February 25, 1869

Mr. BOUTWELL. I rise to make the following privileged report:

The committee of conference on the disagreeing votes of the two Houses on the joint resolution (S. No. 8) proposing an amendment to the Constitution of the United States having met, after full and free conference, have agreed to recommend and do recommend to their respective IIouses as follows:

That the House recede from their amendments and agree to the resolution of the Senate, with an amendment, as follows:

In section one, line two, strike out the words" or hold office;" and that the Senate agree to the same.

GEORGE S. BOUTWELL,

JOHN A. BINGHAM,

JOHN A. LOGAN,

Managers on the part of ihe Hovse.

WILLIAM M. STEWART,

ROSCOIS CONKLING,

Ma iujoers ori the part of the Sevate.

^$fr. WOODWARD. I rise to a question of order. I had the honor of presenting a question of order the other day in regard to a committee of conference on this subject and it was overruled, upon the ground, as I understand and as it was reported I believe in the Globe, that legislation in regard to a constitutional amendment was legislation under the ordinary rules of this body, and that a committee of conference was as suitable to that kind of legislation as to ordinary legislation. My point was that this was extraordinary legislation, resulting merely in an expression of concurrence on the part of the two Houses, and did not come under the ordinary rules of legislation at all, and therefore could not go to a committee of conference. But I was overruled on that point. Now I make another point of order resulting from the position taken by the Speaker on that occasion. I hold that this report of the committee of conference must go to the President of the United States for his approval; and in support of the point I refer the Chair to that clause of the Constitution which declares that— Every order, resolution, or vote in which the concurreneeof theSenate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States, and before the same shall take effectshall be approved by him, or being disapproved bv him shall be repassed by two thirds of the Senate and House of Representatives, according to the rales and limitations prescribed in the ease of a bill."

The Chair will observe that this constitutional provision makes the only exception from ordinary legislation in cases of adjournment. The Chair has already ruled that legislation in regard to a constitutional amendment is ordinary legislation. It is either an order, a resolution, or a vote; and if it bean order, a resolution, or a vote, then it must go to the President for his concurrence.

Mr. CULLOM. I would inquire whether the gentleman is making a point of order or a speech?

The SPEAKER. The gentleman is making a point of order; it is an important one and the Chair desires to hear it.

Mr. CULLOM. It is a very long one.

Mr. WOODWARD. The gentleman seems to be very impatient, but 1 hope the Chair will allow me to state it fully.

The SPEAKER. The gentleman having stated the point of order the Chair will decide it. It has been raised once before and decided by the Chair. He will repeat the substantial points of that decision, which he thinks will satisfy the gentleman that his point is not well taken, although based by him upon the Constitution of the United States. The question was raised distinctly in 1803 in the Senate of the United States on a motion that the then proposed amendment to the Constitution should be submitted to the Piesiderit:

"On motion that the Committee on Enrolled Bills be directed to present to the President of the United States for his approbation the resolution which has been passed by both Houses of Congress proposing to the consideration of the State Legislatures an amendment to the Constitution of the United States respecting the mode of electing President and Vice President thereof, it was decided in the negative—yeas 7, nays 23."

On a distinct vote of 23 to 7 the Senate voted that the Committee on Enrolled Bills should not present the proposed amendment. This is a decision made by one of the early Congresses. But the Chair is not satisfied with having it rest on that; he is disposed to present higher authority in overruling the point of order.

In 1798 a case arose in the Supreme Court of the United States depending upon the amendment to the Constitution proposed in 1794, and the counsel? in argument before the court, insited that the amendment was not valid, not having been approved by the President of the United States. The Attorney General, Mr. Lee, in reply to this argument, said:

"Has not the same course been pursued relative to all other amendments that have been adopted? And the ease of amendments is evidently a substantive act, unconnected with the ordinary business of legislation, and not within the policy or terms of investing the President with a qualified negative on the acts and resolutions of Congress.”

That was the remark ef the Attorney General. But the Chair does not rest his decision upon that. He sustains it by the decision of the Supreme Court of the United States. The court, speaking through Chase, Justice, in reply to the Attorney General, observed:

There can surely be no necessity to answer that argument. The negative of the President applies only to the ordinary cases of legislation. He has nothing to do with the proposition or adoption of amendments to the Constitution."

As the Supreme Court of the United States has settled this question by a decision, the Chair does not need to read further authorities. But this question came before the Senate of the United States recently, since the recent exciting questions have been before the country, and the chairman of the Judiciary Committee of the Senate [Mr. Trumbull] offered the following resolution:

"Resolved, That the article of amendment proposed by Congress to be added to the Constitution of the United States respecting the extinction of slavery therein having been inadvertently presented to the President for his approval, it is hereby declared that such approval was unnecessary to give efl ect to the action of Congress in proposing said amendment, inconsistent with former practice in reference to all amendments to the Constitution heretofore adopted, and being inadvertently done, should not constitute a precedent for the future; and the Secretary is hereby instructed not to communicate the notice of the approval of said proposed amendment by the President to the House of Representatives."

Upon that resolution the Senator from Maryland, Mr. Reverdy Johnson, who had been formerly Attorney General of the United States, made a speech which the Chair will not quote, corroborating, however, the opinion of the Chair, and the Senate adopted the resolution of Mr. Trumbull without a division and without the yeas and nays.

The Chair, therefore, thinks that the question is settled, not only by the practice of Congress, but by a decision of the Supreme Court of the United States, and therefore overrules the point of order.

Mr. BOUTWELL. I propose to let the House understand what this report of the committee of conference is. It is the original proposition of the Senate with the words" and hold office" stricken out; so that if the report be agreed to the proposed amendment will read:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

I am happy to be able to say, as the report shows, that it is unanimous so far as the managers on the part of the House are concerned, and I presume that the House is ready to vote upon the report of the committee. 1 demand the previous question unless some gentleman desires to debate the report, which I hope will not be the case at this late hour of the session.

The SPEAKER. The Chair will state that it requires a two thirds vote to agree to the report.

Mr. POLAND. I ask that the Clerk may read the proposed constitutional amendment as it will stand if this report is adopted.

The Clerk read as follows:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

The previous question was seconded and the main question ordered.

Mr. NIBLACK. Do I understand the Chair to say that it requires a two thirds vote to agree to the report?

The SPEAKER. It is the opinion of the Chair that every part of the proceeding must be covered by a two thirds vote in both branches.

Mr. BOUTWELL and Mr. NIBLACK called for the yeas and nays on agreeing to the report of the committee of conference.

The yeas and nays were ordered.

The question was taken; and there were— yeas 144, nays 44, not voting 35; as follows:

YEAS—Messrs. Allison, Ames, Anderson, Arnell, Delos It. Ashley, James M. Ashley, Bailey, Baker, Banks, Beaman, Beatty, Benjamin. Benton, Bingham, Blaine, Blair, Boutwell. Bowen, Boyden, Bromwell, Broomall, Buckley. Benjamin F. Butler, Roderick R. Butler, Callis, Churchill, Header W. ©arise, Sidney Clarke, Clift# Cobb, Coburn, Cook, Corloy, Cornell, Covode, Cullom, D wes Dickey, Podge, Donnelly, Driggs, Eckley, Eggleston, El a., Thoinas B. Bwft, James T. Elliott, Farnsworth, Rertiss, Ferry, Fields, French, Garfield, GosS, Gove, Gravely, Griswold, Hamilton, Harding, Haughey, Heaton, Tludiy, Hill, Hooper, Hopkins, Chester D. Hubbard, Huiburd, Hunter, Ingersoll, Jenckes, Alexander H. Jones, Judd, Julian. Kelley, Kellogg, Kelsey, Ketcham, Kucben, Koontz, Laflin, Lash, William Lawrence, Logan, Lynch, Marvin, Jtaynard, McCarthy, McKee, Mereur, Miller, Moore, Moorhead, Morrell, Mullins, Myers. Newsham Norris, N uun, O Neill Orth, Paine, Perham, Peters, Pettis, Pike, Plants, Poland Pomeroy Price, Prince, Raum, Robertson, Roots, Sawyer, Scofield, Shanks, Shellabarger, Smith, Spalding, Starkweather, Stevens, Stewart, Stokes, Stover, Taffe, Thomas, John Trimble, Trowbridge, Twichell. Upson. Van Aernam, Burt Van Horn, Robert T. Van Horn, Ward, Oadwahuicr 0. Washburn, Henry D. Washburn, William B. Washburn, Welker, Whittemore, Thomas Williams, William Williams, James P. Wilson, John T. Wilson, Wimloin, and the Speaker—144.

NAYS—Messrs. Archer, Axtell, Barnes, Beck, Boyer, Brooks, Burr, Cary, Chanler, Eldridge, Fox, Gets, Glossbrenner, Golladay, Grover, Haight, Hawkins. Holman, Hotchkiss, Richard D. Hubbard, Humphrey, Johnson, Thomas L. Jones, Kerr, Knott, Longhridge, Mallory, Marshall. McCormiek, McCullough, Mungen, Niblack, Nicholson, Phelps, Pruyn. Robinson, Ross, Stone, Taber, Van Auken, Van Trump, Wood, Woodward, and Young—44.

NOT V OTlN Messrs. Adams, Baldwin, Barnum, Blackburn, Boles, Buckland, Cake, Delano, Deweese, Dixon. Dockery, Edwards, Halsey, Asahel W. Hubbard, George V. Lawrence. Lincoln, Loan, Morrissey, Newcomb, Pierce, Pile, Polsley, Randall, Schenck, Selye, Sitgreaves, Sypher. Taylor. Tift, Lawrence S. Trimble, Van Wyck, Vidal, Elihu B. Washburne, Stephen F. Wilson, and Woodbridge—35.

The SPEAKER. The Chair votes in the affirmative upon agreeing to the report of the committee of conference, which in the opinion of the Chair requires atwo thirds vote. Upon this question the yeas are 145, nays 44. Two thirds having voted in the affirmative, the report is agreed to.

Mr. BOUTWELL moved to reconsider the vote by which the report was agreed to; and also moved that the motion to reconsider be laid on the table.

The latter motion was agreed to.