January 12, 1865 (2)

Mr. WOODBRIDGE. Mr. Speaker, I can well understand and fully appreciate the argument which my friend from Ohio [Mr. Pendleton] advanced on the floor of this House yesterday, contending that there was no power in Congress to pass this resolution. Had that power existed, in the estimation of my friend, I have no doubt, from what I know of him and from the tenor of his remarks, that he would have given the res dution his heai ty support. I am I confess, somewhat surprised to day that my other friend from Ohio [Mi. Cox] has taken the opposite ground, and that while lie admits that there is the power in Congress to pass this resolution, he denies that it is expedient to do so. I regret to find, sir, that a man who has always lived on northern soil, a man who ought to, and who perhaps does, love the Union, the whole Union, and nothing but tlie Union, as I do, should be unwilling to have Congress pass a resolution which, if adopted by the requisite majority, would blot out from the face of this Government the only relic of barbarism which impairs its fairness and beauty.

Sir, in discussing the question, I do not deem it becoming or useful to descend to the acrimony of party spirit. The power of Congress to pass this resolution depends upon the construction given to the Constitution itself. The policy of passing the resolution just now, in the present condition of the country, is one as to which gentlemen may entertain differences of opinion. 1 shall devote myselffirst, for a few moments, to adiscussion of the question of the power of Congress to pass the resolution.

Our Government when first established was an experiment. It was breaking away from established forms and theories, and launching out upon an untried if not an unknown sea, with no chart of the reefs and shoals which might be encountered, and with nothing but the light of reason to mark out its course. It is true that republics (so called) had arisen, grown in resplendent effulgence and power, and gone out in premature decay.

Greece, undera free Government, had shotlike a biilliantmeteor across the sky, illuminating the whole heavens, astonishing the world with her power and culture, and disappeared. Rome, under a similar system, had been the mistress of the world, and m eloquence, poetry, and all art excited the admiration of the ages, and left only a name in history. It was left for our fathers to determine the question of the power of the people to govern themselves. Driven from the old hearthstone, and believing that there could be a Church without a bishop, and a State without a king, they sought to establish a form of governmentadaptcd to their condition and in accordance with their principles. At first they established little democracies governed by the people, and having no power or adhesion independent of the popular will; but as they increased in population and area and independent organisms, it became necessary for the mutual safety to form themselves into some sort of a general Government; and the Articles of Confederation was the result of their delibertions.

At that day nothing so shocked the judgment and sensibilities of our fathers as the centralization of power in Government. They seemed to have deemed that the cause of all their former woes.

In 1778 we find that the thirteen States entered into a league of friendship or federation with each other for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to or attacks made upon them orany of them on account of religion, sovereignty, trade, or any other pretense whatever. In other words, it was a treaty between the thirteen independent and sovereign States for mutual protection

In order to avail themselves of the benefit of such treaty or league of friendship, it became necessary, for the convenient management of the general interest, that a body should be constituted called a Congress of the United States, wherein each sovereign State should be represented and measures be adopted for mutual benefit and protection. In this Confederation each State retained its freedom, sovereignty, and independence, except so far as powers might be delegated to the United States. In fact the States were sovereign, and might, as many supposed, at any time withdraw from the Confederation and annul the league of friendship or treaty of alliance.

Iii a short time it became apparent that in the Articles of Confederation there was no thorough bond of union. There was nothing to cement the people and the Government and bind the people to the Government. Hence we find that in 1787 not the States but the people of the United States formed a Constitution, and set forth its purpose as follows:

Wc the people of the United States, in order to forma more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our po nciity do ordain and establish this Constitution for the United States of America."

In the formation of that Constitution two great parties were represented and more or less at issue. One party contended for the sovereignty of the States, independent, except in certain yielded rights, of the General Government. The other that sovereignty must exist in the General Government, that the power of government must rest in the Government itself, but that certain rights and powers might be reserved to the States, to be exercised in accordance with and under the Constitution.

The Constitution as we have it to day the charter of our liberties, which I respect as much as my friend from Ohio, and would violate no sooner than he, was after much discussion and many compromises of opinion adopted. But in it, to satisfy all sides, the power of amendment was provided for, and was really limited, so far as its restrictions now go, to one particular, and that was that no State shall be deprived of its senatorial representation equal to any other State, except by its own consent. As I have before intimated, our Government when the Constitution was formed was anexperiment. It was foreseen that experience alone could determine whether too great power was vested in the General Government, or too many rights reserved to the States. It was also foreseen that in either event the power would not be yielded with a willing hand. Man loves power, and as Governments are but the nggiegation of men, they too love and hold it if possible. Hence two modes whereby Congress might call upon the people to amend the Constitution were devised. In case it should be found by experience that too many powers or dangerous prerogatives were reserved to the States, then Congress, whenever two thirds of both Houses should deem it necessary, should propose amendments to the Constitution.

And on the other hand, whenever experience might show that too great or dangerous powers had been granted to the General Government, then, on the application of the Legislatures of two thirds of the several States, Congress should call a convention for proposing amendments. Herein we see the honesty and wisdom of the framerS of our Constitution making so judicious and perfect an adjustment that neither the General Government can usurp powers to itself dangerous to the liberties of the people nor the States retain powers to themselves which endanger the safety of the Republic. But, sir, it was said by the gentleman from Ohio [Mr. Pendleton] yesterday that there are certain matters where three fourths of the Legislatures of the several States may amend the Constitution and in others not, and when the gentleman from Kentucky [Mr. Yeaman] asked my friend from Ohio to point out the exceptional cases he declined or neglected to answer.

Was it generous in my honorable friend, [Mr. Pendleton,] the exponent and leader of a great party, to preserve such dignified reticence? Could he not have told us, who are earnestly seeking after light upon this subject, wherein the Constitution, (outside of its own exception,) cannot be amended?

Sir, his love of truth, and his sagacity as a lawyer, overcame his zeal, and hence he made no reply. Sir ladmire thegentleman s ability and commend him for his discretion. Sir, there is but one limit in the instrument, and that is in regard to the senatoiial representation, and neither you nor I, in my judgment, can say so far shall this power go, and no further, unless we pronounce the Constitution itself unconstitutional.

The several States became members of the Union under the Constitution with a full knowledge of its provisions, and it is too late to plead either infancy or imbecility.

But, sir, it is said that by the amendment we are interfering with vested rights; that slaves were obtained under the guarantee of the Constitution; that no amend men can be proposed which changes the status of the slave. I am not going to discuss the question as to the right to hold property in slaves. Under my interpretation of the Constitution negro slavery was protected where itexisted by force of law, so long as the States in which it existed and the people thereof rendered fealty and obedience to the Government. If you treat slaves as property, then the condition of protection was the allegiance of the owner. The right of protection and the duty of allegiance are reciprocal. Independent of all Government, a man is entitled to what he possesses until dispossessed by force,' and when he connects himself with organized Government he, is bound to recognize that Government and live under its laws, in order to entitle himself or his property to its protecting power. But, sir, it is not necessary to discuss the right of property in man. Coming from the Gi een Mountain State, where the mountain brooks leap from rock to rock, in the full play of freedom; where the winds of heaven sing the song of freedom among the trees upon her mountain tops and where a good old judge, fifty years ago, said to a claimant who claimed and presented a bill of sale for a slave," Show me a bill of sale from God Almighty and your title will be recognized," it is not necessary for me to say that in my judgment there can be no property in man.

But, sir, it is said that slaves are property, and for the sake of the argument I will admit it; and it is further said that property in them being a vested right, cannot be divested, as it would be, by an amendment to the Constitution. Why, sir, all rights reserved to the States are vested rights, all rights possessed by the General Government are vested rights. Suppose the States had reserved to themselves the right to coin money and regulate the value thereof, that would be a vested right; and yet will any gentleman say that if from experience it had been found to operate injuriously to the best interests of the nation, the Constitution could not be so amended as to divest the States of the right to coin money, and place the power m the hands of Congress?

Precisely so with the question of slavery. It was a vexed and troublesome question when the Constitution was formed. It was then considered to be a local question, and that it would melt away before the advance of a Christian civilization as the dew upon the meadows before the morning sun. But experience has shown otherwise. It grew to become a monster. It cried" Give, give," and never said" Enough." "Room for the leper," was the cry, and the free North stood back and said" Pass on," until from a few thousand it became almost one sixth of the nation.

Is such a reserved right (as shown from experience) consistent with a full, free, and perfect development of a republican form of government? Is there no antagonism between free institutions and the aristocratic and cursed system of slavery? Now, sir, if the Congress of the United States finds that such antagonism does exist; that slavery strikes a blow at the heart of the national life; that it endangers free institutions and a republican form of government; that it is incompatible with the theory of our Government; that both cannot survive, can it be said that there is no power to propose an amendment to the Constitution which shall remove the danger? Sir, I think not. No gentleman upon the floor of the House has defended the system save one, the gentleman from New York, [Mr. Fernando Wood;] and when he said that slavery was the normal and best condition for the negro race, a negro in the gallery exclaimed," I don t think massa has read his Bible much, or he would not have said that —a just condemnation of a sentiment which outrages ;'the moral sense of the civilized world. 1 commend the gentleman to the blessed Book which the poor black man thought he had not read. In it he will find thatGod made man—not the white inaii, not the black man, but man in His own image, and breathed into his nostrils His own breath of life. And for his encouragement let me say to him that he will find there promises of infinite mercy, and that by giving even a poor black disciple a cup of water in the name of his divine Master, he shall not lose his reward. Out of the mouth of babes and sucklings comcth wisdom, and I hope the gentleman will notscotf at the lesson taught him by the poor black man.

Sir, it is conceded, I think, that the States wluiein slavery exists, having exclusive jurisdiction over the subject matter can pass an ordinance of emancipation freeing the slaves without remunerating the master. If this is so, then what becomes of the argument as to vested rights in property? The ground upon which a State may thus act is simply this: the existence of slavery and property in slaves is injurious and prejudicial to the safety of the State; hence the State lias a right to Say to its people, you shall no longer own slaves as property, it is analogous to a case where the State finds within its borders an article of property which is injurious to the public health or public morals. It is clearly the right of the State to declare that such an article shall not be held as property. Now, sir, if States, having the exclusive control, persist in holding property which is in the judgment of Congress ruinous to the nation and will not yield it up, then Congress may through the people, by an amendment to the Constitution, take away these reserved rights, and say such property shall no longer exist as property.

Sir, I was surprised on yesterday at the remark of my learned friend from Ohio [Mr. Pendleton] on the other side. If 1 understood him, in the warmth of his zeal, his energy, and his anxiety in this matter, he said to members upon this side of the House, as a matter eitherof threat or warning, 41 Look to it well, you yourselves, gentlemen, that you do not do that which may strike at the bonds of this our great and glorious Union." What did the gentleman mean by a remark of that kind? Does he not know that his great teacher, the father of secession and nullification, himself Said that the individuality of South Carolina was merged in the Legislatures of three fourths of the States of this Union? Would he go beyond his great teacher?

And what does the gentleman mean when he says "fractain nnofracta in omnibus?" Does he mean that this Government under our Constitution is a compact between the States themselves? Does he not see peculiar significance to that sentence which says," We the people of the United States," in convention assembled," do ordain and establish this" the Constitution of our country? Will the gentleman follow out and take the logical consequences of his statement? If so, he will be obliged to concede that any State or the people thereof may by ordinance take themselves out of the Union. I am sure the gentleman does not believe that.

Now, I would devote a few moments to the policy of this measure. Is it policy to pass this resolution at this time? The indications of Providence are that it is. The recent elections indicate what the will of the people is, and that is to do away with this greatevil, the most accursed thing that has existed in this Government since the formation of our Constitution-, which has been a Mot, in our own estimation and in the estimation of the people of the earth, upon our fair escutchIt is said that slavery was not the cause of the war. That it was the immediate cause of the war 1 am not prepared to say; but it led to a state of things which necessarily, in the order of Piovi* dencc, must produce a war. The North, stimulated by free labor, had steadily and wonderfu iy progressed in population, wealth and power. The little tree which our fathers planted upon Plymouth rock had grown up and spread from the Atlantic to the Pacific, until every man might come and repose beneath its shade. The little brook that came out of the fissures of Plymouth rock had crossed over this continent, until every man could come and drink of waters dedicated to freedom. Why, sir, the North has progressed with the strides of a giant. Young States hafd a .vakened like giants refreshed by new wine; and they had become an influence and a power, physical and moral, that the South could no longer resist. They could not resist the free States because they had no right to say that the majority should not govern. The war has cost us millions and hundreds of millions of money; and now at every New England fireside, at every hearthstone throughout the country, East and West, tears are shed for the dear ones who are lost, and prayers ascend to Almighty God to shield those who are still left to fight the battles of the country. The blood of the nation and the tears of the widow call for the passage of this resolution.

And I tell yoj, sir, that this rebellion is, by reason of omnipotent power, coming to an end that will be favorable to the cause of liberty here and elsewhere. Have you not read, sir, a recent book written by Victor Hugo, one of the best scholars and most eloquent writers of France? You have doubtless seen in it a description of the battle of Waterloo. What does the author say? Was Waterloo a victory? No.- Was it won or lost because of Napoleon, because of Blucher, because of Wellington? No; it was lost because of God. The history of Napoleon was not written in the nineteenth century. The brains of the universe had culminated in the head of one man, and all nature moaned with the plethora. Hence, Waterloo was riot a victory won by armies alone; it was a victory by God. So with this rebellion. It is not simply a rebellion; it is not simply a war. It will end in the triumph of the Union; it will end in the honor of the glorious old flag, so that it shall float again over every inch of the soil of the old Union; but not alone because of Lincoln, not because of Farragut, not because of Sherman, not because of Grant, but because of God. Slavery has been tried at the bar of Omnipotence and been found wanting. Its history is not written in the history of the nineteenth century. When we come to the great and final victory, it will not be a victory alone, sir, but it will be a change of front of the universe. Sir, it will open to the oppressed people of Europe renewed hope of freedom for themselves and their children.

The adoption of this amendment will be beneficial to the South. Sir, 1 know that this war will end; and I entreat gentlemen upon the other side of the House to act with us in putting down, by constitutional means, the cause of this great and direful calamity. The war will end victoriously for us; but I want this resolution to pass, and then, when it does end, the beautiful statue of the goddess of Liberty which now crowns the majestic dome above our heads, may look north and south, east and west, upon a free nation, untarnished by aught inconsistent with freedom—redeemed, regenerated, and disenthralled by the genius of universal emancipation.

Sir, I hope the resolution will pass.

Mr THAYER Mr. Speaker, the discussion of the measure now before the House has been of a very extended and exhaustive character, and the arguments which have been made against it are very numerous and very varied. If 1 were to attempt to sum them up 1 should occupy a much longer time than at this stage of the debate I intend to consume. But they may, perhaps, in some general way, be grouped as follows:

There is, in the first place, the argument of the want of constitutional power, which is a proposition of a very important character.

There is then the argument de injuriay made by the honorable gentleman from Kentucky [Mr. Clay —the argument which bases itself upon the alleged injustice to private rights of the measure now before the House.

There is, in the third place, the argument founded i oon the alleged inexpediency of the measure.

There is, in the fourth place, what I might perhaps characterize as the chronological argument —the argument that, although the power is possessed, and although it may not be inexpedient in itself, this is not the proper time for the passage of such an amendment, or the discussion of the question which it involves argument which seek.-) to delay to some Indefinite and unappointed time the great issue with which Providence now confronts the country.

There is again, sir, the want of brnins argument made by the gentleman from Kentucky, [Mr. Mallory.] The honorablegentleman will of course not understand measapplyingthose words to the argument which he made, and to which I listened with much pleasure. I mean the argument that the men who made this Constitution were so great that none who came after them are fit to lay hands upon it or to touch it; that no alterations in the circumstances of man, that no revolutions of Government, that no change in human circumstances, can justify the men of the present generation in attempting to improve in any the slightest particular the work of the great statesmen who framed the Constitution of the United States.

Mr. MALLORY. If the gentleman will allow

Mr. THAYER. Certainly, air.

Mr, MALLORY. The gentleman misapprehended me, I think. I remember at the last session of Congress having asserted that I did not believe that we of the present Congress, nor the people of this country at the present time and under the circumstances, were properly competent to take into review the work of the great masters who framed the Constitution. I do not assert that in all time no changes should be made in that instrument.

Mr. THAYER.■.! do not intend to misrepresent the gentleman from Kentucky.

Mr. MALLORY. I have had no such idea.

Mr. THAYER. The House will recollect the interrogatory which the gentleman propounded to me in his argument at the last session of Congress, in which he asked me whether I felt the conscious power to amend this instrument; whether 1 thought we were fit to amend it. It is that to which I referred. It is the argument against the ability or the competency of the men of the present generation to add anything to the work of the generation which has passed away. I do not intend to animadvert at length upon that argument. I only advert to it as one of the arguments which have been made.

There is, in the last place, what I may style, without intending any personal disrespect to the gentleman from New York, [Mr. Fernando Wood,] who made it, the infernal argument. I suppose that he would call it the ethnological argument, but with the sentiments which 1 hold, I cannot dignify is with that high sounding description. I call it the infernal argument. Itwas the argument which was boldly advanced by that gentleman and which he attempted to sustain here, that slavery was the best, the natural condition of the black race, the condition to which it was decreed by Heaven, and that, therefore, we should not struggle against the natural and just condition to which Heaven in its wise purposes had consigned them; and the argument by which that gentleman attempted to sustain his position, namely, that the best way to civilizc the savage is to enslave him and his children and his children s children to the remotest generation. For that purpose he had read at the Clerk s desk, as the House will remember, a passage from a book of African travel illustrative of the savage character of the African in his wild state.

Sir, I shall not undertake in the brief time in which I intend to occupy the attention of the House to comment upon these various arguments. Time would fail me to do so. I desire to call the attention of the House more particularly to a branch of the first argument to which I have referred in this brief review of the debate on the other side of the House. I desire to say a few words in regard to the argument made yesterday by the gentleman from Ohio [Mr. Pendleton] concerning the lack of power to pass the resolution which is now before the House. The words of the fifth article of the Constitution on this subject are very express and clear. It confers upon Congress the right to propose amendments to be adopted by the States or the people of the several States. It confers that power in language too plain to be misunderstood. It is a direct grant of power. But the article that contains that grant excepts from that power three particular subjects; and in relation to those subjects it denies the power. The grant of power contains three exceptions: first, no amendment shall be adopted prohibiting the emigration or importation of slaves prior to the year 1808; second, no direct tax shall be laid except in proportion to the enumeration of the census; and thii d, no State shall be deprived of its equal suffrage in the Senate. Here, sir, you have the whole article of the Constitution. You have in the first place an explicit grant of power, and you have in the second place the specified subjects which are excepted from that grant of power.

Now, sir, I have no doubt the gentleman from Ohio is a very good lawyer, and is perfectly familiar with the maxim, expressio unhis est exclusio allcfius. I am sure that no lawyer understands better the operation of that familiar maxim than the gentleman from Ohio. Will the gentleman therefore toil me, with this maxim before his eyes, what the framers of the Constitution meant by putting in it this grant of power, and coupling with it three exceptions from that grant? 1 ask him if they did not mean by that general grant to give it without limitation except in so far as it is limited by the specified exceptions? Will the gentleman tell me why they enumerated the three subjects which were excepted from the operations of this power? Sir, the position upon the part of those of us who contend for the undoubted existence of the power to adopt this resolution rests upon this immovable base, that the powers which are granted by the Constitution of the United States are plenary, and that they have no limits except in the restrictions which the Constitution itself contains. I deny the premise upon which the whole argument of the gentleman from Ohio is founded, to wj t that the grant of this power of amendment isalimited power. I contend on the contrary, that it is an unlimited power in common with all otherpowers which are expressly granted in the Constitution, except in so far as you find a limitation of them in the Constitution itself.

I must therefore be allowed to say that I was somewhat surprised when I heard the distinguished gentleman from Massachusetts [Mr. Boutwell] subscribe in a kind of qualified manner to the position which was assumed by the gentleman from Ohio, when he said that neither did he believe that it was an unlimited power, but that its limitations were found in the preamble of the Constitution. To say that the limitations are found in the preamble is to say, perhaps, that there are no limitations, which would bring the distinguished gentleman from Massachusetts to the point I occupy myself; because the preamble is so extensive, it embraces such a great and endless variety of subjects, and is so comprehensive in its scope, that if you construe the Constitution by the preamble you may bring almost anything within (lie scope of the powers granted.

Mr. DAWES. I would ask the gentleman if the preamble itself was not submitted to the States like all other parts of theConstitution; and if the framers of the Constitution did not also say, in prescribing that three fourths of the States might amend the Constitution, that to them should be addressed the question what would contribute to a more perfect union, what would establish justice, and secure public tranquillity? And therefore, in that way, is not the power perfectly unlimited, the three fourths of the States being the law makers and the law expounders I ask the gentleman if it is not just as competent for that tribunal to alter the preamble as it is to alter any other part of the instrument? And further whether it is not competent for that tribunal, there being no appeal from it, to say that anything, save the limitations prescribed by the instrument itself, does or does not contribute to the ends set forth in the preamble, even to the extent of permitting a man of foreign birth to be chosen President of the United States? May not that tribunal of three fourths of the States say that that contributes in their opinion to the very purposes of the preamble; and therefore that the King of Dahomey might be just as eligible after that to the Presidency as any other living man.

Mr. THAYER. 1 do not think I disagree with the views of the gentleman from Massachusetts, [Mr. Dawes.] The preamble of the Constitution is undoubtedly a part of the Constitution, and it is that part which indicates the general purpose and intention of the framers. What 1 meant to express by what I said was simply this, that the objects named in the preamble are of such an extensive character that practically it operates as no restriction or limitation upon any power conferred by the Constitution. When, for instance, the preamble says that one of the objects is to promote the general welfare, it must be obvious to all that within the limits of such general language you may bring almost any proposition which will command the general approbation. And you cannot deduce from the preamble any fixed rule for the construction of the Constitution, because men s ideas will differ as to what is meant by these general phrases, and there is hardly anything which may not be brought within their operation.

I may add to what I have said upon that subject, that if anything can be shown clearly not to be within the purview of those general declarations in the preamble, that of course being without the intention of the framers, it would be in contravenfion of the Constitution.

Mr. EOLTWELL. Possibly I did not make myself fully understood yesterday in reference to the preamble. H is, as it seems to me, a declaration of moral and political truths on which the Constitution is based, rather than a part of the Constitution itself. It does not contain a specification of duties; it does not contain an enumeration of powers; and it is not a declaration of particular rights, either of the General Government, or of States, orof individuals. What I meanttosay, if I can make myself understood, was this, that if you proceed, under the Constitution, to amend it, and intend to preserve the form of government which was provided for in the Constitution, you mustkeep yourselves within thexleclarations made in the preamble as to the purposes for which the Constitution was formed. As to what measures are within those purposes there must always be a judgment, but 1 think mankind would agree that if we were to amend the preamble so as to declare that the object of the union was the perpetuation of injustice, we could not say, when we had so amended it, that it was the same form of government which our fathers set up. There is evidently this distinction: an amendment to the Constitution, under the Constitution, by which wc perpetuate the same form of government, and the overthrow of the Constitution, which is a revolutionary proceeding, and which unquestionably belongs in some form or other to the people.

I should say, as a matter of opinion, that if a proposition were made to amend the Constitution so as to establish slavery everywhere, that is so manifestly contrary to the principles of justice that if you adopted it it would bo an overthrow of this form of government, and you could not appeal morally to the Constitution and say to the one fourth of the States dissenting from that proposition," You are morally bound by this." You might legally enforce, as a matter of power, the authority of the Government derived from the people of the three fourths of the States over the dissenting one fourth. But when, in the judgment of all mankind, you depart from the objects for which the Constitution was framed you will have set up a new form of government, and you must seek in the people themselves, in their judgment, for the moral basis on which the new form of government is to rest. The moral basis on which this Government rests is set forth m the preamble to the Constitution, and upon that you must rely, according to the judgment of men, for the moral support which any amendment you may make is to receive from the people.

Mr, DAWES. With the consent of the gentleman from Pennsylvania, I will say that my difficulty about my colleague s argument is this, that the very considerations which he has now urged, the framers of the Constitution referred to precisely this same tribunal to which they referred proposed amendments; they refer a proposed amendment to the Constitution to that tribunal, and they refer along with it the question whether it is a departure from the fundamental principles of the Government or not; and from the decision of that tribunal there is no appeal. Going along with that decision there is the right of revolution, which is a right existing in every man s breast; he takes the responsibility of judging for himself whether there is any departure from the original fundamental basis of the Government, and if he succeeds in maintaining his judgment he is free, otherwise he is bound by the obligations of the Constitution. So it seems tome; and, therefore, as the gentleman from Pennsylvania has well said, practically my colleague s definition of the limitation which he puts upon the right of amendment comes right round m a circle to this, whether it be a departure or not, which question is referred to the same tribunal which is to pass upon the amendment itself.

It seems to me, therefore, that the Constitution makes a tribunal to which are to be referred all these questions—both the question of the character of the amendment and the question whether it is a departure from the fundamental principles of the Government or not. It is not acase where one tribunal makes the amendment and another tribunal passes upon the obligation of it. The Supreme Court of the United States passes upon the laws we make, and decides whether they are departures from the Constitution or not. This is a case as if the Supreme Court and the Legislature were one and the same body, making a law and expounding it and deciding whether it be a drpaituiv from the Constitution or not in one and the same breath. With tho exception of the limitations which the framers of the Constitution themselves chose to put upon the acts they have recited, they have erected a tribunal into whose keeping they have put the decision of all questions touching the nature, form, and character of the Governmentitself withoutappeal leaving toevery man and to every body of men the inalienable right of revolution, and leaving to every man the responsibility before God of deciding whether lie will exercise it or not, and maintain it if he can.

Mr. THAYER. Mr. Speaker lean subscribe most heartily to the sentiment which I have listened to from the gentleman from Massachusetts, [Mr. Dawes.] The point that I make is that every power granted by the Constitution is complete in itself; may be exerted to its utmost extent, and acknowledges no limitation except that which is written in the Constitution. Now, sir, that announcement of a principle contains nothing new. That is a principle with which the gentleman from Ohio [Mr. Pendleton] cannot possibly be unfamiliar, because it has been for years the doctrine, the solemnly adjudged doctrine, of the highestjudicial tribunal of this country in expounding the Constitution. It is the doctrine laid down by Chief Justice Marshall in Gibbons and Ogden. It is a doctrine which has never been departed from by that august tribunal from the day on which Marshall and his illustrious associates gave it utterance and authority in the Supreme Court of the United States, if it be said, as was said by the gentleman from Ohio and others, that that embraces an absurdity, that if the power is unlimited, anything, no matter how much opposed to the moral law, no matter hoftr subversive of civil government, may be tolerated under such a construction of the Constitution, I answer, not, sir, in my own language, but in the language of that illustrious judge to whom I have already referred. i( The wisdom and the discretion of Congress* their identity willi the people, and the influence which their constituents possess at elections, are in this as in many other instances, as that, for example, of declaring war, the sole restraints on which they [the people] have relied to secure them from its abuse- They are the re tiaints on which the people most often rely solely in all representative Governments."

When you ask me, therefore, whether, if the people of the United States were so to amend the Constitution as to enable them to enslave the white freemen of the North, that would be binding, I answer you by asking you what, in your opinion, would be the effect of a law legalizing the crime of murder, whether, in your opinion, you would be bound to obey such a law, whetheryou would be bound to obey any law that contravenes the moral law established by the Creator? Sir, there is no sound argument to be founded on the putting of such extreme cases. The people of the United States hold their liberties under theirown protection and in their own keeping. If the men they send to the halls of legislation abuse the trust reposed in them, if they enact immoral laws, unjust laws, laws that subvert the very foundations of human society, the remedy is with the people. The people would, in that event, clear these Halls of the men who made them, and would send here men who would enact laws in accordance with their welfare, with justice, with morality, and with free and equal government.

Sir, when the gentleman from Ohio puts an extreme case in order to overthrow the settled principles which I have stated, namely, that where ever you find a grant of power in the Constitution that grant is unlimited, except it be limited by the Constitution itself, he relies (he will allow me to say, with the utmost respect for him) on what can be shown to be a very shallow fallacy. In the first place, there is no danger of the Representatives of the people enacting such laws, and in the second place, if they were to enact such jaws they would be whipped from these Halls by the people whose liberties and whose rights they had outraged, and the people would send here men who would repeal such laws and punish those who made them.

Well, sir, we have then a new doctrine announced, and that is that when a power is granted and there is no limitation on that power, there is, notwithstanding, a limitation, and that limitation is to depend on the fluctuating opinions of the members of this House. The gentleman says that although there is plainly written in the Constitution the power to propose amendments, and although the authors of the Constitution enumerated three instances which they excepted from the exercise of that power, yet there is something still more excepted which is not embraced within the three items excepted; and he says that it is unconstitutional to propose to amend the Constitution in the present instance, because it would interfere with a domestic institution of the States. What kind of a reason, sir, is that to assign for an attempt to overthrow the deliberately established doctrine of the highest judicial tribunal in this country?

Mr. PRUYN. I would like to ask the gentleman a question, if he will allow me.

Mr. THAYER. Certainly.

Mr. PRUYN. I have not had the benefit of hearing all the remarks which the gentleman has made, and I do not understand his ground distinctly. Does the gentleman claim that the right to amend is unlimited?

Mr. THAYER. I claim, sir, that the right is unlimited except in three particulars, which are especially designated in the grant of the power to amend.

Mr. PRUYN. Is there any power to amend so as to establish a monarchy here?

Mr. THAYER. I have spent some time, I fear in vain, in commenting upon the precise objection now made by my friend from New York, [Mr. Pruyn,] which, however, I tun very happy to hear him state.

Mr. PRUYN. I beg pardon of the gentleman, I was not present when lie replied to that point.

Mr. THAYER, I will answer the gentleman very briefly, as I answered more at length just now. The protection and guard against any undue exercise of this power, as of all powers, is in ,the power of the people over their Representatives. And that, as was said by Chief Justice Marshall in the opinion to which i have referred, is a sufficient safeguard. Why, sir, we are but the instruments of the people. This House in reconstructed every other year by the votes of the people. And after all, the residue of the power, the great bulk of the power, is with the people, and inasmuch as the people elect their own Representatives, they can always protect themselves against any undue exercise of power by their agents.

But, sir, we are told that this resolution is unconstitutional; although the grant of the power to propose amendments, like the grant of other powers in the Constitution, is general and unlimited except in the particulars to which I have referred, we are told that this is unconstitutional because it interferes with the domestic institutions of the States. Well, sir, suppose it does; do you find in the Constitution any limitation declaring that the American people shall not amend their Constitution when it interferes with the domestic institutions of any portion of the people?

This question has been argued, I will take leave to say, more as if it were a question whether we here m the Halls of Congress should undertake to amend the Constitution, and to change the laws and customs of the people, than if it were a question, which in reality it is, whether we shall simply propose to the people an amendment in pursuance of our constitutional power—propose to whom? propose to the people to alter their Constitution, it is a question whether we shall give to the people an opportunity to pass upon what we consider an advisable amendment of the fundamental law, and to reject or adopt it as they may choose. We do not interfere with the domestic institutions of the States. If the" domestic institution" (to adopt a polite phrase for a great crime) should be interfered with by the adoption of this amendment it will be by the deliberate judgment and verdict of the American people. It will be destroyed, not by Congress, but by the votes of three fourths of the people. Some gentlemen seem to forget that we are acting here as the mere instruments of the people. Wc are merely setting the machinery in motion which will enable the people to say whether they desire this change, if three fourths of the people do not desire that change you will not have it, and if three fourths of the people do desire it, then I ask why in the name of common sense should any Democrat oppuse such a change? If three fourths of the people desire this change in their fundamental law should one fourth be allowed to prevent them from accomplishing their desire? This is a new and singular phase of Democratic principles. A strange Democracy that, which would build its creed upon such a foundation as this.*

The gentleman from Ohio, [Mr. Pendleton,] in order to sustain himself in this extraordinary position argued the constitutional question upon the basis that this Government is a confederation of States. He treated the whole subject as if the question were one in regard to the construction of a compact between States; as if some sovereign State was to be put in the position of losing its rights by being outvoted by other sovereign States. Sir, I am sorry to hear such a doctrine asserted at this time and in this place. That path, sir, let me tell the gentleman, leads into the bloody slough of secession. It is the fruitful parent of all the ills we now endure. It is this heresy, condemned by the greatest men who have lived in the annals of the American people, condemned by the Supreme Court of the United States, condemned again and again by that great sage, the light and glory of our judicial history, John Marshall; it is this doctrine, whose ghost was brought yesterday by the gentleman from Ohio from the bloody battle fields of our suffering country into this Hall, which has created all the woes and sufferings by which we are now surrounded; the doctrine that the Constitution is not a Constitution for the people, but a league between States. Sir, if that be true, then Jefferson Davis and his fellow traitors are right and we are wrong. If that be true, then there is not a rebel north of the Gulf of Mexico; because, if the theory of this Government is that which was maintained yesterday by the gentleman from Ohio, [Mr. Pendleton,] namely, that the American Union is but a league between sovereign States, then those sovereignties had a right to depart; we had no right to .gainsay their action; and the brave men who have poured out their blood in the sacred cause of American liberty and nationality have wasted it in a cause which, according to the gentleman from Ohio, has no foundation in justice or the Constitution.

Sir, 1 regret that the gentleman in sustaining liia view with regard to theunconstitutionality of the resolution now before the House should have been driven by the stress of his argument to reassert that old, and I had thought fast dying fallacy which has led our great and prosperous and glot ious country to its present condition of misery and suffering.

The gentleman made an eloquent profession of his attachment to the State of Ohio, to which I, arid I am sure the House listened with attention and with admiration, for it was not only eloquent and beautiful but it was stirring. But, sir, the pleasure with which I listened to the honorable gentleman was alloyed with profound regret that he had not found to mingle with it one word of piai se or love for the Union, and that lie had not embraced the Union in that eloquent tribute of affection which he paid to the State of Ohio. Sir, 1 reverence thegentleman 'saffection and allegiance to his native State; I entertain the highest respect toward him for cherishing those feelings. But, sir, I would have been glad to have seen his great talents directed to maintain not only the glory of his native State, butalso the sovereignty and perpetuity and glory of this great brotherhood of States, the glory of this great American nation now receiving Us baptism of blood and fire. I should have preferred, sir, in a great crisis like the present, to listen notto such partisan and sectional cries as" Long live Ohio or" Long live Massachusetts!" or'• Long live Pennsylvania!" but to that nobler, better shout which now bursts like the roar of the ocean from hundreds of thousands of brave men as they hurl themselves upon the common enemy of the American people," Long live the nation Long live the United States of America—one and inseparable!"

Mr. ROLLINS, of Missouri, obtained the floor.

Mr. ASHLEY. Will the gentleman yield to a motion to adjourn?

Mr. ROLLINS, of Missouri. Yes, sir.

Mr. WASIIBURNE, of Illinois. Wiil thegentleman fiomOhio [Mr. Ashley] please inform us when he proposes to bring this matter to a close?

Mr. ASHLEY. I will answer the gentleman to morrow 1 no v move that the House adjourn,

Mr. WASHBURNE, of Illinois. I demand tellers.

Tellers were ordered; and Mr. Wasiiburne, of Illinois, and Mr. Eldridge, were appointed.

The House divided; and the tellers reported— ayes 70, noes 11.

So the motion was agreed to; and the Houftft (at four o clock p. m.) adjourned.