February 8, 1869

Mr. STEWART. I now move that the Senate resume the consideration of the constitutional amendment.

The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H. R. No. 402) proposing an amendment to the Constitution of the United States.

Mr. FRELINGHUYSEN. Mr. President,

Mr. STEWART. Before the Senator proceeds, I move to rescind the order for a recess; let us go right on to day I think that will bring us to a conclusion sooner.

Mr. HENDRICKS. Is that in order while the joint resolution is pending?

The PRESIDENT pro tempore. It is not in order now unless by unanimous consent.

Mr. HENDRICKS. I object.

The PRESIDENT pro tempore. Objection being made, the motion of the Senator from Nevada cannot be received at this time.

Mr. FRELINGHUYSEN. Mr. President, I have a suggestion or two to make in reference to the pending constitutional amendment, and I shall compress what I have to say into a few words. It is not my purpose to follow the arguments of Senators on the other side of the House in reference to the sovereignty of the States. That question has been sufficiently discussed in the country. A State, which cannot make a treaty, or coin money, or emit bills of credit, or lay any imposts or duties on tonnage, or keep troops or ships of war or engage in war with any foreign Power—a State, all of whose territory is subject to the laws of another Power—for the Constitution declares that the Constitution and the laws of the Federal Government shall be the supreme law of the whole land—a State, that by the very Constitution under which we all live is subject to have even its form of government modified and changed under the provisions of the national Constitution, may be a sovereignty, but if so, it is only in name, and in nothing more. But that subject I shall not discuss.

It is strange that the Senators on the other side of the Chamber oppose this amendment; it seems to me that from their long habit of traveling in a certain pathway they pursue that road when the object they were following has entirely diappeared. They seem to be striking at the red mantle in the circle after the object of their hostility has departed. Let me remind them that this isarepublican Government; one in which the sovereign power is vested in the people, exercised and executed by representatives by them elected. Those who oppose the measure claim for themselves devotion to the principle of democracy, which is a government nearer to the people, claiming the same depository of power, but claiming that it is to be exercised more directly by the people. Yet we have this singular paradox, that the Democracy of the Senate oppose an amendment which will give the power of manifesting sovereignty to four million free native born arms bearing taxed citizens of the United States. Why, Mr. President, they are placing black men of this country in a much worse condition as to all governmental power and rights than were the slaves.

Under the Continental Congress the question arose who should bear the expense of the then existing war, and it was determined that it was to be borne by the several States in proportion to their population; and the States where slavery existed agreed that they would count every five slaves as equal to three free citizens, and contribute accordingly. It was here we got the principle of our three fifths representation which was' introduced as the basis of slave representation when the Federal Constitution was formed. The slaves were represented in Congress, and the Senator from. Kentucky and the Senator from Delaware would have felt themselves under the same obligation to resist any legislation unfriendly or injurious to the slave constituency as that to the injury of the free white citizen. And yet, when those who were once slaves are free and taxed, bear arms, and are declared to be citizens of the United States, they would take away all representation and all possible power in the Government. This, for a nation which has engraven on the palm of one hand '1 no taxation without representation," and on the palm of the other hand all men are created equal,” is politically flagitious.

Again, they tell us that we are destroying the balances of government by taking away from the States the right of regulating suffrage. I agree with them that it is of importance that the balances of the Government should be preserved; that with our illimitable domain it is essential to the well being of the Government that we should preserve the rights of the States and their dominion over all the domestic relations of society, and I would hesitate and resort to other expedients before I should be prepared to vote for an amendment to the Constitution which took entirely away from all the States the right to regulate suffrage. But does this amendment take away from the States that right? It has been so stated and reiterated over and over again in this Chamber. I do not so understand the amendment.

There were before the Convention that formed the Constitution two propositions on this subject, one that suffrage should be regulated by the General Government, the other that it should be under the control of the States. The question was ably and fully discussed, and it was finally determined that everything considered it was better that suffrage should be regulated by the States. Now, in view of circumstances that have occurred we propose a modification of the determination of the Convention. We propose to preserve the rights of the people from the effects of an unjust prejudice. We want to give the people the opportunity to say that the States in regulating suffrage shall not destroy it as to native born, free, arms bearing taxed citizens of the United States.

Sir, we have been referred to the fathers, compared with whom we have been told that we are but pigmies on Alps. If gentlemen will read what the fathers said on this subject they will find that they held sentiments entirely antagonistic to those which are advanced by their eulogists. Let me read one or two expressions. Mr. Madison said when discussing this question:

"The right of suffrage is certainly one of the fundamental articles of republican government and ought not to be left to be regulated by the Legislature. A giadual abridgment of this right has been the mode in which aristocracies have been built, on the ruins of popular forms —Madison Papers, vol. 3, p. 1253. Dr. Franklin said:

"It is of great consequence that we should not depress the virtue and public spiritof our common people, of which they displayed a great deal during the war, and which contributed principally to the favorable issue of it. He related the honorable relusal of the American seamen, who were carried iu great numbers into the British prisons during the war, to redeem themselves from misery or to seek their fortunes by entering on board the ships of the enemies to their countiy, contrasting their patriotism with a contemporary instance in which the British seamen made prisoners by the Americans readily entered on the ships ot the latter, on being promised a share of the prizes that might bo made out of their own country."**** "He did not think that the elected had any right in any case to narrow the privilegesof the electors —Ibid p. 125 1

What would those men have said to the proposition that a class more numerous than the whole population of the country in their day, ■who were born here and who were free citizens, should be entirely disfranchised, and that, too, under the claim of democracy? You cannot turn to any of the debates in the Convention in reference to suffrage without finding the spirit of those great men in perfect harmony with the spirit of this amendment. All that is proposed by this amendment is to permit the people of this country to determine whether suffrage shall as to this numerous class be destroyed. Itdoes not take away from the States the right to regulate. It leaves the States to declare in favor of or against female suffrage;• to declare that a man shall vote when he is eighteen or when he is thirty five to declare that he shall not vote unless possessed of a freehold, or that he shall not vote unless he has an education and can read the Constitution. The whole question of suffrage, subject to the restriction that there shall be no discrimination on account of race, isleftas it now is; and yet Senators on the other side of the Chamber have discussed this question before the people as if we really were taking away all power from the States. Instead of taking away power we are submitting it to the American people to say whether or not it is their will that the States of this nation shall preserve a republican character by suffering free, arms bearing citizens to vote.

Mr. President, the Democracy profess to sympathize much with the South, because they have had negro suffrage, as they say, imposed upon them against their will. The effect of this amendment is to harmonize this subject all over the land; if there is a prejudice because it is considered a disgrace to have negroes vote, we remove the disgrace and prejudice by applying it to the whole country. I believe, sir, that the councils of the nation were deprived of the benefit of the valuable services of the Presiding Officer of this body because he believed that the northern people were honorable enough when they had imposed negro suffrage on the South to take it upon themselves, and he acted on that belief; and I do not know that an honorable and useful career in the Senate could be better terminated than by making such a sacrifice to so noble a principle.

We have tried universal suffrage at the South, andit hasanswered well. It has answered well because a principle is always true to itself; and if universal suffrage unqualified is a success at the South will not impartial suffrage, guarded as it may be at the North, by such qualifications as the people themselves impose, do equally well 1 May we not find in this amendment a solution of all the difficulties that hang around the suffrage question and a platform upon which this whole nation may in a year or two harmoniously meet? Give the ballot equally to all and the people will sec that it is not improperly restricted or abused. There is more strength, power, and vitality in the great principle which lies at the foundation of the Government and without which the Republic is a great carcass within the broad extended ribs of which there is no soul; there is more vitality and strength, I say, in this principle of human equality before the law than there is faith in the principle even in the minds of its advocates. I am not afraid to trust it.

There have been a number of amendments offered to this proposition. One was offered by the Senator from Oregon, [Mr. Williams,] the effect of which was to take the regulation of suffrage from the States and give itto the General Government. I am not prepared to vote for such an amendment now, and unless it should in the future history of this country become necessary I think suffrage is better where our fathers placed it, guarded as we now propose. Of course the recently reconstructed States are subject to the further conditions as to suffrage lately imposed on the renewal of their relations to the General Government,

Another amendment from the same Senator is to make this amendment inapplicable to persons of foreign birth. The reason for this proposition, doubtless, is that those States which are on or near to the Pacific coast dread the immigration of Asiatics. I sympathize somewhat with their views. I am not in favor of giving the rights of citizenship or the right of suffrage to either pagans or heathen. I believe that the history of this country, and its laws as well as the spirit of the people, declare just as clearly that this is a Christian as a free country; and I am not in favor of taking steps backward into the slough of ignorance and of vice, even under the cry of progress. This subject, however, can be regulated in the naturalization laws. That is the place to attend to it. This amendment only secures the right of suffrage to the citizens of the United States.

Another amendment has been offered by the Senator from Massachusetts, [Mr. Sumner,] and I do not, in attempting to make a few observations in reply, accept the challenge so gallantly made to all the lawyers of the Senate. The fact is as I listened to him I almost felt sorry that any one knew that I had ever made a livelihood by the practice of that black art. I certainly do not come to accept that challenge. I have no sling; no smooth pebble from the brook—I come to make a suggestion or two, desiring that they may enter the mind of the Senator, and not that any barbed missile shall do him any injury, of which, however, there is no danger. I listened to his argument judicially, for I had formed an opinion somewhat favorable to the view which he advocated; I had even expressed it in the Senate; but in looking at the whole ease I cannot reach his conclusions.

The proposition of the Senator from Massachusetts is not that a bill- shall be introduced and adopted, the validity and constitutionality of which may be tested or which can be enforced; but he proposes to substitute the legislation of Congress for this amendment. To come to the conclusion that such a course would be wise we must be satisfied that beyond doubt the General Government has the constitutional right as against the States to 'regulate suffrage. Let us see if there is no doubt as to the correctness of that conclusion. The Convention that framed the Constitution had this matter under consideration and concluded that the right to regulate suffrage was and should remain with the States and not with the General Government, and they thought that they so framed the Government. For brevity I will read from Curtis on the Constitution rather than from the State Papers. Mr. Curtis, in his work, says:

"Another difficulty which attended the adjustment of the right of suffrage grew out of the widely differing qualifications annexed to that right under the State constitutions, and the consequent dissatisfaction that must follow any effort to establish distinct or special qualifications under the national Constitution. In some of the States the right of voting was confined to" freeholders;" in others—and by farthe greater number—it was extended beyond the holders of landed property, and included many other classes of the adult male population, while in a few it embraced every male citizen of full age who was raised at all above the level of the pauper by the smallest evidence of contribution to the public burdens, The consequence, therefore, of adopting arty separate system of qualifications for the right of voting under the Constitution of the United States would have been that in some of the States there would be persons capable of voting for the highest State officers, and yet not permitted to vote for any officer of the United States; and that in the other States persons not admitted to the exercise of the ri ht under the State constitution might have enjoyed it in national elections."********

The committee of detail, after areview of all these considerations, presented a scheme that was well adapted to meet the difficulties of the cage. They proposed that the same persons who, by the laws pf the several States, were admitted to vote for members of the most numerous branch of their own Legislatures, should have the right to vote for the Representatives in Congress, The adoption of this principle avoided thenecessitv of disfranchising mj any portion of the people of a State by a system of qualifications unknown to theirlaws —Curtig s History of the Constitution, vol. 2, pages 198 199 200.

Then came another difficulty. They said if we leave this subject to the States, they having the right of naturalization, will naturalize foreigners too freely, and they will vote for national officers. To meet this difficulty the whole sub-, jeet of naturalization was placed in the hands of the General Government; and with this compromise the subject was adjusted. The convention thought they had given the regulation of suffrage to the States.

Then, when we look to the tenth article of the amendment we find that it declares that the powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively or to the people 1

And now, to make it perfectly clear that the national Government has the constitutional right to regulate suffrage, so that we can substitute the proposed law of Congress for the amendment, we ought to be able to turn to the place in the Constitution of the United States where the States do delegate affirmatively to the national Government this right; for, at the date of that amendment, it unquestionably was a right belonging to the States. But, in looking at the Constitution, we do not find any such affirmative delegation of power; but on the other hand we do find something that looks very much like an affirmative declaration on the part of the national Government that the right still remains with the States, as the Conventionjntended, for the second section of the first article says that uthe House of Representatives shall be composed ot members' voted for by electors having" the qualifications requisite for electors of the most numerous branch of the State Legislature."

Some hold thaUhat constitution spoke only at its date, and that at that time all the States, with the exception of South Carolina, gave the ballot without regard to race, and that hence the qualifications requisite for electors of the most numerous branch of the State Legislature were without distinction of race; but by looking into the debates we find that the shape in which this article was reported by the committee of detail" was ‘‘requisite from time to time in the States," and when it was reviewed those words were probably considered unnecessary, because a fundamental law speaks in presents it speaks to day as certainly as the day on which it first took effect.

We next come to the fourteenth amendment, and under that I at one time thought, and expressed the impression, that we might find the power to regulate suffrage by legislation, but on examination I think the power is not there. It provides that—

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States -wherein they reside.

"No iitato shall make or enforce any law which shall abridge the privileges and immunities ot the citizens of the United States 1

It is a very significant point that that amendment omits the word "rights." It does not say that "no State shall abridge the rights, privileges, and immunities of citizens of the United States." The argument of the Senator from Massachusetts, to which I listened with so much pleasure, was based upon the position that it was the natural right of the African as a man, in a republics# Goyerument, to have the ballot. If he be correct in this "general position, ebthe fourteenth amendment does not aid his argument, as it makes no provision for rights by that name; a privilege is a different thing from a right. It is a right granted by liiw. The nobles of Great Britain have the privilege of being tried by their peers. The members of Parliament have the privilege of being exempt from arrest. It ia a right granted by law. And we thus come back to the old Constitution before it was amended, and ask whether there is any right for the national Government to regulate suffrage in the States granted in that instrument 1 I think there is not. The word "immunity" does not cover what is claimed.- An immunity is an exemption from a duty; not the guarantee of a right. ,But the second section of the fourteenth article of .the amendment is quite conclusive on this subject. It .provides— "Thatwhen the right to vote at any election for the choice of electors of President, &c., is denied to any of the male inhabitants of such State, being twenty one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion or other crimes, the basis of representation therein shall be reduced in the proportion which the number of such raalo citizens shall bear to the whole number of male citizens ovbr twenty one

In other word s the very amendment- contemplates, after its adoption, a state of things in which tire States will withhold from a certain class of male adults the right to vote, and it does not attach a penalty or a1 punishment as for a violation of the amendment, but makes simply a provision as to the mode of representation utider that state of things. I cannot, therefore, conclude that the fourteenth amendment confers 011 Congress the right to regulate suffrage. We want a further amendment.

1 do not desire to bo considered as indifferent to this great subject, because I cannot discover our constitutional power where, in my opinion, it does not exist. The most desirable thing ia not to possess the greatest liberty or to have the greatest, number of rights. It is of much greater importance to have our liberties and our rights secured, guarantied, chartered, written in the Constitution; so that we can maintain them and leave them to our posterity. Therefore I desire to see the important measure we are now considering made a part of the fundamental law of the land. And while speaking of chartered rights, I will say that there is a class of thoughtful men in society who sometimes are thought to be a little technical, sometimes sticking in the bark, but who only do stick in the bark because they find it is a position where they can the better guard and protect that vitality which is at the heart. They are a class of men who have done as much for civil liberty and human rights as the heroes of history; those men are common law lawyers.

Mr. DAVIS. Mr. President, I certainly admire the close of my honorable friend from New Jersey, for it was very handsome and but just to the common lawyers. I only regret that his whole argument was not in consonance with the eulogy which he passed upon the common law and common lawyers. However, Mr. President, I propose to debate this subject at some length, perhaps for an hour or so; and if it is the pleasure of the Senate to take a recess I would myself prefer that course.

Mr. SUMNER. A recess has been ordered, to commence at four o clock

Mr. DAVIS. It is now very nearly four o clock within a minute or two.

The PRESIDENT pro tempore. The Senator from Kentucky has the floor; and if he will give way the Chair will lay before the Senate a communication from one of the Departments which will consume the time up to the recess.

Mr. DAVIS. Very well.