
his lead had been followed by the two Houses. He proposed to insert
after the words "to vote" the words "or hold office." At that time he
was a recognized leader upon all matters relating to the negro race,
and his standing with that race was such that the Republican senators
from the slave States were obedient to his wishes. His amendment was
adopted by the Senate. In presence of the fact that Mr. Sumner was
opposed to any amendment of the Constitution upon the subject and he
proposed to rely upon a statute, it is difficult to explain his conduct
upon any other theory than that he intended to defeat the measure
either in Congress or in the States. He had claimed when the
Fourteenth Amendment was pending that a joint resolution would furnish
an adequate remedy and protection. His proposition was in these
words: "There shall be no oligarchy, aristocracy, caste or monopoly
invested with peculiar privileges and powers and there shall be no
denial of rights, civil or political, on account of color or race
anywhere within the limits of the United States or the jurisdiction
thereof: but all persons therein shall be equal before the law, whether
in the court room or at the ballot-box. And this statute made in
pursuance of the Constitution shall be the supreme law of the land,
anything in the constitution or laws of any State notwithstanding."
This resolution is a sad impeachment of Mr. Sumner's quality as a
lawyer and it is an equally sad impeachment of his sense or of his
integrity as a man that he was willing to risk the rights of five
million persons upon a statute whose language was rhetorical and
indefinite, a statute which might be repealed and which was quite
certain to be pronounced unconstitutional by the Supreme Court.
Upon the return of the resolution and amendment to the House, my own
position was an embarrassing one. I was counted as a radical and in
favor of securing to the negro race every right to which the white race
was entitled. My opposition to the Senate amendment seemed to place
me in a light inconsistent with my former professions. However, I met
the difficulty by an argument in which I maintained that the right
to vote carried with it the right to hold office. That in the United
States there were only a few exceptions, and those were exceptions
under the Constitution.
Finally, the House, by a reduced vote refused to concur with the
amendment of the Senate. It was at this crisis that Wendell Phillips
wrote an article in the _Anti-Slavery Standard_ over his own name in
which he said in substance and in words, that the House proposition was
adequate and that it ought to be accepted by the Senate. His name and
opinion settled the controversy. The Southern Republicans deserted
Mr. Sumner feeling that the opinion of Phillips was a sufficient
shield. A slight change of phraseology was made and the proposition of
the House became the Fifteenth Amendment to the Constitution of the
United States.
I wrote a letter of acknowledgment to Mr. Phillips in the opinion
that he had saved the amendment. At that time the prejudice against
negroes for office was very strong in Ohio, Indiana, Illinois and in
varying degrees the prejudice extended over the whole North.
The enjoyment of the right to vote has not been fully secured to the
negro race, but no one has appeared to deny his right to hold office.
Indeed, the Democratic Party as well as the Republican Party has
placed him in office, both by election and appointment. Thus has
experience shown the folly of Mr. Sumner's amendment.
That Mr. Sumner should have been willing to risk the rights of the
whole negro race upon a statute whose constitutionality would have
been questioned upon good ground, and which might have been repealed,
is a marvel which no one not acquainted with Mr. Sumner can
comprehend. First of all, though he was learned, he was not a lawyer.
He was impractical in the affairs of government to a degree that is
incomprehensible even to those who knew him. He was in the Senate
twenty-three years and the only mark that he left upon the statutes is
an amendment to the law relating to naturalization by which Mongolians
are excluded from citizenship. The object of his amendment was to
save negroes from the exclusive features of the statute which was
designed to apply only to the Chinese. His amendment made plain what
the committee had designed to secure. He was a great figure in the
war against slavery and as a great figure in that war he should ever
remain.
The Fourteenth Amendment saved the country from a series of calamities
that might have been more disastrous even than the Civil War. The
South might, under the Fourteenth Amendment, grant to the negroes the
right to vote but upon conditions wholly impracticable and thus have
secured their full representation in Congress at the same time that the
voting power was retained in the hands of the white race. Or they
might have denied to the negro race the right to vote and submitted to
a loss of representation. Such a policy would have given the whole
country over to contention and possibly in the end, to civil war. The
discontented and oppressed negroes, increasing in numbers and wealth,
would have demanded their rights ultimately, even by the threat of
force, or by the use of force they would have secured their rights. In
the North there would have been a large body of the people, only less
than the whole body, who would have sympathized with the negroes and
who, in an exigency would have rendered them material aid. The Dorr
War in Rhode Island and the struggles in Kansas, are instances of the
danger of attempting to found society or to maintain social order upon
an unjust or an unequal system for the distribution of political power.
It is true that at this time (1901) the operation of the Fifteenth
Amendment has been defeated and consequently the governments of States
and the Government of the United States have become usurpations, in
that they have been in the hands of a minority of men. Nevertheless
the influence of the amendment is felt by all, and the time is not
distant when it will be accepted by all. Thus our Government will be
made to rest upon the wisest and safest foundation yet devised by
man: The Equality of Men in the States, and the Equality of States in
the Union.
Mr. Sumner opposed the amendment and he declined to vote upon the
passage of the resolution. Wendell Phillips saved it in the Senate.
General Grant, more than anyone else secured its ratification by the
people. I append a copy of my letter to Mr. Phillips:
WASHINGTON, _March_ 13, 1870.
MY DEAR SIR:--
This letter will recall to your mind the circumstance that when the
Fifteenth Amendment was suspended between the two houses you published
an editorial in the _Standard_ in favor of the House proposition. Can
you send me that article? It may not be known to you that that article
saved the amendment. A little of the secret history was thus. Various
propositions were offered in the House--among them one of my own--and
all were referred to the Judiciary Committee.
In the Judiciary Committee, upon my motion the various resolutions for
amending the Constitution in that particular were referred to a sub-
committee consisting of myself, Churchill of New York and Eldridge of
Wisconsin. Churchill and myself were living at the same house and
conferred together several times. Eldridge took no interest in the
matter and never joined us--perhaps he was not invited. After an
examination of all the plans I wrote that proposed amendment which was
passed by the House and is in substance and almost in language the
amendment as adopted.
With the concurrence of Mr. Churchill I reported it to the committee
and without one word of criticism and as far as I could judge without
any particular consideration I was directed to report it to the House.
In the House it encountered considerable opposition and Mr. Wilson,
Chairman of the Judiciary Committee, made a speech which was a great
surprise to me, though directed chiefly to the bill which I had also
reported by direction of the Judiciary Committee giving at once the
right of suffrage to negroes in all national elections and for members
of the Legislature. This I thought necessary to secure the passage of
the amendment through the State Legislatures. However, the resolution
was finally passed by the House. In the Senate it met with great
opposition because it omitted to secure in terms the right to hold
office. This point had been raised in the House where I had
successfully met the proposition by the statement and an argument in
support of the statement that the right to vote as a matter of fact and
in law carries with it the right to hold office. In the Senate, Mr.
Sumner, supported by all the Southern Republicans and a part of the
Northern Republicans succeeded in substituting a new resolution
securing in terms the right to hold office. Upon the return of the
Resolution to the House I was obliged to take what appeared a
conservative position and resist the proposition to concur with the
Senate upon the ground that the change was unnecessary and that its
adoption threatened the loss of the measure in doubtful States as Ohio,
Indiana, West Virginia and others. The House adhered to its position,
yet with such weakness of purpose on the part of many who sustained me,
as indicated that they would not withstand another assault. The
struggle was then renewed in the Senate and with every indication that
the Senate would insist upon its amendment. It was then that your
article appeared. Its influence was immediate and potential. Men
thought that if you the extremest radical could accept the House
proposition they might safely do the same. Had the Senate adhered one
of two things would have happened, either the House would have seceded
or the amendment would have failed.
Had the House concurred I fear we should have failed to carry several
States which have since ratified it.
Upon reflection I think as at the time I thought that your voice saved
the Fifteenth Amendment.
I am very truly,
GEO. S. BOUTWELL.
WENDELL PHILLIPS, ESQ.
Boston.
P. S. This letter is not for the public use in so far as names are
mentioned, and of course, not for publication.
G. S. B.
The article of Mr. Phillips became so important in its influence upon
the final action of the Senate that I reproduce it in justice to Mr.
Phillips and as a further record of an historical event.
"We see the action of the Senate touching the Constitutional
Amendment with great anxiety. The House had passed a simple measure,
one covering all the ground that people are ready to occupy. It
answered completely the lesson of the war. Its simplicity gave it all
the chance that exists for any form of amendment being ratified.
"Why was it not left in that shape? Leaving out of sight the manifest
risk of attempting too much, the very fact of the little time left
before the session closes, was warning enough to clutch at anything
satisfactory and to run no risk of possible disagreement between the
Houses. We wait further knowledge before indulging any conjectures as
to the motive for this strange course of the Senate; before even
suspecting that it grew out of any concealed hate toward the whole
measure and was indeed a trick to defeat it. Whoever, in either House,
gratifies some personal whim to the extent of defeating or even
postponing this measure will incur the gravest responsibility. We
exhort every man who professes himself a friend of liberty to drop all
undue attachment to any form of words and to co-operate, heartily,
earnestly, with the great body of the members in carrying through as
promptly as possible, any form which included the substance of a
constitutional protection to the votes and right to office of the
colored race. That is the work of the hour. That is the lesson the
war has burned in on the brain and conscience of the Nation.
"To include with this, 'Nationality, education, creed,' etc., is utter
lack of common sense. Such a total forgetfulness of the commonest
political prudence as makes it hard to credit the good intentions of
the proposers.
"Our disappointment is the greater because we had reason to believe
that the Senators who have this matter in charge, would be the last
men to forget themselves at such a crisis. They have been timidly
'practical,' ludicrously tied up to precedents, when, in times past we
have urged them to some act which seemed likely to jeopard party. Then
Sir Oracle was never more sententious, more full of 'wise saws and
modern instances,' than they. The inch they were willing to move ahead
was hardly visible to the naked eye. How they lectured us on the 'too
fast' and 'too far' policy! Now in an emergency which calls for the
most delicate handling, they tear up not one admitted abuse, but
include in the grasp half a dozen obstinate prejudices, which no logic
of events has loosened. For the first time in our lives we beseech
them to be a little more _politicians_--and a little less _reformers_--
as those functions are usually understood."
Under the date of March 18, 1869, I received from Mr. Phillips a letter
in acknowledgment of my letter of thanks and commendation, in these
words:
"DEAR SIR:--
"Thank you for the intimation in your letter. I am glad if any words
of mine helped get rid of the too prompt action at that time. I
think it was of the greatest importance to act at once."
The public mind seems to be misled in regard to the scope and legal
value of the Fourteenth and Fifteenth Amendments. The amendments were
in the nature of grants of power to the National Government, and in a
corresponding degree they were limitations of the powers of the States,
but the grants of power to the nation were also subject to limitations.
Until the ratification of the amendments the States had full power to
extend the right of suffrage, or to restrict its enjoyment with the
freedom that they possessed when the Treaty of Peace of 1783 had been
signed, and when the Constitution had not been framed and ratified.
All limitations of the right of suffrage by male inhabitants of
twenty-one years of age, must fall under the control of the Fourteenth
or Fifteenth Amendments.
If in any State the right to vote shall be "denied or abridged on
account of race, color or previous condition of servitude," the
statutes may be annulled by a decision of the Supreme Court. Neither
the people of the United States in their political sovereignty, nor
the political branch of the Government in its representative capacity
can exert any direct influence upon the decision of the questions that
may arise. The questions that may arise will be judicial questions,
and they will fall under the decision of the judicial tribunals. Hence
there has never been a time when it was the duty or when it was in the
power or within the scope of the duty of the executive branch of the
National Government to take official notice of the legislation in some
of the former slave States, which is designed manifestly to limit the
voting power of the negro population in those States.
If such legislation does not fall under the Fifteenth Amendment it will
be subject to the penalty imposed by the Fourteenth Amendment,--a
proportionate loss of representative power in the House of
Representatives and in the Electoral Colleges.
As one of the three remaining members of the Committee on the
Judiciary, and as one of the three remaining members of the Committee
on Reconstruction, I wish to say, without any reservation whatever,
that the amendments are accomplishing and are destined to accomplish
all that was expected by the committees that were charged with the
duty of providing for the protection of the rights of the freedmen.
They were relived from the disparaging distinctions that came into
existence with the system of slavery. They were placed upon an
equality with other citizens and in the forms of law all
discriminations affecting unfavorably the right of suffrage must
apply equally to all citizens. The injustice and unwisdom of the
restrictive legislation in which the Southern States are indulging,
are subject of concern for the whole country, but the negro populations
have no ground for the complaint that their rights have been neglected
by the General Government.
This, however, is true: The negro population, in common with all
others, has ground for just and continuing complaint against the
legislation of Congress by which a portion of the inhabitants of the
Hawaiian Islands have been denationalized on account of race or color,
or on account of a condition of mental or physical inferiority.
The process of reasoning by which the legislation of the States of the
South is condemned, by those who uphold the legislation in regard to
Hawaii involves a question in political ethics which for the moment I
am not able to answer in a manner satisfactory to myself.
XXXI
INVESTIGATIONS FOLLOWING THE CIVIL WAR
In the years 1865, '66 and '67 three important subjects of inquiry were
placed in the hands of committees of which I was a member.
The Committee on the Judiciary of the House of Representatives by
resolutions adopted respectively the 9th and 30th days of April, 1866,
was directed "to inquire into the nature of the evidence implicating
Jefferson Davis and others in the assassination of Mr. Lincoln."
James M. Ashley of Ohio introduced a resolution for the impeachment of
President Johnson, and on the 7th day of January, 1867, the House
authorized the Committee on the Judiciary "to inquire into the official
conduct of Andrew Johnson, Vice-President of the United States,
discharging the powers and duties of President of the United States,"
etc.
By a resolution of the two Houses of Congress passed the 12th and 13th
of December, 1865, a joint committee was created under instructions to
"inquire into the condition of the States which formed the so-called
Confederate States of America and report whether they or any of them
are entitled to be represented in either House of Congress."
William Pitt Fessenden was chairman on the part of the Senate and
Thaddeus Stevens was chairman of the part of the House. Upon the
death of Mr. Stevens I succeeded to his place. The testimony taken
in these cases fills three huge volumes. No inconsiderable part of the
testimony was taken by myself, and I was but seldom absent from the
meetings of the committees.