As a faithful reader of the “Evening Post” for many years, I
have perused your article insisting that all present effort
for guaranties of national security and national faith must
be postponed, in order to obtain the ratification of the
Constitutional Amendment by which slavery is abolished throughout
the United States. If the Constitutional Amendment were not
already ratified by the requisite number of States, I should
doubt if even this most desirable object could be a sufficient
excuse for leaving the national freedman and the national
creditor exposed to peril, when exertions now can save them.
But allow me to inquire if you do not forget, that, according
to usage of the National Government in analogous cases, this
Amendment has been already ratified by the requisite number of
States, so that at this moment it is valid, to all intents and
purposes, as part of the Constitution? There was a butcher once
who looked everywhere for his knife, forgetting that he held it
between his teeth; there also was the good Dr. Dove, who was in
love without knowing it; and you have laughed, I am sure, at the
story told by Southey to illustrate this condition, where the
traveller, asking how far it was to a place called “The Pan,” was
answered directly, “You be in the Pan now.” It seems to me, that,
like the traveller, the doctor, and the butcher, you already have
what you desire; so that, even according to your programme, the
way is clear for insisting upon those other things embraced under
“Security for the Future.”
The Constitution of the United States decides that “the Congress,
whenever _two thirds of both Houses_ shall deem it necessary,
shall propose amendments to this Constitution, … which shall be
valid, to all intents and purposes, as part of this Constitution,
when ratified by _the Legislatures of three fourths of the
several States_.” On these words the simple question arises, What
constitutes the quorum?
But the usage of the National Government in analogous cases has
determined that the quorum is founded on the States _actually
participating in the Government_. This has been decided in both
Houses of Congress. The House of Representatives led the way
in fixing its quorum _according to actual representation_, or,
in other words, at “a majority of the members chosen.”[253]
The Senate, after careful consideration and protracted debate,
followed in establishing a similar rule.[254] The Constitutional
Amendment was adopted by both houses _organized according to
this rule_. The national debt has been sanctioned by both houses
_thus organized_. Treaties also with foreign powers have been
sanctioned in the Senate _thus organized_.
Applying this rule, the quorum of States requisite for the
ratification of the Constitutional Amendment is plainly three
fourths of the States _actually participating in the Government_,
or, in other words, three fourths of the States having
“Legislatures.” Where a State has no Legislature, it may be still
a State, but it cannot be practically counted in the organization
of Congress; and I submit that the same rule must prevail in
the ratification of the Constitutional Amendment. The reason of
the rule is the same in each case. If you insist upon counting
a rebel State, having no Legislature, you make a concession
to rebellion. You concede to a mutinous State the power to
arrest, it may be, the organization of Congress, or, it may be,
amendments to the Constitution important to the general welfare.
This is not reasonable. Therefore, on grounds of reason as well
as usage, I prefer the accepted rule.
If this conclusion needed the support of authority, it would find
it in the declared opinion of one of our best law-writers, who
is cited with respect in all the courts of the country. I refer
to Mr. Bishop, who, in the third edition of his “Commentaries
on the Criminal Law,” published within a few days, discusses
this question at length. In the course of his remarks he uses
the following language: “If the matter were one relating to
any other subject than Slavery, no legal person would ever
doubt, that, when there are States with Legislatures and States
without Legislatures, and the Constitution submits a question
to the determination of ‘the Legislatures of three fourths of
the several States,’ the meaning is, three fourths of the States
which have Legislatures. In fact, it does not require either
legal wisdom or legal acumen to see this, provided we look at the
point disconnected from the peculiar subject of Slavery.”[255]
The learned author then proceeds to illustrate this statement in
a manner to which I can see no answer.
To my mind all this seems so plain that I am disposed to ask
pardon for arguing it. Of course there is no question whether a
State is _in_ the Union or _out of_ the Union. It is enough that
it is without a Legislature, and on this point there can be no
question. Being without a Legislature, it cannot be counted in
determining the quorum.
Therefore, beyond all dispute, the Constitutional Amendment has
been already ratified by the requisite number of States; so
that Slavery is now constitutionally abolished twice,--first,
by the Proclamation of President Lincoln, under the war powers
of the National Constitution; and, secondly, by Constitutional
Amendment. It remains that we should provide supplementary
safeguards, and complete the good work that has been begun,
by taking care that Slavery is abolished in spirit as well as
letter, and that the freedmen are protected by further needed
guaranties. Without this additional provision, I see small
prospect of that peace and reconciliation which are the object so
near our hearts.