January 11, 1865

The SPEAKER. The regular order of business is the consideration of the business in which the House was engaged at the adjournment yesterday, being the motion to reconsider the vote by which the House on the 15th of last June rejected a joint resolution (S. No. 16) submitting to the Legislatures of the several States a proposition to amend the Constitution of the United States, on which the gentleman from Ohio [Mr. C. A. White] is entitled to the floor.

Mr. C. A. WHITE. Mr. Speaker, this is a proposition to amend the Constitution of the United States so as to prohibit the existence of the institution of slavery throughout the entire territorial jurisdiction of the United States, and conferring upon Congress plenary power to pass all necessary enactments to enforce this provision of the Constitution. I do not propose at this time to enter upon a discussion of the abstract question of slavery. This, sir, is not so much a question of expediency, in my mind, as a question of right and of power, and as such I propose to discuss it to day There are many questions entering into the discussion of this question which are purely questions of expediency; such as the propriety of submitting to the people an amendment to the fundamental law of the land at a time when we are engaged in a most terrible revolution, and when the public mind and the public attention are riveted upon the events which are transpiring daily in our midst, and when it would be almost impossible to secure to this amendment that careful and serious consideration which it demands at the hands of the American people ^nd of the American Congress.

But, sir, 1 maintain that we have no power, that the Congress of the United States has no cognizance of the subject matter under consideration so as to affect the status of individuals; that it is solely and exclusively within the power of the States; and that the fifth article of the Constitution providing for amendments does not confer upon the Congress of the United States any jurisdiction or any power beyond the grants and delegations of power plainly and distinctly written down m the Constitution. The very term" amendment" is itself a word of limitation. This is notachange, an alteration, a modification, an enlargement, or a diminution of any provision already existing in the Constitution, but it is a supplement added to the Constitution separate, independent, distinct, substantive clause, disconnected with any grant or delegation of power written down in the Constitution.

Did the States, when they ratified the Constitution of the United States, intend by the fifth article of that Constitution to confer upon two thirds of Congress and three fourths of the States unlimited power? If the construction claimed by gentlemen upon the other side be true, it is so. All then that you would have to do in order to make the Congress of the United States as omnipotent as the Parliament of Great Britain would be to change the fifth article of the Constitution, and provide that a majority of a quorum in Congress might amend the Constitution, and that would confer upon the Congress of the United States as plenary, omnipotent, unlimited power over every subjectof legislation, ay, sir, it would make the Congress of the United States as omnipotent as the English Parliament. Does any man believe that the people of the States who adopted this Constitution, jealous as they were of the encroachments of centralized power, would have incorporated any such provision as that in the Constitution if they had so understood it?

1 maintain, therefore, that the proposed amendment of the Constitution cannot be made of binding force and effect upon the States except by the ratification and consent of the States given in the exercise of the sovereign power of the States; that even the Legislatures of the States have not the power to give the consent. Sir, it is written down in the Constitution, tenth amendment, that no person shall be deprived of life, liberty, or property except by due process of law."

What is u process of law?" It imports day in court and trial by jury. Is not the light of the master to the service of the slave property? Those who made our Constitution for us and the States that ratified it so understood. I will not allude to the express provisions of the Constitution in which we have a direct recognition of the right to service in slaves as property in fixing the basis of taxation and representation, and in other respects. Every one of the original thirteen States while the constitutional Convention was laboring to effect the completion of that instrument was a slave State; and at the time of its adoption each State except one was a slave State.

That is property which the local municipal law recognizes as property. I cannot accept the doctrine of the gentleman from Illinois, [Mr. Farmsworth,] that that is property which God makes property. Why, sir, I think that he would have great difficulty in tracing the title of his land if he would attempt to trace it to that omnipotent source. Adopting that doctrine, he would find a link miss- 11 ing in the chain of almost every title in the land.

Mr. FARNSWORTH. I wish to inquire of the gentleman whether if the municipal law should declare him property that would make him property?

Mr. C A WHITE My answeris thatifthe local, municipal law provided that another man 'should have property in my service, my service would be his property. The 'guarantee of the Constitution is for the enforcement of the local municipal laws by the concentration of the power of the whole people. The parent has the right to the service of his child; he has a property in the service of that child. A husband has aright of property in the service of his wife; he has the right to the management of his household affairs. The master has a right of property in the service of his apprentice. All those rights rest upon the same basis as a man s right of property in the service of slaves. The relation is clearly and distinctly defined by the law, and as clearly and distinctly recognized by the Constitution of the United States.

Mr. FARNSWORTH. 1 would like to put another inquiry to the gentleman. I understand him to announce the doctrine that any man is property who is made so by municipal law.

Mr. C. A. WHITE. That, sir, is not the question.

Mr. FARNSWORTH. I wish now to ask the genileman what he understands by the phrase in the Declaration oflndependence in regard to man s inalienable right to liberty." In the opinion of the gentleman, has any man an" inalienable right to liberty?"

Mr. C. A. WHITE. I will come directly to that question—the doctrine of inalienability of rights.

As I was proceeding to argue, that is property which the local municipal law makes property. Everything that we havein this material universe is the gift of God to man for his sustenance, for his support, and for his comfort. This beautiful world and all its treasures weregiven to mankind in general. They were originally no more the property of one man than another. They were given for the common use of all. But the necessities of society required that there should be separate and distinct rights of individuals with reference to this world and its products; and the appropriation of them by individuals is recognized by the municipal customary law and by the fundamental law of the land. Gentlemen who claim that it is a violation of" the inalienable rights of man" for one man to hold property in the labor of another, might as well claim that it was a violation of" inalienable rights" for one man to appropriate to himself to the exclusion of others any part of this common gift of God to man, bestowed as a common heritage. This is the result of the doctrine. It is a leveling principle; it is agrarian in its character, and once entered upon there is no telling when -to stop.

The right to service in slaves, then, is recognized as property. That right of property cannot be taken away from any person except by dueprocessof law." "Due process of law as I before remarked, imports day in court and trial by jury. The only power, then, that can reach this question is the omnipotent sovereignty of the State, which rises above and overshadows, controls and molds, every other power and every other right and interest. Why, sir, the right to possess and enjoy property is essential to the very existence of man. We could not live without it. It is guarantied in the Constitution. Maryland and Missouri have abolished slavery. How did they do it? They did it by the exercise of the sovereignty of the State, and consistently with this provision of the Constitution, guarantying the right of individuals in property. They did it by conventions representing the sovereignty of the State. They did it consistently with the provisions of the Constitution, because the Constitution itself recognizes the sovereignty of the States.

Sir, I am a believer to the fullest extent in that doctrine which has been denounced upon this floor as a damnable heresy—the absolute, unqualified sovereignty of the States. And I believe it is because these States are absolutely and exclusively sovereign that they may, in the exercise of their sovereignty delegated to conventions for the purpose, dispose of this institution of slavery, and that, too, consistently with this provision written down in the tenth amendmentof the Constitution of the United States.

Now, sir, what is sovereignty? It is defined by our law writers to be the supreme power in the land. There can be but one supreme power; supreme is superlative; there can be none greater. There cannot be more than one supreme power over the same subject matter at oneandthesame time. If the Congress of the United States is supreme and sovereign the' States cannot be supreme and sovereign. If the States are supreme m power the Congress of the United States cannot be. It is an absolute absurdity and monstrosity to allege the contrary. Why, sir, we should then be in a worse condition than that child who was claimed by two mothers; we should be torn to pieces by these two omnipotent powers. Sovereignty is a thing that inheres in a State, it cannot be parted with itcannot beahenated. The States could not dispose of their sovereignty.

Now, what is the sovereign power in a State? Is it this beautiful statuary we see around us here? Is it these marble halls? Is it these ornamented columns? the exquisite tapestry we see around us? Is it the Congress of the United States with the President and the Supreme Court? Is that the sovereignty of the nation—the sovereignty of the State? No, sir; the people are the State. The people are the sovereigns. The people never parted with their sovereignty. For the sake of convenience and from the necessities of the case, millions of people scattered and dispersed over a vast extent of territory must act through agencies and through instrumentalities in making their sovereignty felt and demonstrating it in the administration of government.

We are, sir, here to day nothing more nor less than the agencies appointed and designated through the proper forms established by the sovereign power in the State to execute their will in the administration of the Government, according to the limitations of the powers which they themselves have imposed upon us. Was it the United States who sent us here as a consolidated mass? We are elected here by the people of the States. The Constitution provides that we shall be. It provides for the apportionment of representation among the States, and that States shall elect members of Congress, and that the State Legislatures shall elect Senators, and that each State acting independently, freely, voluntarily, by its own volition, shall select electors of President and Vice President, and certify the result here. It provides that the President, by and with the advice and consent of the Senate, shall appoint the judiciary. Thus every officer, every man who represents either of the separate and distinct coordinate Departments of the Government, derives his power mediately or immediately through the people of the States by their free, voluntary action in the exercise of the power of sovereignty.

What is the Constitution of the United States? It is nothingmore nor less than the prescribed form adopted by theseparateand distinct sovereignties through and by which these agencies shall be appointed, and placing limitations to the powers which they shall exercise. And that is all there is of u, delegating the powers that they shall exercise, and limiting the powers to the States. That is the whole scope of the Constitution.

What are the constitutions of the States? They are not the delegations of power, because the State is sovereign, and the constitutions of the States are limitations of power upon the Legislatures, State agencies appointed for the purpose of administering the regular objects of government. One is a delegation and the other alimitaiionof powers, and we of the Federal Government can only exercise such powers as are granted and the State government cannot exercise any powers that are prohibited, but it may exercise all that are not prohibited.

Why sir you might as well attempt to make me believe that a man can be the subject of two omnipotent Gods, as be the subject of two sovereignties.

Mr. KELLEY. Will the gentleman permit me to ask him a question?

Mr. C. A. WHITE. Certainly, sir.

Mr. KELLEY. Does not the Constitution of the United States provide that that Constitution and the laws made in pursuance thereof and the treaties made under the authority of the United States shall be the supreme law of the land, anything in the constitution or the laws of any State to the contrary notwithstanding?

Mr. C. A. WHITE. Why certainly it does.

Mr. KELLEY. If it be supreme, what other, under your argument, can be supreme?

Mr. C. A. WHITE. It i^ supreme because these sovereign States, each onespeakingfor itself, has said it shall be supreme; anil it is because we are simply the agents and representatives of these supreme and sovereign powers that it is supreme acting within the scope of the powers they have delegated to us.

No, sir; I claim that the States have not, by aify provision in the Constitution of the United States, expressed or implied, conferred upon the Congress of the United States jurisdiction over this matter, that they have never parted with or alienated their sovereignty or any part of it, and indeed they could not part with or alienate it.

But it is claimed that the fifth article of the Constitution delegates this power, and gives the power to amend overevery subject, and that it is limited only by the discretion of Congress and of the people. do Now, not believe sir, this, that to there my is mind, aState is an in absurdity. this Union —certainly not one of the original thirteen States— that would have adopted this Constitution .with any such understanding. Why, sir, if that proposition were true, what might not three fourths of the States do? They might impose all the burdens of taxation upon one quarter of the States. I do not believe that any such power as this belongs to the United States, or to three fourths of the States, or can b6 enforced in the shape of a constitutional amendment.

Now, sir, what is this proposition, and who are most to be affected by it? Why, the eleven States of this Union that now have no voice upon this floor have millions of dollars of property staked upon this issue, and which you propose simply by force of this amendment to wrestfrom their possession at once without any compensation without any process of law, and in violation of all those great fundamental principles of right, justice, and law, which obtain among civilized and Christian nations. But I am here told that these people are absentoftheirown wrong. The fact that they are not here gives us no additional pow< r, and confers upon us, as a political body, no additional rights. It is as a question of power and right that I discuss this question. That they are not here does notaffect the question of right. Those States are the real parties interested in this matter, except, perhaps, the State of Kentucky. And it is proposed to affect these material rights of these parties without their consent here, and without their consent by means of a ratification of this provision. Now, sir, it is very clear to my mind that this cannot be done.

Mr. Speaker, the discussion upon this subject has been chiefly upon the abstract question of slavery itself. Now, sir, I am not here the advocate of slavery or the apologist of slavery, and I have no interest in the institution, except so far as I am interested in it in common with every other citizen of my State. But, pass this constitutional amendment, and will it affect the status of individuals within the States designed to be affected by it? Will that make a single man free? If slavery goes down, if go down it must, it will be under the sturdy and stunning blows dealt upon it by your armies; it will be by the application of force to that institution. It will be by driving the rebels to that state of extremity that they will be compelled to crowd the list of their armies with their slaves. I believe that if we drive that people to that extremity and force them to enlist their three million slaves into their armies, with the promise of freedom for their service, that annihilation of slavery by these means will sound the death knell of the Union forever.

I do not believe with some gentlemen upon the other side of the House that this war is an instrument in the hands ofGod for the purpose of working out His designs with reference to this institution of slavery. I do not believe that God writes His decrees in the blood of brother shed by brother. I do not believe that this war is of God. I believe further that if this institution is a heinous sin against God, and an offense against th@ laws of humanity and civilization, as gentlemen claim it to be, that those laws ordained of God from the foundation of time for the government of the moral and material universe, will finallywork out the eradication of this institution peaceably, quietly, without any disturbance of the elements of society.

1 believe that these are the instrumentalities through and by which the institution would have finally been disposed of. The heated, unwise, angry discussions for the last thirty years on this question in Congress and out of Congress have done much to strengthen the institution of slavery. Each side has gone to extremes, the one just as far as the other. If we had kept open every avenue of approach to the hearts, consciences and affections of the people of the South; if we had quietly and peacefully, as Christians, in the spirit of our holy religion, talked over this matter, compared our views and sentiments, thrown open our pulpits to the ministers of the South as to the ministers of the North, and they to us, the work of overthrowing slavery would have been advanced far more than it now is; Maryland would have been free long before this; Kentucky would have been free; Delaware would have been free; Virginia would have been free; and the same influences thatoperated upon those States would hover in the tier of States lying below until finally the institution would have been wiped out without the effusion of a single drop of blood. Sir, it is to the exercise of these influences and to the arbitrament of the laws of God, governing the moral and material universe, that i would leave the institution of slavery. I would not give the life of the least of our soldiers in the field for the freedom of a hundred negroes; 1 am for committing the arbitrament of this institution to the determination and solution of those laws. Sir, what will be the consequences flowing from this provision if it can be enforced and carried out? It is not so much a provision to free the slaves as it is a provision to obstruct and prevent the return of the seceded States to the Union. 1 will not say that it is intended as an obstruction to prevent the restoration of the Union, but I will say that that will be the only effect of this constitutional amendment if you adopt it. You have already God knows, thrown obstructions enough in the way of the return of those States. Your schemesof confiscation and of emancipation and of proscription have retarded restoration; and now, by your scheme of constitutional amendment, you will render the restoration of the A merican Union upon the basis of the fathers an absolute impossibility, and render the restoration of a permanent and lasting peace, founded in the affections, in the consent, in the good will which every citizen owes and feels toward his Government an impossibility for ages to come.

1 have therefore constantly opposed all these schemes, because I have desired the restoration of the Union of these States, and because I have, in the exercise of the best judgment I could bring to bear, believed that all these measures could only have the effect of obstructing the passage of those States back into the Union. This war having been commenced ought never to have been prosecuted beyond that point at which the people against whom it is waged would have been willing to come back into the Union upon terms of perfect equality, terms that would secure their rights and us our rights, and perpetuate their liberties and our liberties; and, sir, the war is carried on against God and against humanity and civilization when it is prosecuted beyond, that point. We have no right to impose new conditions of union upon the people of the South, only so far as the dumb eloquence of numbers and power gives ua the right.

But, sir, let me now look at the humanity of this measure. What will be the effect of turning loose in our midst here more than three million men without property, at a time of great political commotion, when all the foundations of society are broken up, and while we are convulsed by a terrible revolution that is rocking the land from one end to the other? What will be the effect of turning loose this mass of people? Where will they go? What do you propose to do with them? Do you propose to enfranchise them, and make them" before the law," as the gentleman from Pennsylvania [Mr. Stevens] says, the equals of the white man; give them the right of suffrage; the right to hold office; the right to sit upon juries? Do you intend, in other words, to make this a mongrel Government, instead of a white man s Government? Do you intend to degrade the United States of America to the low condition of the provinces of Central America? Is it for that that we are wasting our blood and our treasure? Have we no higher aim or purpose than this in this great struggle in which we are engaged?

That, as I said before, will be the effect of throwing this people on their own resources. They cannot remain South. If you liberate the negro by the bayonet, the tenure by which he will hold his* liberty will be only that by which you have given it to him; he will be free just as long as the soldier sets his bayonet between the slave and the master, and no longer. The exodus of the negro race from all these States is absolutely necessary if it would be free. Where can the negro go? Certainly not to the cold regions of New England. Its types of industry, manufactures, are but illy adapted to the nature and capacity of that race. The Mississippi valley where we are engaged in the simpler pursuits of agriculture is destined to be the home of that people. There we have prejudices and those prejudices are things which are of ourselves a part. We cannot eradicate them if we would. Force the emancipated negroes upon us, make them our equals before the law, place in their possession the balance of power in this country, let them control the elections and dictate who shall manage the Government of the country and what will be the result? It is easily understood. Civil commotion and internal strife will follow, however much we may regret it.

The only way, then, to a restoration of a permanent and lasting peace, a peace that will give strength and stability to theGovcrnment, and win to it the hearts and consciences of the American people, is to find some basis on which all can stand, which will secure the rights of all, and perpetuate the liberties of all.