February 26, 1869 (2)

Mr. STEWART. I move that the Senate proceed to the consideration of the report of the committee of conference on the constitutional amendment.

The motion was agreed to.■

Mr. RAMSEY. I should like to appeal to the Senator from Nevada to allow me to pass a small bill that I have been trying to bring before the Senate for a week past.

Mr. HENDRICKS. I want to pass three or four bills.

Mr. DRAKE. I want to pass one.

Mr. POMEROY. When this evening was set apart for pension bills I thought it was understood that I should have a part of the evening for business from the Committee on Public Lands.

The PRESIDENT pro tempore. The report of the committee of conference on the joint resolution (S. R. No. 8) proposing an amendment to the Constitution of the United States is before the Senate, and the Senator from Indiana [Mr. Hesdiuuks] is entitled to the floor.

Mr. POMEROY. If the Senator from Indiana will consent, I desire to submit a question to the Chair before he begins."

Mr. HENDRICKS. Certainly.

Mr. POMEROY. With the consent of the Senator from Indiana I desire to submit a question of order. I discussed to some extent this morning the question, but did not make any point of order, because I wanted to satisfy myself further that it was really a question of order. I thought in the morning' during this discussion that the point might be reached without making it a question of order, but the question of order I now submit is iu these words:

The conference committee appointed to confer and report upon the disagreeing votes of the two Houses upon the joint resolution of the Senate No. 8, have reported upon the agreeing votes as well as the disagreeing, in that they strike out the words' to hold office,’ which was not submitted to them.

The point of order which I make is that the committee to whom was referred the disagreeing votes have reported upon the agreeing votes, and they were words not essential to that portion of the amendment that the House receded from; in that they have made to the Senate a report upon what was not committed, and hence under the rules of the Senate it cannot be received. I do not care to argue the point.

Mr. NYE. I hope we shall not fool away an hour now on a question of order.

Mr. POMEROY. I do not care to argue the point.

The PRESIDENT pro tempore. It is not debatable.

Mr. POMEROY. It is a question of order that must be decided by the Chair without debate.

Mr. DRAKE. I would inquire of the honorable Senator from Kansas whether he intends to impale the rights of man upon a point of order?

The PRESIDENT protempore. There is no debate allowed on this subject. We are admonished by the rules that committees of conference are only to settle such matters as the two Houses of Congress have not agreed upon, but I do not think it is such a question of order that the court can direct a non suit on. [Laughter.] It appears to me to be so connected with the ease that it must be submitted to the judgment of the Senate, and the Chair could hardly rule out the report under such circumstances.

Mr. POMEROY. I do not care to appeal from the court in this matter, but I want (he pointof ordernoted in the proceedings because no case of this kind has gone unchallenged, and the Senate invariably, where the text of a bill has been interfered with by a conference report, has required it to be passed by a unanimous vote.

Mr. STEWART. I simply want it noted that the point of order is more false in fact than in theory.

Mr. CONNESS. I object to discussion.

The PRESIDENT pro tempore. If the Senator appeals from the decision of the Chair that is one thing. It is debatable then, but not without.

Mr. CONNESS. There is no appeal. ["Question!" "Question!"]

The PRESIDENT pro tempore. The Senator from Indiana is entitled to the floor on the report of the committee of conference.

Mr. HENDRICKS. Mr. President, I shall not occupy the attention of the Senate longer.

The PRESIDENT pro tempore. The question is on concurring in the report of the committee of conference; and as it takes two thirds to decide that question the roll must be called.

Mr. FOWLER. I do not intend to trespass on the time Of the Senate, but I wish to say one word. I have already stated my views on this subject generally; but the amendment as it is now presented entirely ignores the great principle of human rights. There is nothing protective in this amendment except in regard to color, race, or previous condition of slavery. The principle of the Declaration of Independence is entirely ignored. It is not an amendment that gives manhood suffrage at all. That part of the subject I do not wish to say anything about; I have already expressed my views. The right of suffrage is a greater right than the right of holding office for this reason: thg principle laid down in the Declaration of Independence is that Governments derive their jnst powers from the consent of the governed. Of course the right to hold office must be an inferior right to that of voting, because it is not supposed that men who have the right to con' sent to the Government are going to consent to a Government which would debar them from the right to hold office.

Again, I think the Constitution as it stands at present would guaranty to each citizen of the United States the right to hold office if he were elected. I do not doubt on that point myself. A proposition is made here to incorporate this principle in the Constitution, and an amendment lias been made to it which takes out the principle from this amendment, thus placing a construction upon the Constitution which denies the right of the citizen to hold office. Now, if this amendment is made to the Constitution as it stands it will deny to those citizens specified in the amendment the right to hold office. That is the clear anil inevitable construction of it. That of course defeats the rights which the citizen holds under the Constitution as it stands at the present time.

Mr. POMEROY. In order that I may vote intelligently I want to ask the Chair a question. When this vote is taken, if the Senate do not concur in the report of the committee of conference, will it be in order for me to move that the Senate recede from its disagreement to the House amendments to our resolution and agree to the same? If we vote to disagree and non-concur with this report of the committee, or if the motion to concur be not carried by a two thirds vote, then I want to ask theXIhair whether it will be in order for me to move to recede from our disagreement with the House and agree to the House amendments to our resolution?

The PRESIDENT pro tempore. That is anticipating a difficulty that may be a real one when it occurs; but it has not yet arisen.

Mr. POMEROY. An answer to the question will help me in voting. T do not know how to vote until I know the decision of the Chair on that point.

Mr. STEWART. I suppose the gentleman knows all about parliamentary law and he does not want any instruction. We are not going to turn the Senate into a school to instruct the Senator from Kansas in parliamentary law.

The PRESIDENT pro tempore. My impression is that if the Senate refuses to concur that is a disagreement to the report, on which a further conference may then be asked. I do not think anything further can be done.

Mr. POMEROY. The Chair holds then that a motion

Mr. CONNESS. I rise to a question of order sir There can be no question such as the Senator raises put to the Senate. The Chair has ordered the roll to be called. The question raised by the Senator is predicated upon what may transpire hereafter.

The PRESIDENT pro tempore. Very true. The question has not arisen.

Mr. POMEROY. I was asking the question for the opinion of the Chair.

Mr. CONNESS. Itisawrong time for that. Let us vote.

Mr. POMEROY. I am to judge myself whether it is the wrong time or the right time.

Mr. CONNESS. i rise to a question of order.

The PRESIDENT pro tempore. There cannot be more than one question of order at e, time.

Mr. POMEROY. I was not suggesting any question of order. I was asking the Chair whether I could at a given time make a motion and have it in order.

The PRESIDENT pro tempore. You can make the motion; but the question would be whether it would be in order when it was made? The opinion of the Chair now is, unadvised, that it would not be in order to make that motion at that stago of the proceedings, and that" the regular way would be, it the Senate should non concur which in the opinion of the Chair would be equivalent to a disagreement, to ask for a further conference. The question as on agreeing to the report of the committee of conference.

Mr. BUCKALEW. Mr. President, before this question is put to a vote I propose to submit a few observations which seem to me to be timely.

In the first place I have to observe that what I supposed would occur from the appointment <>f the committee of conference has actually ■fakeu place. I was of opinion, and expressed that opinion, that sooner or later the Senate would be brought to the point of agreeing to i ome House proposition; that all the effort expended in this body in shaping a proposed amendment to the Constitution would be lost, wo uld go for nothing; that the House of Representatives would have its own way; that some proposition formed by it would be accepted; and I went on to observe that this would be in accordance with the proceedings of Congress for the last half dozen years on subjects of this description—I mean on political questions, or those having a political complexion.

I am not. therefore surprised when the committee of conference bring back to us the original House amendment, it' not in exact terms, in substance. It is precisely the amendment which the House passed originally and sent here, and which the Senate attempted to amend, in which attempt a very large amount of time was expended, and a good deal of effort alt o including the holdingof a protracted night session. The acceptance of this report of the committee of conference thus will be consistent with congressional history and action for many years, during which the Senate has usually given way to the House.

Another point of more importance: it is my opinion, and I take this occasion to express il, that the amendment power of the Constitution does not authorize this change. It is my idea that the amendment, clause has some limitations, the leading and principal one of which being that an amendment must be within the scope and purpose of the original instrument. It must be in pursuance of the objects for which the Constitution was formed; within the general scope and purpose for which it was made. I believe that you may submit an amendment to the Constitution to the several States changing the qualifications of voters who choose members of Congress and electors of President and Vice President of the United States, or regulating the manner in which these Federal officers or officials shall be chosen. An amendment with either of these objects would be within the general purposes of the original delegations of power to the Government of the United States, or rather within those general objects for which the Government of the United States v v s established. But this amendment goes further. It proposes to establish a rule of suffrage for State purposes, one which will obtain at State elections and give direction to the political institutions and political action of the several States.

Now, sir, consider: if a provision looking to that object had been put into the Constitution originally no one can doubt that the Constitution would have been rejected; it would not have been ratified by nine States; it would not have gone into operation; it would never have had legal existence as the fundamental law of the land. For the States with the ideas that then obtained would not have surrendered up to this Government which they were forming control over their local institutions. Above all they would not have permitted this Government, or three fourths of their co States to have regulated State suffrage in any way whatever, to have prescribed the qualifications which should obtain for an exercise of that right.• if by virtue of this power ,of amendment which is in the Constitution you can propose and adopt an amendment which shall have the effect ot prescribing the rule of suffrage for State purposes what, have you done? You have put the institutions of the State, their home institutions, their domestic policy, their local frames of government, their sovereignty, and their powers altogether within the control of three fourths of the other States.

Mr. Madison, in certain numbers of the Federalist, proceeded in a masterly .manner to portray our compound system of government. He stated, and he stated truly, that our system was compounded of two great elements, the one national and the other State; that the two principles, the one of State power and of State sovereignty for certain purposes, and the other of national power for common purposes, both of defense and of internal polity, enter into the constitution of this Federal Government and were recognized by it. He argued at length and with great power that the maintenance of both these principles was absolutely necessary to the existence of free and successful government in this country. I but allude to those essays of his as containing in a more full and ample manner than it is convenient for me to state the ideas upon which this opinion which I have now expressed is founded, that no State ever surrendered up to three fourths of its co States a power by way of amending the Constitution to revolutionize and change the State frame of governments in the vital, the most important particular possible—the right of suffrage; in other words, never surrendered up to its co States the power to say who should constitute the State. That is the point struck at by this amendment.

What is a State in the true sense of the term? It. is not the government, ot the State. Government is but a representative under our system. The State is composed of the people of the State; and when you come to define that term" people" in its political sense, under our institutions it means the electors of the State, for with them is lodged the sovereign power of the State, and they participate in the possession and enjoyment of that power with no other community or power under heaven. The electors of the State, then, constitute the State; with them is lodged its sovereignty, and, as I think, the State government and the Federal Government are simply agents exercising this sovereign power, because its exercise lias been delegated to them. Now, what is the principle which underlies this amendment before you? It is that three fourths of the States, as distinct political communities, acting upon this question of amendment, may reach into a co State and change that State; may decree that those who hold its sovereign powers shall held them no longer, or that they shall participate in the enjoyment of those sovereign powers with others against their will. I insist that this is so clearly a departure from any of the general principles on which the Constitution was formed and this Federal Government established that it does not and cannot fall within the amending power of that Constitution. In taking this ground I do not argue against Federal power properly understood, nor does my conclusion weaken any just principle or argument in favor of efficiency and vigor in this Government, the common Government for all the States. I admit that by the amending power you may provide who shall choose members of the lower House of Congress; you may provide who shall choose your presidential electors; you may provide that your electoral colleges shall be abolished and that your President, shall be chosen in a different manner; you might provide, were it not for a particular clause of the Constitution, that the States should be represented in this body in a different manner from what they now are. It is only because there is a limitation in that respect that you cannot by amendment provide that the States shall be represented altogether in a different manner from what they now are.

I admit all legitimate consequences which are drawn from the insertion of the amending clause in the Constitution of the United States, that it may extend to any object or purpose for which this Government was made or which is .necessary to its efficieatand successful operation as a, common organ of all the States and of all the people of all the States,

But, sir, not only were the people indisposed originally when the Government was. founded to grant any such power over local or State arrangements, and particularly over the sovereign powers of the State, the manner in which those powers should be bestowed and who should exercise them—not only did this jealousy exist originally against undue grants which should trench unnecessarily upon the sovereignty of the States, but every .reason, every argument which originally, and during all the earlier periods of our history was produced upon the subject of the distribution of power between the States and the Federal Government tells in the same direction; awl even if this amending power should be held to be, what it is not, a power to change a, State and to make it something that .it is not, it, would be, upon every ground of legitimate argument, unwise to enter upon the exercise of such power.

Mr. President, I have but little to add. I hope when this amendment goes down to the States for their consideration, as I suppose it will, that upon this ground which I have mentioned, if upon no other, they will reject it; that a competent number of them will withhold from it that ratification which you invite. If they do so, they will so far as this question is concerned have maintained our system of governments as they were originally made and as it was intended that they should exist forever, or at least until in the course of ages some convulsion, some great change which should rock society to its foundations should subvert the entire structure which they had reared. If the States to whom you send this amendment shall stand forward and reject itf not merely upon the ground of policy, not merely upon the argument that it is doubtful in character or in result, but upon the ground that it is a fundamental, an injurious, an unauthorized departure from the fundamental principles of our system Of government, they will have given a guarantee and a security to our institutions which will not fail us hereafter and will exercise a most salutary influence upon the proceedings of this governmentand upon the constitution ot political parties throughout the country; for it will then have been determined upon good ground that, there is a clear limit upon this power of amending the Federal Constitution, that there are some rights which it cannot touch or overthrow, that republicanism and republican institutions in this country are not altogether the sport or plaything of a mere majority nor of a three fourths vote of the States of the Union, that even a minority of the States are secure in those rights which they have always hitherto enjoyed, and which it was intended when the Constitution was made should .always be sacred from interference either by this Government or by their co States

Mr. MORRILL, of Vermont. Mr. President, but four working days now remain before this session of Congress will have reached its close. If we were to take up the bills upon the tables of the two Houses that are necessary or at least proper to be acted upon and barely read them, without debate, we should hardly be able to more than discharge our legitimate duties. From my knowledge of the state of business in each House I am prepared to believe that we must accept the report of t iis committee or abandon all hope of any amendment of the Constitution being proposed by this Congress.

I would much prefer some different amendment from this; and yet 1 am not prepared to say that this does not go as far as would be likely to prove acceptable to a majority of the people. I trust, therefore, that without further consumption of time, considering the vast amount of business that is yet remaining to be done, those of us who are in favor of accepting ttfe best that we can obtain will proceed to vote.

Mr. ANTHONY. Mr. President, I am inclined to support this amendment for two reasons, because in its present form it is not liable to the objection which constrained me to vote against the proposition which first passed the Senate, and because I apprehend that if recommitted to a committee of conference, either to the one which reported it or to a new 'one, it would come back to us burdened with other conditions which would make it much le ss acceptable.

I believe in negro suffrage. I voted for it when the question was submitted to the people of the State which I have the honor in part to represent and in which it happily prevails. Not holding to such liberal views as some of the Senators on the question of suffrage, believing that it is not a natural right but a right derived from society and properly under the control of society, I do not think that color is one of its just limitations.

I felt no hesitation in supporting the reconstruction measures which required that the colored population should be consulted in the framing of the fundamental compact. There was no legal government in the insurrectionary States except military government. Both Houses of Congress had declared that those States were not entitled to be represented in Congress until they should form governments in harmony with the Constitution of the United States and acknowledging its authority, and till Congress should recognize such governments. When Congress came to inquire if the new governments were republican in form it was bound to examine the popular basis on which they rested; and it was right and convenient for Congress to state in advance what evidence it would accept as conclusive on that point. In this way it came that negro suffrage was the result of a rebellion undertaken to extend and perpetuate the enslavement of the negro race. I apprehend that there is no possible danger of their losing the rights which have thus been conferred upon them. The ballot has been given to them, and cannot be taken from them without their own consent. To doubt their ability to keep it is to doubt the wisdom of conferring it upon them.

But I confess a great reluctance to changes in the fundamental law. The amendment of the Constitution is one of the gravest matters which the instrument itself devolves upon Congress and upon the States. The guards which the fathers threw around it, the cautious and conservative provisions with which they protected it the respect which they showed for the rights of the minorities, all admonish us that if we would administer it in the spirit in which it was framed we should approach the subject of amendment deliberately, with ample time for consultation here, with opportunities for full and frank consultation by the States and by the people j that we should take no advantage of accidental majorities, but should secure to every proposition of amendment the fair and considerate judgment of the authorities to which the Constitution has confided the matter. But it seems plain that Congress has determined to submitto the States some proposition of amendment of the Constitution on the subject of suffrage; and this is the form of all those in which it has been presented, except the amendmentof the Senator from Michigan, [Mr. Howard,] that strikes me as least objectionable. In voting for it I vote merely topresent it to the States for their constitutional action, to ask the judgment of the States upon it, and 1 by no means thereby surrender my right of judgment upon its ratification when the discussion shall come up in the State with whose high commission I am honored in this Chamber.

I did not happen to be in my seat when the Senator from Massachusetts [Mr. Wilson] alluded to the suffrage of Rhode Island. I had gone to the House of -Representatives to con-| suit with my colleague, .the chairman of the Committee on Printing on the part of the House, upon a matter that had been committed to the joint committee. I do not deem it incumbent upon me to make any defense of our right to make our own regulations for our own State. They suit us; I am sorry they do not please others; but they were not made for the people of Massachusetts, they were made for us, and whether right or wrong they suit us, and we intend to hold them; and we shall not ratify any amendment to the Constitution of the United States that contravenes them, and we have the satisfaction of knowing that without our State the necessary number of twentyeight States cannot be obtained for the ratification of any amendment whatever until new elections take place. What opportunity there will then be for it other Senators can judge as well as I.

Mr. WILSON. "Little Rhody:' takes the responsibility.

Mr. ANTHONY. She takes the responsibility of managing her own affairs in her own way, and she takes the responsibility of exercising her constitutional rig ht which in this Chamber and' upon this subject is equal to the constitutional right of any other State in the Union. If ihat is a mistake it was a mistake which the fathers made, and the advantage of which we are not disposed to surrender. But if we fail to satisfy our friends in Massachusetts in our management of our internal affairs it must be a consolation to them that in the early colonial period they robbed our State of so large a part of the territory that rightfully belongs to us, thereby rescuing so much from the principles of soul liberty professed by Roger Williams and transferring it to the protection of those principles which drove him from the borders of Massachusetts and illustrated their practical operation in the proceedings against the Salem witchcraft.

Mr. DAVIS. I would ask my honorable friend from Rhode Island one question. Does my honorable friend believe that it is right and proper that the State constitution and the State government of Rhode Island or Kentucky should be altered by the two Houses of Congress in direct opposition to the principles and wishes of those States respectively?

Mr. ANTHONY. I suppose that Congress has a right to submit this amendment to the States, and it is proper that it should be submitted in that form which is least objectionable. I vote to recede from that amendment which the House put upon our proposition, which makes it more objectionable to me. That is my vote.

Mr. DAVIS. My honorable friend has not answered my question. My question is, is it right and proper that the two Houses of Congress shall change the constitution and the government either of the State of Rhode Island or the State of Kentucky in opposition to the wishes and the will of their people?

Mr. ANTHONY. As that is a private matter between my friend from Kentucky and my-! self I will answer that question when the vote! has been taken. [Laughter.]

Mr. DAVIS. That is sufficient, sir. [Laugh-

Mr. NORTON. Mr. President, I suppose now of course the vote is to be taken upon this amendment. I do not expect to say anything that will affect or change the vote of any member of the Senate; but I think it due to those members of the body who are opposed to this proposition, and I think it due to the country, that it should be made known that this proposition now at last when it comes to be passed does not receive the sanction in fact of two thirds of the Senate. I think it legitimate and proper that the country should know that Senators rise here in their places and say that they do not approve of this proposition, say that they do not think for themselves and for their States that it ought to be passed, and yet from some pressure or for some purpose they vote for it and they submit it to the States for their ratification or their rejection.

Sir, if 1 were a Senator from one of the recently reconstructed States, as they are denominated here, and believed as those Senators d K that the right to vote implied the right {o be\ voted for, I would not vote for a proposition/ to amend the Constitution that did not inelud&/ the right to hold office as well as the right to? vote; but many of these Senators, while they! think the proposition ought to go that far, -and! while they hesitate and are reluctant as theyS tell you, after having voted for a proposition/ like this, to go back to their constituents, not/ having urged the right to hold office as well,! yet they are prepared to vote for this propo y sition. The Senator from Rhode Island [JjJEft Anthony] a few moments since explained why he might vote for this proposition; and what was his reason? Why, sir, because it does not run counter to the sentiments of thepeopleof Rhode Island, because it does not trench upon the opinions of the people of Rhode Island upon the question of suffrage, he is willing to vote for it. If it interfered with their sentiments he would not support it we may infer from the fact that he voted against the proposition the other day.

So, sir, I want the country to know that the Senate of the United States agree to this report of a committee of conference on this subject where a two thirds vote is required by the Constitution to submit it to the several States, when in point of fact two thirds of them do not approve of it and do not believe in it. The Senator from Rhode Island says that this is merely a proposal submitted to the States, and after that he reserves to himself the right to approve of it or not in his capacity as a citizen of the State of Rhode Island. The Constitution provides that "whenever two thirds of both Houses shall deem it necessary" they shall propose amendments to the Constitution. Now, sir, I submit that in the exercise of this power of amendment under the Constitution every Senator when he votes for this proposition in his place says to his constituents and to the country that he believes in his heart and m his conscience that the amendment is necessary; that he believes that it subserves the interests of the General Government; that he believes in the discharge of his duties as a Senator that it is necessary that this amendment should by made, and thus believing he proposes to submit it to the States for their adoption or rejection.

So, Mr. President, it is not allowable for a Senator, in my judgment, to say that this is a proposition which the States may or may not adopt as they please. There is a higher, there is another responsibility, and that is that each Senator when he votes for this says in the discharge of his duties as a Senator that he believes it is necessary that this amendment to the Constitution should be made, and he says to the States that he believes they ought to adopt it.

But, Mr. President. I merely rose, as I said at the outset, for the purpose of calling the attention of the Senate, and, so far as I might, the attention of the country to the fact that this proposition, while it does not receive in point of fact the approval of two thirds of the Senate, is yet to be passed and submitted to the Stal es and this fact, as I said, is apparent from the expression of Senators upon the subject, from the views of Senators on the amendments that have been pending, and from the fact that they defeated the other day a proposition almost identical with this. If I have succeeded in calling the attention of the Senate and of the country to this fact I have done all that I care to do. This amendment is to pass, I have no doubt; it is to be submitted to the States. Party appliances, party machinery, and party discipline are to be brought to bear on the Legislatures now in existence in the several States to adopt it. It may be adopted, but when it is thus adopted by the States, and twenty seven States compel all the thirty six to accept this as their rule of suffrage -In all their elections, from that day, in my judgmeStj you may date the downfall, the destruction- of the rights of the States, and from that clay you may date the consolidation, the centralization, of power in the Federal Government, and you -may date the despotism of Congress.

Mr. WARNER. Mr. President, I desire to say only a word. I want respectfully but earnestly to enter my humble protest against the character of this amendment. While I shall probably vote for it in the shape it is, I shall do it rather in deference to the judgment of older and wiser men than myself than in accordance with nay own deliberate judgment. I do not feel that it is worth our while to I change the organic law of the country, to V amend it for the protection of a single class, janless at least we protect that one class com- /pletely and entirely. I have no doubt that if Mississippi or Texas or Virginia were to come here with a constitution containing these -exact words which we now propose to put into the Constitution of the United States she would not be admitted by this Senate. After the example of Georgia I do not believe that this Senate and this Congress would accept from one of these States a constitution container ing these identical words upon the question of suffrage and the rights of the colored people. I believe that this proposition is a narrow and illogical one, and one that is unworthy of the grand opportunity that is presented to us. In my own humble judgment, I believe it is the duty of the hour to put into the Constitution a grand affirmative proposition which shall protect every citizen of this Republic iu the enjoyment of political power. Not only do I believe that that is right and just, and the duty of the hour and the opportunity, but I believe it is the wisest thing we can do. I believe as a party measure the strongest proposition that could go before the country would be one to protect all classes of men, white as well as black, in the exercise of the rights which all citizens legitimately should carry with them.

So much I think it my duty to say in regard to the character of this amendment. Nor am I satisfied that it is the best provision we could get. .My own judgment is that if the Senate were to stand firmly upon a broader proposition it would be adopted and go to the people, and would be adopted by the States. A proposition broader than this has been adopted by both Houses; we have also adopted a narrower one, and yet we have refused to adopt this one intermediate between the two. The other evening when I moved to concur in the House amendments to our resolution the Senate very promptly laid the whole matter on the table. I think we might yet reach a proposition which should at least protect one class perfectly in the enjoyment of their legal rights, if it were not broad enough to reach all classes of citizens in this country.

Mr. FOWLER. Mr. President, I suppose this report will be concurred in; but 1 presume it will require a two thirds vote to carry it. I simply wish to say before the vote is taken that my understanding of the proposition as it now stands is that it decides by an amendment to the Constitution that the Constitution does not guaranty to all citizens of the United States the right to hold office. I understand it to be simply the assertion of that principle, which has been maintained in a number of the States, and that it sanctions and sanctifies the action of the Georgia Legislature which has kept out two Senators from this body during the present session; and that we arrive at this principle through the action of a gambling committee, which after the Senate and House of Representatives had adopted a more liberal and much better principle, shuffled the cards over again and gave us a new deal that will satisfy a certain number of gentlemen. The effect of it is to exclude from office a large number of the citizens of the southern States merely to gratify a prejudice that -exists in certain of the northern States who wish to heap heavy burdens upon the shoulders o f other men that they will not touch with their own fingers.

Tin; PEKSIDi iNTpro tempore. The question is on concurring in the report of the eomTarttee; and on this question the yeas and nays mast bs called.

The question being taken by yeas and nays resulted—yeas 39, nays 13; as follows:

YEAS—Messrs. Anthony, Cattell, Chandler, Cole, Conkling, Gonness, Crasin, Drake, Ferry, Fessenrden, Frehngbuysen Harlan Harris, HowardJEEowe, Kellogg, McDonald, Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nye Osb orn Patterson of New Hampshire, Ramsey. Rice, Robertson, Sherman, Stewart, Thayer, Tipton. Trumbull, Van Winkle, Wade, Warner, Welch, Willey, Williams, and Wilson—39.'-

NAYS—Messrs. Bayard, Buckajew, Davis. Dixon, Doolittle, Fowler, Hendricks, MeCreery, Norton. Patterson ofTennessee, Pool Vidkers and Whyte—13. ABSENT— Messrs. Abbott, Cameron, Corbett, Edmunds, Grimes, Henderson, Pomeroy, Ross. 'Saulsbury, Sawyer, Spencer, Sprague, Sumner, and Yates—14.

The PRESIDENT pro tempore. On this question the yeas are 39, and the nays are 13. Two thirds of the Senators present having voted in the affirmative, the report is agreed to. Mr. Williams obtained the floor.

Mr. DAVIS. I rise to a question of order. I ask the Chair what the number of votes was announced to be.

The PRESIDENT pro tempore. The yeas were 39, and the nays were 13; being two thirds.

Mr. DAVIS. The question of order that I make is that the decision of this question has not been announced by the Chair according to the Constitution. The Chair has announced that the proposition has received the vote of two thirds of the Senate, and therefore that it has passed. I controvert that fact. There are now thirty seven States in the Union. They are entitled to seventy four members of the Senate.

Mr. NYE. The honorable Senator will allow me to correct him. The Chair did not make the announcement that the honorable Senator says he did. He said it received two thirds of the votes of all the members present. That was the announcement by the Chair.

Mr. DAVIS. The Chair announced that the proposition had passed.

Mr. HOWARD. The Chair announced that the Senate had concurred in the report.

Mr. DAVIS. I merely want to state my point of order. I do not intend to cqiBsume any time upon it.

The PRESIDENT pro tempore. The Chair desires the Senator to understand what the Chair said in the announcement of the vote. It was that two thirds of the Senators present had voted in the affirmative. That is the way in which it was announced by the Chair.

Mr. DAVIS. But then the conclusion

The PRESIDENT pro tempore. That the report was concurred in.

Mr. DAVIS. That is just as I understood it. Now, the conclusion does not follow the vote which the Chair announced, because the Senate consists of seventy four members, and to constitute two thirds of the Senate a vote of fifty is necessary. My point of order is, that when a less number than two thirds of the Senate is required by the Constitution for any purpose, for instance to ratify a treaty or to confirm a nomination, the Constitution expressly says that it shall be two thirds of the members present. In voting upon a proposition to amend the Constitution, the Constitution does not limit the number of two thirds by reciting that it is two thirds of the members present Here is the language of the Constitution:

Tbo Congress whenever two thirds of both Houses shall deem it necessary," &c.

Now, if Senators will look to that part of the Constitution which regulates the ratification of treaties by the Senate, or the confirmation of nominations to office by the President, they will perceive that the Constitution declares expressly that the two thirds meant to effect those purposes are two thirds of the members present. In relation to this impori xni matter of amending the Constitution therais no such restricted definition of two thirds; but the Con- i; sttttrticm in broad language presides that1 grass; whenever two thirds of both- HonMs eh«41 deem it necessary," &e., ahall propese amendments of the Constitution. Now, th anestion is, whatis two thirds of both HouSes? What is two thirds -of the Senate t Chuckle heads may laugh: interlopersmay laugh; but theproposition that I make is technically, logical^ and -constitutionally true..;;

Mr. WILLIAMS. I rise toa poiBtof order. I "believe I was recognized by the Chair. The Senator frefm Kentucky rase to a point >af order; and he is makinganextended argument; and I think I am entitled ta proceed with my ^business. I have no objection to his .'stating the point of order; but proceeding: to an extended argument after I am on the floor and recognized by the Chair, it seems to me is not in order.-.

The PRESIDENT pro tempore. Questions of order, by our rules, are not debatable.

Mr. DAVIS.. I did not intend to interfere with the Tights of the honorable Senator from Oregon..••

Mr. WILLIAMS. I was willing to give a reasonable time for the statement of .the point of order.-•

Mr. DAVIS. Weil, sir, I will yield -to his resumption of his right. I think* I haYe satisfied my State that the two thirds required "by the Constitution to propose amendments to that instrument, from the annunciation of the vote of the Senate, has not been obtained in favor of this proposition.-.-..,'

Mr. HENDRICKS. Will the Senator from Oregon allow me on this questiqa to call the attention of the Presiding Officer to the language of the Constitution in another article. The article of the Constitution controlling this question speaks of two thirds of the Senate. The Presiding Officer will observe in article one, section three, paragraph six, on the subject of' impeachment, that it is provided that the Senate shall try the impeachm nt and no person shall be convicted without the concurrence of two thirds of the members present." In one case the Constitution- speaks of two thirds of the members present deciding the question, and in the other ease the bill must have two thirds of the body." I wish also to call the attention of the Chair to the provision for the ratification of treaties.;

Mr. HOWARD. While the Senator is looking at the Constitution, 1 wish to know what the question is before the Senate?

The PRESIDENT pro tempore. A question of order is raised.

Mr. HOWARD. Then I submit, that it is not in order to debate it.

The PRESIDENT pro tempore. The question of order is raised thai the vote was not carried because there were not two thirds of the entire Senate in the affirmative, but only two thirds of the members present.

Mr. HOWARD. I ask for the. decision of the Chair.

Mr. HENDRICKS. I wish to call the attention of the Senator from Michigan, if he desires to look into the subject, to the second section

Mr. HOWARD. It is not debatable.

The PRESIDENT pro tempore. Questions of order are not debatable.

Mr. HENDRICKS. I do not desire to debate it.

The PRESIDENT pro tempore. The Chair has decided the question precisely as all these propositions for amendments have been heretofore decided. The exception probably has never been taken.

Mr. TRUMBULL. If the Chair will indulge me a moment, this very point was raised in regard to a constitutional amendment some years ago and the Senate decided by a vote, almost unanimously, that two thirds of the Senators present were sufficient' to carry a constitutional amendment. I think that the Presiding Officer upon reflection will recollect it. It was the constitutional amendment that was proposed before .the war. I myself made the point for the purpose of having it decided, «ndit was decided, I think by a nearly unanimous vote, that two thirds of the Senators present,«, quorum being present, was sufficient to carry a constitutional amendment.

Mr. HENDRICKS. I will ask the Senator from Illinois if that vote did not show two thirds of the Senators of the States then represented in Congress?

Mr. TRUMBULL. No, sir. The constitutional amendment to which I refer was proposed before the war, at the close of Mr. Buchanan s administration, when Breckinridge was the Presiding Officer of the Senate; and I myself raise the question whether two thirds of theSenate, there beingaquorum present, could propose a constitutional amendment.

Mr. EDMUNDS. Whatwastheainendment?

Mr. TRUMBULL. The amendment, which passed, was one that perhaps is foreign to this question, and the Senator from Vermont will not want to hear it at this time. It was a proposition to amend the Constitution so that never hereafter should slavery be abolished; and I am sorry to say it passed this body, not by my vote, however, at that time.

Mr. POMEROY. That was before the flood.

Mr. TRUMBULL. I raised the question then—the Senator from Rhode Island [Mr. Anthony] recollects it—for the very purpose of having it decided.

Mr. ANTHONY. Irecollect that the Senator raised the question, and I believe I asked him why he raised it, and he said he did it to settle the question that less than two thirds of ail vhe Senators might propose a constitutional amendment.

Mr. WILLIAMS. I ask for a decision on the question of order.

The PRESIDENT pro tempore. I believe it has been decided according to all the precedents. The Senator from Oregon is entitled to the floor.