February 8, 1869 (2)

I have thus, Mr. President, as briefly as possible, expressed my objections to the form which this amendment has received at the hands of the Committee on the Judiciary. I think it contains within itself a grant of power to the Congress of the United States to set up other tests for voting and holding office; any other tests, if you please, but those specifically mentioned in the clause. I am quite sure that neither the Senate nor the House of Representatives, if they look upon this matter in that light, will ever agree to any such proposition; and I am entirely certain that the Legislatures of the several States to whom this amendment may be transmitted will entirely dissent from it; while I have no doubt that if the proposition is plainly submitted of giving to the citizens of African descent the right to vote and hold office like other citizens of the United States the amendment will be carried by a handsome majority.

Mr. HENDRICKS. Mr. President, I did not expect to add anything to the remarks I made upon the platform adopted by the Republican party last year; but I feel it proper to call the attention of the Senator from Michigan to a view that I take of that platform. It is very clear that he and the distinguished Senator from Massachusetts do not agree. They did not agree last year, and when they stood side by side upon the platform they could not have agreed. There is in this platform a distinction taken between the northern and the southern States. There is in this platform claimed for Congress the right to control suffrage in the southern States, the right to extend it to the colored people there. That is whatis claimed in the first part of the resolution, that Congress has the right to extend suffrage to the colored people in the southern States. As an opposite idea to that the last clause of the resolution declares that the control of that subject properly belongs to the people of the States in the northern States.

Mr. HOWARD. The loyal States.

Mi-. HENDRICKS. That is the same thing, I suppose. By loyal States you mean the States that did not go into the rebellion—■ States that, in the language of the Senator from Michigan, "did not forfeit by rebellion their control of the subject." Then in the southern States this platform claims a right for Congress to confer suffrage upon the colored people; in the northern States it claims for the people of the States the right to control thatquestion "properly," not constitutionally.

Mr. HOWARD. Yes, constitutionally.

Mr. HENDRICKS. No, sir; the language is, itbelong to the northern States "'properly."

Mr. HOWARD. It belongs to them from ancient usage—by prescription, if you please. It was one of the original State rights. It was not granted to the people of any of the States by the Constitution. The Constitution found it existing and recsgnized that right as existing in the States.

Mr. HENDRICKS. Here is the language: WMlo the question of suffrage in all the loyal Statespropeiiy belongs to the people of those States." Now, if it properly belongs to the people of the States to regulate suffrage, is it proper for Congress to take it away? If it belongs to the people of the State of Indiana, how can all the rest of the States united take it away from them?

Mr. HOWARD. If the Senator will excuse me, he asked him whether it would be proper for Congress to take it away. Sir, Congress is not going to take it away. Congress cannot take it away. What we are doing does not take away the right of the States in this regard. If that right is taken away it must be taken away by the American people represented in their various Legislatures, and in the form prescribed by the fundamental law of the Republic—the Constitution—to which every citizen is subject and a party.

Mr. HENDRICKS. If it properly belongs to a State can twenty seven States take it away from that one State?

Mr. HOWARD. Yes.

Mr. HENDRICKS. Then it does not properly belongto it it belongs to twenty seven States. It cannot properly belong to one State, because of its State sovereignty, and at the same time properly belong to twenty seven States. The one State is regulated by law, and the twenty seven States by constitutional amendment.

Mr. HOWARD. Will the honorable Senator allow me to call his attention to the very language of the article?

Mr. HENDRICKS. Certainly.

Mr. HOWARD. "While the question of suffrage in all the loyal States properly belongs to the people of those States;" not to each one.

Mr. HENDRICKS. Well, I will ask, can each one of the loyal States control it by a constitutional amendment?

Mr. HOWARD. Undoubtedly.

Mr. HENDRICKS. Without a constitutionalamendment? By a constitutional amendment? Which does the Senator claim? I ask his attention. Does he claim that the southern States have no control over it any more, but that the loyal States, in the form of a constitutional amendment, may take the control of the suffrage away from any one State? Is that the. position of the Senator?

Mr. HOWARD. My position—I now repeat it—is, that while the rebel States were, so to speak, de facto out of the Union, after they had forfeited their political rights under the Constitution, they were at the mercy and subject to the action of the Congress of the United States; while they were in that condition they could not, as against the will of Congress, regulate suffrage or do anything else within the limits of their own States as independent sovereign States, as they are called; but after they shall be remitted to their original condition as States of the Union in pursuance of the regulations and laws of Congress, and become represented in the two Houses of Congress, and thus become reinstated as sister States of the Union, they would of course have the same right as the original loyal States, not only in that respect, but in all others.

Mr. HENDRICKS. Mr. President, in the course of this short debate the Senator from Michigan has put two constructions upon this last clause of his platform. In the first place, he said that it meant that constitutionally it belonged to each State. Now I understand him to say that it belongs to all the loyal States in the aggregate; that the people of all the loyal States rightfully control it.

Mr. HOWARD. Three fourths.

Mr. HENDRICKS. These two positions he has occupied iu the last twenty minutes. When the Senator wishes to get away from the force of the plain language of his party, understood by everybody, and wants now to do that which a year ago was declared to be by the platform improper to do, of course ho has to resort to criticism upon his own platform.

Mr. SUMNER. May I remind the Senator that a conspicuous leader of the party, who is now dead, made haste when that improvident resolution was put before the public, to denounce it as foolish and utterly untenable? I refer to Thaddeus Stevens. He said that that position taken at Chicago was foolish and untenable. He wrote a letter within a week after that was published.

Mi. HENDRICKS. Was that letter published?

Mr. SUMNER. It was published and extensively circulated. I never had any hesitation in saying the same thing.

Mr. HENDRICKS. Then I understand that Mr. Stevens, to whom the Senator refers, and the Senator from Massachusetts himself, put this construction upon this clause, that it declares the control of suffrage properly as a political question, independently of constitutional provisions, to belong to the States; and if that be the proper construction, then I say to the distinguished Senator from Massachusetts that his party now proposes to do that which it pledged to the people a year ago that it would not do.

Mr, WARNER. I should like to ask the Senator from Indiana a question. What limjt is there to the power of the people of this country to change the Constitution or the system of government?

Mr. HENDRICKS. Mr. President, that is a very grave question that is asked. I intended to ask some Senators' that question in a very few minutes. There is a particular proposition in the. Constitution of the United States that it may be amended. Where, Mr. President, does the power of amendment stop? I say the power of amendment is limited to the cosrection of defects that might appear in the practical operations of the Government; but the power of amendment does not carry with it the power to destroy one form of government and establish another. I will ask the distinguished Senator who has just propounded the question to me, whether under the form and pretext of an amendment you can change the office of the Chief Executive of this nation and make him cease to be a President and make him a king?

Mr. WARNER. I will answer the question. I think it is in the power of the people of this country to establish any system of government they see fit, to abolish the office of President, and abolish Congress and the Supreme Court and the whole form of government. I think the whole matter is in the hands of the people, and that they are sovereign.

Mr. HENDRICKS. Then I understand that answer given by the Senator to be that under the constitutional provision for amendment, under the proceeding for amendments, the Congress of the United States by a two thirds vote of each body, three fourths of the States ratifying it; may change this Government from a Republic and make it a monarchy.

We have uowa distinct proposition before us. I am not going to talk in this general way about what the people of the United States may do. They may revolutionize, perhaps; there may be a revolution, and the present Government may go down under that revolution, and a monarchy may be its result. Perhaps we are in the midst of such a revolution as that now. Perhaps we have gone very rapidly and far in that direction of revolution; but I am speaking of the power of Congress and of three fourths of the States to amend the Constitution of the United States; and now I understand it to be averred as a doctrine of the party that the President may bo displaced ana a king established in his stead.

Mr. DRAKE. I should like to inquire of the honorable Senator whether he considers that the statement of a position of that kind on the part of one Senator on this floor makes it the doctrine of the party?

Mr. HENDRICKS. Mr. President, it is an answer to a question that is propounded in the Senate; and now, if the Senator from Missouri is not satisfied with the answer that has been given by the distinguished Senator, I shall be very much obliged to him if he—and I know lie is a gentleman who expresses himself exactly—will tell the Senate just where the power of amendment stops under the provisions of the Constitution of the United States.

Mr. DRAKE. I would state that if the honorable Senator from Indiana won Id be so good as to enlighten my dull comprehension as to the importance of that question in this discussion, I will answer him with a great deal of pleasure; but now for my part I really do not see it. I do not see whether it amounts to one thingor another where the limit ofconstitutional amendment may be. We are discussing a question now of amending the Constitution in a particular which unquestionably is not subversive of the Constitution, not the case that the Senator suggested a while ago. But now, while I am up, I should like to ask the Senator from Indiana a question back. I understood him to say awhile ago that this amendment passed here by two thirds of both Houses and ratified by the Legislatures of three fourths of the States would be binding upon those three fourths and not upon the others. Was I mistaken in that?

Mr. HENDRICKS. Does the Senator attribute that opinion to me?

Mr. DRAKE. That was the way in which I understood it, and I am inquiring for information whether I misunderstood the Senator.

Mr. HENDRICKS. I beg the Senator s pardon. I did not express any such view.

Mr. DRAKE. Then, of course, I have nothing farther to say with regard to that matter.

Mr. WARNER. I answered the question of the Senator from Indiana very squarely, and I would ask him to answer my question as frankly. Where does the power of the people of this country to amend or to change their Constitution and system of Government end?

Mr. HENDRICKS. Mr. President, I wish first, before I answer the last question, to say to the Senator from Missouri that I do not think he had a right to criticise me for asking him a question, for the question was asked of me, and I answered it) and then I repeated it in a somewhat more exact form, and the answer was made by the Senator on my left. Then the Senator from Missouri interposed in the debate and became a party to the debate just there, and I thought it was entirely proper for me to seek a very satisfactory definition from him.

Mr. DRAKE. I beg to assure the Senator that I did not mean to criticise him.

Mr. HENDRICKS. Mr. President, I believe that there is a limit to the power of two thirds of Congress and of three fourths of the States to amend the Constitution of the United States. I believe that they have a right to amend the Constitution in those respects wherever defects appear in the practical operations of the Government, to make it more complete and satisfactory; but they have no power, in my judgment, so to amend the Constitution as to change the character and the nature of the Government. This ie, as was well expressed by the Senator from Tennessee this evening, notpurely a confederacy, nor is it altogether a popular Government. It is a Government of the people and at the same time a confederacy. The States, before the formation of the Federal Government, were independent States. They had the right to go into the confederacy or not to go into it as they pleased. It was not obligatory upon Pennsylvania to become a part}' to the confederacy, and if the other States had agreed to the Constitution and Pennsylvania had not agreed to it, Pennsylvania would not have been apart ofthe Government; and that was provided for in the Constitution itself, for the very last provision of the Constitution is that—

the ratification of the conventions of nine States shall bo sufficient for the establishment of this Constitution between the States so ratifying the same."

Mr. DOOLITTLE. And North Carolina and Rhode Island did not ratify for one or two years.

Mr. HENDRICKS. And until they ratified they were notparties to the Confederation. The States, as States thus coming into the Union, came in upon the basis of the Constitution itself. They surrendered up a portion of their State authority and power, and they retained a portion. I say that a Government thus formed cannot by the authority of amendment of the Constitution be so changed as entirely to depart from the spirit and the purpose of the confederation.

Mr. HOWE. I understood the Senator to say that we could not by an amendment of the Constitution change the nature or character of the Government.

Mr. HENDRICKS. Yes, the nature of the Government itself.

Mr. HOWE. I wish to ask the Senator from Indiana what amendment can be made to the Constitution that will not change the nature or character of the Government?

Mr. HENDRICKS. Why, sir, I can conceive of very many amendments. I think if the Senator will iurn to the book he will find about twelve amendments' that did not change the character of the Government. One of these amendments, to which I will refer by way of illustration in answer to the Senator, was that for the election of President and Vice President; the mode of electing the President and Vice President is different from what it was originally.

Mr. HOWE. Do I understand the Senator to affirm that that did not change the character of the Government?

Mr. HENDRICKS. I say that does not change the nature of the Government nor the character of the Government essentially It changes the mode of selecting an officer, but that is no change of the character or nature of the Government. It seems to me that that is very apparent t o a person who will take even a casual view of the subject, a very superficial view.

Mr. HOWE. Will the Senator allow me to put another question?

Mr. HENDRICKS. Not just now. Mr. President, my objection, which I now choose to state to the amendment proposed and pending before the Senate, is that it does change the nature of the Government, it does take away from the States a power which they retained and which is necessary to that independence and sovereignty of the States which the original compact contemplated they should enjoy.

Now, Mr. President, in using the term "sovereignty of the States" I do not mean that the States have control of every subject. In that sense the States are not sovereign; in that sense the Federal Government is not sovereign; but in the language of the courts the States are sovereign within the sphere of their jurisdiction or reserved powers, while the General Government is sovereign within the sphere of its jurisdiction. I think that the right to control the suffrage for the election of State officers is essential to the independence of the States, is essential to the very nature of the Government itself.

In further illustration of the question asked by the Senator from Wisconsin, I may say that the Constitution might be so amended as to regulate the suffrage in the election of Federal officers. I think that for the purpose of electing members of Congress, by an amendment of the Constitution the qualifications of the voters might be defined, and that would not change the nature of the Government; it would change, to some extent, the mode of selecting Federal officers. But when the Constitution of the United States comes to regulate the mode of selectingStateofficers, and takes away from the States the control of that question, you materially change the framework of the Government itself. I can conceive of no power so important to a State as to decide who shall be her officers and in what mode these officers shall be selected, whether by all the people or by a portion of the people. It is for her to select her own officers, to define who shall be her officers and how they shall be chosen, and if you take that power away from a government and confer it upon another government, you have materially and very essentially changed the nature of the relations between the two.

Mr. DAVIS. Will the honorable Senator permit me to read from Marshall s opinion in the case of McCulloch vs. State of Maryland?

Mr. HENDRICKS. With great pleasure.

Mr. DAVIS. "A power to create implies a power to preserve. A power to destroy, if wielded by a different hand, is hostile to and incompatible with these powers to create and preserve." "ThesovereigntyofaStatetoeverything which exists by its own authority, or is introduced by its permission.'!" That the power to destroy may defeat and render useless the power tocreate; thatthereis plain repugnance in conferring on one government a power to control the constitutions and measures of another 1

Mr. HENDRICKS. That is much more satisfactorily expressed than I was able to express it. When this Government was established thera were certain powers retained by tbe States and there were certain defined powers conferred upon the Government of the United States. In the exercise of the powers conferred upon the Government of the United States that, Government is sovereign. In the exercise of the powers retained by the States those governments are sovereign. Where a State has the power to regulate a subject and the General Government has no control over its action in that regulation, the State is completely sovereign in that regard, because she is entirely master of the subject; and where the Government of the United States regulates a subject without State interference at all, that Government is entirely sovereign over that 8ubj«ct; as sovereign as any Government can be over any subject whatever.

Now, sir, it is of the very essence of the relations between the States and the General Government that the States shall retain the control of a large class of subjects. All questions of a domestic sort, the regulation of property, the descent of estates, the courts that regulate such questions—these are exclusively within the control of the States; their regulation requires that the State shall have a Legislature, that it shall make laws; and if it make laws as an independent and sovereign State over these subjects it must have the control and selection of the aw makers And if you take away from the State the power to select the law makers you take away from the State the control of the subjects that the laws may operate upon. So when the Constitution of the United States takes away from the State the control over the subject of suffrage it takes away from the State the control of her own laws upon a subject that the Constitution of the United States intended she should be sovereign upon. But I have said more upon this question than I intended to do. Now, Mr. President, if it were the pleasure of Congress to change the Constitution upon a subject so important as this ought it not to be clear and beyond all doubt that it would result in public good? I know there are very many distinguished men in the Republican party who have recently expressed the opinion that universal suffrage would be an evil; that these colored people, just come out of a condition of slavery, were not qualified to exercise the suffrage for" the good of the public. I know that opinion was expressed by very many within a short time past.

Mr. EDMUNDS, (in his seat.) What is your opinion?

Mr. HENDRICKS. Now, sir, there has been but a short experience on the subject. If the Senator from Vermont wishes to say anything to me he can now interrupt me. Address the Chair, and then I will respond.

Mr. EDMUNDS. I wish to ask the Senator from Indiana, for information, what in his opinion, as a i real Democrat, is the true foundation of Government; whether he believes that universal suffrage is the true principle or not?

Mr. HENDRICKS. For the true foundation of government I will refer the Senator to Jefferson s writings, which I think are very satisfactory on that subject. [Laughter.]

Mr. EDMUNDS. No, Mr. President; I wish to know the opinion of my honored friend from Indiana. Jefferson is dead; my friend is not quite.

Mr. HENDRICKS. Mr. President, as I was saying, we have had but a very short experience on this question. A year ago, or a little more, suffrage was conferred upon the colored people in some of the States by Congress. Governments have been going on in those States in some way or other for this short period. I submit to Senators that the propriety of it has not been sufficiently tested to justify Congress in makingapermanent changeforall the States. A test of a year in those States of the South is not a satisfactory test. If so short a period could furnjsh a test, the success of government in those States has not been such as to justify very high hopes in that direction. I am sure no Senators will claim that society is in a more secure condition by the introduction of this element into the political power of the States. But I do not intend to discuss that question at any length. I now reach the question that is suggested by the Senator from V ermont.

I have not been satisfied, as many gentlemen of the Republican party recently were not satisfied, that it is wise to extend the suffrage to the colored people. If any State chooses to do it under the existing Constitution it is her own right to do so. I make no war upon that. That is right, because it is in the sense of the Constitution right, the State having the power to do so. But I am not satisfied, I never have been satisfied, that it is wise to make suffrage universal so as to include that race; and I think upon this subject there are some Senators in this Hall who are going to vote for this amendment who will agree with me. I will come to that directly.

I do not believe that the negro race and the white race can mingle in the exercise of political power and bring good results to society. We are of different races. Men may argue about it as much as they please; we know that in many respects there is a great difference between the races. There is a difference not only in their physical appearance and conformation, but there is a difference morally and intellectually; and I do not believe that the two races can mingle successfully in the management of government. I believe that it will bring strife and trouble to the country. That is my ootiviction upon the subject. I do notbelieve that they will add to the common intelligence of the country when we make them voters.

Some Senator this evening said that intelligence and virtue were essential to the safe exercise of the suffrage. I think that race does not now bring to the mass of the intelligence of this country an addition. I do not think it ever will. That race in its whole history has furnished no evidence of its capacity to lift i itself up. It has never laid the foundation for its own civilization. Any elevation that we find in that race is when we find it coming in contact with the white race. The influence of the white race upon the colored man has carried him up somewhat in the scale of civilization, but when dependent upon himself he has never gone upward. I am willing that that' shall be tested by the history and experience of two thousand years back. While the tendency of the white race is upward, the tendency of the colored race is downward; and I have always supposed it is because in that race the physical predominates over the moral and intellectual qualities. 1 may be mistaken in that; I will not undertake to say that that is certainly so. But I believe that the tendency of that race is downward when not supported by the intelligence of the white race.

Mr. WELCH. May I ask the Senator, are the qualities of the ^oter—which are qualifications—in the individual or in the race? Is the white villain, if there is such a character, qualified to vote, while the intelligent negro—for there are intelligent negroes—is unqualified to vote? The question is on the individuals, not on the race.

Mr. HENDRICKS. I listened to the Senator discuss the question of individual intelligence and individual virtue this evening. I am not speaking of it in that relation just now, because the amendment that is pending before the Senate is not considering the race in regard to the individuals that make it. This is a proposition to extend the suffrage to an entire race. I am speaking of that race, whether it is a wise thing to bring into the political Government of this country this race which has shown in its history an incapacity to elevate itself or to establish a civilization for itself.

Mr. WELCH. May I ask another question?

Mr. HENDRICKS. If the Senator desires it. I do not want to repeat his speech, nor do I want him to repeat his speech in a question.

Mr. WELCH. I do not desire to repeat my speech; but I will ask, as there are probably seven hundred thousand voters who are colored in the southern States, and there are probably to be found in this Union sevea hundred thousand white men who are voters and who are in no way superior in intellectual and moral qualifications, wherein have those white men a better right or better qualifications to vote than the black men? Is it their color? If so, what quality is there in color that constitutes a qualification for voting?!

Mr. HENDRICKS. Why does the Senator ask me that question? I am not talking about color. I am speaking of a race. I am speak' ing of a race whose history for two thousand years has shown that it cannot elevate itself. I am speaking of a race which in its own country is now enshrouded by the darkness of heathenism, the darkest heathenism that covers any land on earth. While the white man for two thousand years past has been going upward and onward, the negro race wherever found dependent upon himself has been going downward or standing still. Look at Africa and Europe, and I need make no argument on the subject—Europe with the advancement that she has made, with her advancement in the arts and sciences, in learning, in the development of wealth, in the comforts of the people as compared with the condition of affairs in Africa. What has this race ever produced? What invention has it ever produced of advantage to, the world? You need not say it is because of slavery, for we all know it is not. This race has not been carried down into barbarism by slavery. The influence of slavery upon this race—I will not say it is the influence of slavery—but the influence of the contact of this race with the white race has been to give it all the elevation it possesses, and independent and outside of that influence it has not become elevated anywhere in its whole history. Can you tell me of any useful invention by the race, one single invention of greater importance to the world than the club with which the warrior beats to death his neighbor? Not one. lam speaking of them in the land that is suited for their physical, moral, and intellectual development, their own land, and I am speaking of the pure African race. I am not speaking of the mixed races that border upon the Mediterranean. I am speaking of the negro race with its peculiarities known to us so well.

There are some Senators here who do not want the Chinese to vote. The Senators from Oregon and California, I think, are all opposed to the Chinese voting; and I think the Senator from Nevada [Mr. Stewart] is; and why? I believe theysaid they were pagans; but they are not such pagans as wc find in Africa. China is the original home of a civilization that the world honors to this day. Why, sir, in China they had many of the rare and useful inventions long before they were known in Europe. It is said that gunpowderwas known in China before it was in Europe.

Mr. EDMUNDS. And printing.

Mr. HENDRICKS. Yes; it is said that printing in a rude form was known there; and the compass was in use there; and one of their great writers is as immortal as the classics of Athens, with a morality that comes nearer the morality of Jesus Christ than that of any ancient writer. But these Chinese, who are capable of a very high civilization, who have sustained their own civilization, to some extent at least, if they come to our country are not to be voters. They are in the way, I suppose, of the State of Nevada and of party hopes in California; I do not know why. Are they not prepared to give as intelligent a vote as the negro? Do they not understand our form of government as well as the negro? Are they not likely to become as well informed?

But the Senator from New Jersey [Mr. FreLiNCHUYsra] puts their exclusion upon the ground of their religion, that they are pagans. Is it the business of this Government to prescribe what God or in what form men shall worship? He says that we are a Christian people. Not altogether, sir. We have no such test as that. It is not a test that obtains in any of the States now that a man shall be a Christian in order to be a voter. In the Senator s own State the Jew, a man who is not a Christian, is a voter. The Jew, who does not believe in the Saviour that the Senator and I believe in, is a voter still. You da not exclude him because he ia not a Christian; you do not exclude the infidel, who recognizes no God at all.

Mr. FBE INGHUYSEST May I ask the Senator from Indiana whether he intends to class the intelligent respectable Israelites of this country who believe in one superintending God, with the pagans and heathens of Asia, for that is the argument?

Mr. HENDRICKS. No, sir; lam not making any such argument as that. That was the Senator s argument, and I was trying to combat it. The Senator insisted that a man must be a Christian to be a voter in this country.

Mr. FRELINGHUYSEN. No.

Mr. HENDRICKS. Because we .were a Christian people, he said.

Mr. FRELINGHUYSEN. My insistment was this; not that a man must be a Christian to be a voter, but that it was not our duty to extend the rights of naturalization and citizenship to a pagan and heathenish class.

Mr. HENDRICKS, The Senator added, "Because we are a Christian as well as a free people." I think that was the Senator s expression. So that the argument was that none but Christians ought to vote, and I was carrying out the Senator s own argument. Sir, I am in favor of men voting in this country who belong to the white race, and conduct themselves properly.

Mr. STEWART. I should like to ask the Senator if he is in favor of naturalizing Chinese and pagans who acknowledge no allegiance to the Government ofthe United States?

Mr. HENDRICKS. That is a very remarkable question. Of course I am in favor of naturalizing uo such man as that; and anybody who is naturalized under our law must abjure all allegiance to any other Government, and iu the most formal manner possible recognize the authority of our Government. The Senator is not in favor, I believe, of allowing the Chinese to vote, while he is in favor of allowing the negro to vote; and I am speaking of the position occupied by the Senators from the Pacific coast upon this particular question. It does not suit them to have the Chinese vote, for some reason or other. I guess it is not popular out there to have the Chinese vote, and they are opposed to it. I would not wish to force the Chinese vote upon the people of the Pacific coast unless they wanted it themselves; andif I desired to amend the Constitution so as to force the Chinaman t o vote in California, I would say," Let the people of California have a chance to express their wish on that subjectand if they voted it down I would not attempt to force it upon them. They are the best judges of the interests of their society and that which will contribute to the strength and purity of their State goveriiment. And the same is true in Indiana. But Nevada, with her twenty five thousand people, has just as large a vote upon the adoption of this constitutional amendment as Indiana with her fifteen hundred thousand. But Nevada does not want the Chinaman, and she does want the colored man to vote. She has no colored people, but she has Chinamen. L That is th« style of this controversy. It suits certain purposes that the suffrage should be extended to the negro; it does not suit for other purposes that it should be extended to other races.

Mr. STEWART. By what authority does the Senator, say that Nevada has twenty five thousand people?

Mr. HENDRICKS. I supposed there were that many in Nevada. [Laughter.] I did not say that they were all firmly located. [Laughter, j It may be a changing population somewhat; still I think there are that many there. ilr. I resident, I have said more upon this subject than I intended to do, and I will not occupy the attention of the Senate further.

L 9 r President, we have just heard from my distinguished colleague, we heard it this evening from the Senator from Kentucky, [Mr. Davis,] and this afternoon from the Senator from Delaware, [Mr. Saulsbury,] the argument against this constitutional amendment that the Ahican is an inferior race, incapable of development, and a race that never invented anything. Suppose we admit this statement to be true; suppose we confess this argument in its length and breadth; I ask if it is an argument against this amendment or in its favor?

It is admitted by all these Senators at the same time that the negro is a kindly race; it is not a savage race; and it is a Christian race in this country, as much so as the white people; but they say that they are of inferior intellectual power, not capable of the same development and progress as the whites. Suppose we grant all this; I ask if it is not a reason why these men should have the ballot put into thenhands by which they may protect and take care of themselves? The strong can protect, themseves; the weak require to be furnished with the means of protection. In this country there is no protection for political and civil rights outside of the ballot. If men have a natural right to life, liberty, and the pursuit of happiness, they have a natural right to the use of the means by which life, liberty, and the pursuit of happiness can be enjoyed. Sir, the argument is against these Senators. If we admit the inferiority of this race, which I am not now prepared to do, surelyitis a reason why we should give to that raeethe ballot, by which it can protect itself from the powerful and from the majority.

We are told, as an evidence of the inferiority ofthe race, that they have never invented anything. My colleague would seem to wish to establish a new test or qualification of suffrage, that no man shall be allowed to vote who has not invented something. I wonder how many inventors there are here in this body to night Sir, all these illustrations that have been given of the inferiority of this race are foreign to the question; they are, in fact, begging the question; for admitting them all to be "true, the argument comes with ever increasing force that we ought to give to this weaker, this interior race, the means of self protection

Now, sir, 1 wish to call the attention of the Senate for one moment to the character of the whole train of argument that has been offered against this amendment. Take that of the Senator from Kentucky, the Senator from Delaware, and other Senators that I might refer to. I say that the whole train of argument is based upon those broad doctrines and those old theories upon which the right of secession rested. We were not told by the Senator from Kentucky and the Senator from Delaware that they believed in the right of secession, but they advocated the same theories, urged the same arguments, and cited the same history upon which the right of secession has been based for the last twenty years.

Mr. SAULSBURY. Will the honorable Senator allow me to ask him a question?

Mr. MORTON. Yes, sir.

Mr. SAULSBURY. I ask whether the historical references that I made were not true references; and whether the facts m relation to the formation of the Federal Constitution are not evidenced by the records of the Convention which framed it?

Mr. MORTON. Mr. President, I might admit the Senator s references, but I should deny his deductions. The Senator told us today frankly that we were not one people. He said in the Senate of the United States, after the culmination of a war that cost this nation six hundred thousand lives, that we were not a nation. He gave us to understand that we were as many separate nationalities as we have States; that one State is different from another as one nation in Europe is different from another. He denied expressly that we were a nation. He gave us to understand that he belonged to the tribe of the Delawares, an indepeildentand sovereign tribe living on a reservation up here near the city of Philadelphia, (laughter, but he denied his American nationality, The whole argument from first to last has proceeded upon that idea, that this is a mere confederacy of States; to use the language of the Senator to day a partnership of States. What is the deduction? If that is true there was the right of secession; the South was right and wo were wrong. He did not draw that deduction, but it is one that springs inevitably from his premises.

Sir, the heresy of secession is not dead-; it lives. It lives after this war, although it ought to have been settled by the war. It exists even as snow sometimes exists in the lap of summer when it is concealed behind the cliffs and the hedges and in the clefts of the rocks. It has come forth during this debate. We have heard the very premises, the very arguments, the very historical references upon which the right of secession was urged for thirty years. The whole fallacy lies in denying our nationality. I assert that we are one people and not thirtyseven different peoples; that we are one nation, and as such we have provided for ourselves a national Constitution, and that Constitution has provided the way by which it may be amended.

Now, sir, what shall be the extent of that amendment? Does the Constitution say how far or to what extent you shall amend it? N ot a word of it; but it provides for its amendment, and that amendment may be as radical and as far going as any part ofthe original instrument. Can that be denied? The States gave up, it is said, the right to coin money, the right to make war, the right to regulate commerce; and if they gave up those powers they have a right to give up, according to the mode prescribed by the Constitution, the power to regulate suffrage. It may be said that under this form of amendment we would not have the right to change the character of our Government from a Republic to a monarchy. That is an extreme case. But. sir, we are not changing the character of our republican government. It is still the same iu form, though modified, when we say that the States shall be limited in their power to regulate the suffrage.

One word, sir, in regard to what has been said about the sentiment of Republicans in reference to admitting colored men to the elective franchise. There were doubts in the minds of many of us about admitting six hundred thousand men, fresh from slavery, to the exercise o( suffrage. There were many of us who doubted the effect of that, and would have avoided it if it. could have been done, and given these men a short time to prepare themselves for the exercise of that right. But, as circumstances progressed, as history moved on, we could not give them that time; we were compelled to try the experiment immediately; and thus far it has worked well. But, sir, the great body of the men upon whom the right of suffrage is to be conferred by this amendment are men who have long been free, who live in the northern States—not men just emerged from slavery, but a comparatively educated class living throughout the entire North. The argument that might be made against enfranchising men just emerging from slavery cannot be made against the colored men of Indiana, of New York, and of the entire North.

Mr. President, much has been said to day and to night in regard to the inconsistent posi tion of the Republican party, and a clause has been read from the Chicago platform in support of that charge. I think my colleague gave that portion of the platform the right construction iu one respect. It did mean to say, and was so understood, that so far as suffrage in the loyal States, in the States that had not been iii the rebellion, was concerned, it properly belonged to the people of those States— not to the people of the loyal States in the aggregate, but to the people of each loyal State. And, sir, so it does in mv judgment under the present Constitution. That clause was put into the platform not with reference to an amendment of the Constitution, not estopping the party from amendingthe Constitution; but with reference to an understanding throughout the country that Congress might attempt to regulate the subject of suffrage in the States. It was with reference to congressional regulation that that clause was put, in the platform, but it was not declared directly or by implication that we should not amend the Constitution so as to limit the States in the exercise of that power.

Mr. President, the Republican party has its errors; it has committed its faults; and yet but for that party this Capitol would now be the Capitol of a hostile slaveholding confederacy. But for the Republican party my distinguished colleague would not be a member of this body, not that the Republican party elected him to this body, but that the Republican party has preserved the Government to which he was elected a Senator. Sir, the Republican party has saved this nation, and with all its errors, with all its inconsistencies, if it has them, it still deserves the gratitude of the nation as no other party ever did.

One word in regard to the so called Democratic party. The Democratic party for more than twenty years has lived upon the negro question. It has been its daily food, and if the negro question shall now be withdrawn from politics the Democracy, as a party, will literally starve to death. We need not, therefore, be surprised to find them resisting this constitutional amendment which will forever withdraw the subject from politics, and will strike down that prejudice to which the Democratic party has appealed for years. TheDemocratic party has not for years appealed to the reason of the people, but it has appealed to their prejudices upon the subject of race. It has sought, and, to some extent obtained, power upon that subject. It is still following the fortunes of slavery after slavery is dead. It cherished slavery while it lived, and now that slavery is dead it has taken to its embrace its odious and putrescent corpse. The Democratic party is now performing the office of Old Mortality by trying to revive inscriptions upon the moldering and dishonored tomb of slavery.

Mr. President, can you tell me what act the Democratic party has performed for twenty years that has been for the good of this country, and that can be pointed to now as creditable, that can be pointed to with pride and exultation? I ask for a single measure of policy in the last twenty years. In 1854 it repealed the Missouri compromise. That was a breach of national faith—the greatest legislative crime in history—that rocked this nation to its foundation, and was the beginning of the war. In 1856 it elected James Buchanan President of the United States. That was a necessary and inevitable link iu the chain of the rebellion. It was in his Cabinet that the plot of the rebellion was hatched; and it was James Buchanan, in his annual message in December, 1860, when the rebellion was just developing, who gave it assurance of safe conduct, by proclaiming to the world that the Government had no power to coerce a State to remain in the Union. The Democratic party in 1857 cajoled the Supreme Court into the Dred Scott decision, a decision that shocked the moral and judicial sense of mankind. From that time until 1860 it continually stimulated alternately the hatred and the fears of the southern people. They were constantly assured that if the Republican party came into power, it would take away the liberties and the constitutional rights of the South. Everything was done to make the people of the South distrustand hate the people of the North. After the election in I8G0, I ask if the people of the South were not encouraged to go forward in the work of rebellion, by being constantly assured that the Democracy of the North would hold the Government still while the work of secession was consummated? .After the war began did it not oppose every measure that looked to the suppression of the rebellion? Did it not oppose the raising of armies? Did it not oppose the borrowing of money to carry on the war? Did it not oppose conscription? And when it became apparent, in 1862, that we could not put down the rebellion without first putting down slavery, I ask if the whole power of the Democratic party, in Congress and out of Congress, was not exerted for the purpose of preserving the life of slavery? Undoubtedly it was; and when, at the close of 1802, it became apparent to all the people of the South that they could not succeed in their rebellion, were they not encouraged by the Democratic party to persevere, by the assurance that a revolution in public opinion was going on in the North that would place the Democratic party in power, who would end the war, and concede to them their independence?

Mr. President, the Republican party put down the rebellion in spite of the Democratic party; it destroyed slavery in spite of the Democratic party; it preserved the Union in spite of the Democratic party. After the war was over, and when the great work of reconstruction came before the American people, a mighty work, that we knew not how or where to begin, was not the influence of the Democratic party exerted to prevent it and to continue the chaos and the desolation that existed in the South? But, sir, we went forward. That work of reconstruction is now almostcompleted. We expect soon to bring it to a successful conclusion. We went forward, and in defiance of the Democratic party we amended the Constitution; we declared that all persons born in the United States were citizens of theUnited States; we declared that wherever a race or class of men were disfranchised they should not be counted in the basis of representation; we declared that perjured rebels should not be eligible to office; we declared that the national debt should not be repudiated and the rebel debt should not be assumed. All this we did in defiance of the Democratic party. And now, sir, in defiance of that party we are about to plant in the Constitution the great principle of impartial suffrage.

Mr. DOOLITTLE. Mr. President, the Senator from Indiana, [Mr. Mortox,] with his usual force and ability, has given us on this occasion his view of the pending question, and his view of the history of the past. In some of that I agree with him; in some of it, I disagree with him altogether. The Senator from Indiana seems to think that no statesman can bear in mind two ideas at the same time; that there can be no such thing as State rights maintained by anybody under the Constitution unless that person is a secessionist; and that, on the other hand, no man can maintain that there is any such thing as rights in the Federal Government under the Constitution without being in favor of an absolute concentrated Government at Washington. Sir, these two ideas must go together in our system of government, and the time is coming when they must be discussed, when the rights of the States under the Constitution must be acknowledged. It is just as much a war on the Constitution to deny the States the rights which belong to them as it is a war on the Constitution to maintain the doctrine of secession.

Mr. MORTON. I have never denied the doctrine of State rights—never.

Mr. DOOLITTLE. The honorable Senator then admits that the States have rights under the Constitution?

Mr. MORTON. I have always denied State sovereignty; and I do now. I deny the doctrine that the States are separate and independent nations. We are one people. But, sir, the States have certain rights, rights that are guarantied to them by the Constitution of the United States, just as we have rights secured to us both by the Federal and State Constitutions. We have State rights, but have no State sovereignty, and never had.

Mr. DOOLITTLE. Mr. President, the honorable Senator says there is no State sovereignty. I contend that by every decision of the Supreme Court of the United States, by every declaration made by every writer upon our system of government in the beginning, whether a Federalist or Republican, it was always maintained that the States had an attribute of sovereignty, not. absolute, but tinder the Constitution, because under the Constitution they have parted with their absolute sovereignty; nor has the United States Government any sovereignty under the Constitution which is absolute. All the power which the United States Goverment has under the Constitution is limited. Sovereignty is limited .by the Constitution. State sovereignty is limited by the Constitution; the United States sovereignty is limited by the Constitution; and the great difficulty of our times is that men cannot think or will not think that the two sovereignties exist at the same time under our Government, the one limited by the other.

Why, Mr. President, from earliest childhood every man iu this body has been taught that we live in the solar system where the planets that revolve around the sun are controlled by two forces; one a force tending toward the center by the force of gravitation, the centripetal force; and the other is the centrifugal force, by which they are driven in their orbits around the center. Mr. President, if either one of these forces were taken away it would absolutely destroy the system. In our solar system, if the centrifugal force are taken away and nothing but the centripetal force left to act, every planet would be drawn to the center to the sun. On the other hand, if the centripetal force were destroyed in our solar system, and no force permitted to operate but the centrifugal force, all the planets would be driven in a tangent away from our system into illimitable space. Sir, it is the operation of these two forces, the one which tends to the center, the other which tends to the circumference, which keeps these planets moving in their orbits, which maintains our system, which keeps it from destruction; and the destruction of either of these forces is the destruction of the solar system.

Now, sir, come to our system of government; these two forces are planted in it of necessity. These two ideas have been here from the beginning. There have been men who represented the one and represented the other from the beginning. There have been men who have contended always for the absolute sovereignty of this central Government, and other men who have contended always for the absolute sovereignty of the States; and both of them have contended for a falsehood from the beginning. There is no absolute sovereignty in this Government; nor is there any absolute sovereignty in the States; but under the operation of our system devised by our fathers, wise as if it had been inspired from on high and as if they had wisdom almost like Him who created the solar system under which we live, these two grand ideas, two great forces in government, were put in operation at one and the same time, each limiting the other, each operating upon the other, both working together, and working out that harmonious system in which alone we live and move and have our being; and that man or statesman, call himself what he may, whether a fire eating secessionist of the South who comes into this body or elsewhere and maintains the absolute sovereignty of the State, with its right to withdraw from the Union, to retire from the system, to overturn the Government; or that other statesman, Republican though he may call himself, who comes into this body or elsewhere and maintains that this Government only has absolute sovereignty, and that it has the power to seize to itself ail the powers of the Government—whichever one of these men undertakes to do this is making war on the Government and war on the system under which we live.

Mr. President, it is in these two ideas, limited by each other, controlled by each other, that we alone can maintain our system of government. W e must maintain the rights of the States under the Constitution. We must love to maintain the rights of the States. We must maintain the rights of the Federal Government. And, while we put down rebellion, put down secession when it undertakes under the doctrine of State rights run mad to destroy the Government, to break up the system, if the time ever comes that in this body, from any quarter, East or West or North or South, any party stands forward to determine that this is the Government and here is all power, and that in Congress are to be vested all the powers of government, that party will be equally at war With the system. Both must be resisted; the doctrine must be overcome; and 1 tell the Senator from Indiana that the doctrine of unqualified centralization of power in this Government is just as dangerous as the doctrine of secession. Both of them are at war with the Constitution. I have fought them both whenever they have appeared in this body, wherever I could get at them, and I expect to do it while I live. I said, Mr. President, that I agreed with the honorable Senator in some things which he has stated as, to the history of the past. I acted with the Democratic party until 1851, when the Missouri compromise was repealed. When they repealed the Missouri compromise they broke their faith to the country which was pledged in 1852 upon the election of Franklin Pierce as President, because it was pledged in their platform that they would not disturb the •slavery question which was settled in 1850. In violation of. that pledge they did repeal the Missouri Compromise and opened the slavery agitation, followed as it was by tBfc border rul fian invasion of Kansas which subjugated that Territory, elected a Legislature at the point of the bayonet, forced slavery on that Territory against their will. Because the Democratic party did these things I, for one, was severed J nim them. The Senator from Indiana was severed from them for the same reason. And that party was overwhelmed for its violation of the faith which it had given, for the violation of the pledge which the country had received in the establishment of the Missouri compromise. And, Republican Senators, let me say to you, you have violated your faith to the country, in my judgment, by the very declaration which you made in the platform last summer. The honorable Senator from Massachusetts [Mr. SuMNEit] does not hesitate l frankly to avow that that resolution in the platform was a double-faced resolution. It looked to the South and said," We have determined to force negro suffrage upon you but it dared not say to the people of the North, "We intend to force it upon you;" and it said to them, It properly belongs to you; we cannot properly take it away from you." And now you are proposing to do it. 1 know the honorable Senator from Michigan [Mr. Howard] said that the true construction of the platlorm was that it properly belongs to the people of the loyal States to say whether negro suffrage shall exist in those States or not. That must mean one of two things; either that each State must determine it for itself, or that all the loyal States are to determine the question for themselves. It cannot mean the latter, because by your constitutional amendment if all the loyal States of the North should unite in voting for it that would not determine the question. No, sir; the fair intendment of that language as you used it in your platform was this: that each State should for itself have the right to determine the question, and that it should not be taken from the people of the loyal States against their will. That is the fair intendment of it.

But, Mr. President, without going into a detailed history, as the honorable Senator has— for i shall not follow him—what has occurred since theolose of the war? In my judgment, iu many of the acts which have been entered upon, the Constitution of the United States has itself been violated.' I believe, as much as I believe in my existence here, that in the law which waspassed establishing military tribunals and military government in the States of the South, abolishing all civil government, denying all right of trial by jury, this party in power m the Congress of the United States have justas much violated the Constitution in that regard as it ever was violated by any party in the history of the Government; and I believe,- also, that in the trial case of McCardle, which came before the Supreme Court, if a decision had been rendered, instead of the jurisdiction of the court being taken away by act of Congress the court would have decided by a large majority that, your acts of reconstruction, so far as they established this military authority in the States of the South, were unconstitutional and void.

Mr. DRAKE. Will the honorable Senator allow me to say a word here at this poidt?

Mr. DOOLITTLE. Mr. President, I was holding an argument rather with the Senator from Indiana.

Mr. DRAKE. I would inquire of the honorable Senator from Wisconsin whether if that Supreme Court had given such a decision as he has just spoken of it would have been of any force whatever as against an act of Congress passed for the reconstruction of those States?

Mr. DOOLITTLE. Mr. President, I believe that if the Supreme Court had held in the case of McCardle on the habeas corpus, which brought it before them, that your military reconstruction law was unconstitutional, McCardle would have been discharged from imprisonment and arrest, and that decision would have been sustained by all the departments of the Government. There would have been complaint about it in Congress undoubtedly, but if the court bad decided the case its decision would have been acquiesced in.

I believe another thing, and I may as well speak my mind freely about it. I believe that if Chief Justice Chase had not hesitated to deliver the opinion which the court were ready to pronounce, as all the world understands—if he had joined in that opinion, as I have no doubt he would—he would have been nominated at the city of New York last summer for President; and another thing I believe, he would have been elected, just as certain as he isaliving man. But he failed to make the decision; he hesitated; he let Congress steal his jurisdiction away. It was too late. The gentleman havingalluded to that subject, I have expressed my opinion. Of course 1 do not speak from authority; but an opinion is an opinion.

Mr. WILSON. Ilaveyougotalmostthrough?

Mr. DOOLITLLE. Do you want to adjourn?

Mr. WILSON. I want to make an arrangement about to morrow when you get through.

Mr. DOOLITTLE. If you want to make any arrangement about the meeting to morrow I shall make no objection.[" Go on

The PRESIDENT pro tempore. The Senator from Wisconsin has the floor.

Mr. HOWARD. We want to hear the rest of that history.

Mr. DOOLITTLE. That was an opinion, not history. [Laughter.]

Mr. DRAKE. The reason of my putting the question I did a moment ago to the honorable Senator from Wisconsin was to signify to him and to others that whatever might be his opinion as to the right of the Supreme Court of the United States under any circumstances whatever to declare an act of Congress unconstitutional, there is one Senator on this floor at least, if there is no other, who utterly denies the possession under the Constitution of any such right by that tribunal or any other tribunal of a judicial character in this country; atid that Senator is myself.•

Mr. DOOLITl LE I admit that the Senator from Missouri has been through revolution once, and he is considerable of a revolutionist; and that probably is his opinion; but the great mass of the people, especially in the loyal States, have not been so much through revolution yet but that they would be disposed to acquiesce in the decision of the Supreme Court in a case actually brought before it. That is my answer to the Senator from Missouri.

Mr. President, I should not have been drawn into any remarks oil this occasion had it not been for the speech of the honorable Senator from Indiana, [Mr. Morrow, and particularly that portion, of his speech where he seems to claim that every man who maintains that the States have rights under the Constitution and ought to have rights under the Constitution is only repeating the arguments of secessionists. Sir, .what I claim is the rights of the States under the Constitution, not outside of the Constitution. I claim their rights under the Constitution .which it guaranties to those States, not a right to secede, not a right to nullify, not a right to breakup the Government, but aright to live in the Government and enjoy under the Constitution the rights which it secures. That is a very different thing from the doctrine of secession; while at the same time I maintain the rights of this Government, and the power of this Government to put down rebellion, to prevent a State from withdrawing itself from the Union, because it is in violation of the Constitution; it is no right of a State; it is utterly wrong, indefensible, unjustifiable, unconstitutional.

Mr. President, I maintain that it is just as necessary for us to insist upon the rights of the States as upon the rights of the Federal Government. The time is coming, in my judgment, when the people of the States will be aroused to this question. The danger is that while we have been exerting all the powers of this Government, great and gigantic as they are, to put down the secession of States, not in the exercise of rights, but in the exercise of wrongs; attempting to exercise powers which they have not, and cannot have, under the Constitution, our people are becoming accustomed to look upon the exercise of these great powers by this Government with indifference. Now that the war is over and peace has come, what I desire is a restoration of our system of government as it was understood in the beginning, as it was formed upon the two ideas of the rights of the States and the rights of the Federal Government, each limiting the other, controlling the other, to some extent, that by the joint operation of the two forces the system may be made complete.

Now, Mr. President, without dwelling longer to night—I may have something more to say on these various amendments before the discussion comes to a close—I shall yield the floor for the present to any gentleman in favor of this amendment who desires to make a speech.

Mr. DRAKE. Mr. President, the Senator from Wisconsin laid great stress upon the idea that we were forcing this amendment upon the people of the North, notwithstanding the declaration made by our convention at Chicago last summer; and yet that honorable Senator knows as well as he knows anything that no action taken in this Capitol can force a constitutional amendment upon the people of the North. It never can be forced upon them by any power outside of themselves. They are to pass upon the amendment as we propose it, and if it becomes a part of the Constitution of the country then it is by their own act and their own consent that it is done; so that we are not forcing this matter upon the people of the North; we are only forcing upon them the decision of the question by their own voice.

Mr. President, the whole argument of that gentleman and of all the other Senators on the other side who have spoken on this subject, proceeds upon the doctrine that George H. Pendleton laid down in 1864, that if every State in this Union should unite in ratifying the constitutional amendmentabolishingslavey except one slavery would not be abolished iu that one State. That is just exactly the dock ins They limit the power of amendment in the Constitution in that way.

Mr. DOOLITTLE. The Senator will allow me to interrupt him. I hope the honorable Senator does not mean to include me in that category from anythingl have said. I believe that I made the first speech in this body iu favor of the amendment abolishing slavery.

Mr. DRAKE. I say, Mr. President, that the whole doctrine of the opponents of this measure in this debate has been to the purport that, let any number ofStates ratify this amendment, it would have no binding force upon the other States, but only upon those States that ratify it. That is the extent to which their doctrine goes, and it is, in effect, just the doctrine that George H. Pendleton laid down in 1864 with regard to the amendment on the subject of slavery, and it is a corollary from the other doctrines announced upon the floor of the Senate in regard to the thirteenth and fourteenth amendments of the Constitution, openly declared here by Democratic Senators to be utterly null and void, and no amendments to the Constitution whatever.

Now, sir, the honorable Senator from Indiana [Mr. Hendricks] seemed to be concerned this evening as to the limit of the power of amendment of the Constitution, without drawing a distinction between that which is an amendment of the Constitution and that which is a revolution to overthrow it. I have simply to say that so far as amendment is concerned there is 110 limit. You cannot find a word in the Constitution which makes a limit upon the right of the people to amend it, except in that article which declared that" no amendment which may be made prior to 1808 shall in any manner affect the first and fourth clauses of the ninth section of the first article."

Mr. EDMUNDS. And the equal representation of States in the Senate.

Mr. DRAKE. No, sir; excuse me. The language does not apply there at all, as I have 'had occasion to show here before. But there was the only limitation on the power of amendment contained in the Constitution, and it was alimitation in favor of the importation of slaves from the coast of Africa to this continent.

Mr. BUCKALEW. May I ask the Senator whether by an amendment submitted by Congress you could take away the senatorial representation of any State?

Mr. DRAKE. Not without its consent. The Constitution expressly forbids it. It does not say that you shall not take it away by an amendment, but simply sets out the broad, distinct proposition that "no State shall without its consent be deprived of its equal suffrage in the Senate." Now, sir, the only shackle that the people of the United States put upon the power of amendment was that which was to go to perpetuate slavery ia this country and to keep up the African slave trade and so now, after the lapse of eighty years, comes up the response from the same spirit, that there is no power in the Constitution to make an amendment which shall give the right of suffrage to that long enslaved race. The spirit in the two cases is the same, that which would have consigned them to eternal slavery and that which would now prevent their being lifted into the condition of enfranchised citizens.

Mr. President, gentlemen here talk about the rights of the States. What right has any State in this Union but that which it gets from the Constitution? Go over it, examine it from the beginning to the end, examine it in the light of history, examine it with the severest logic. I say to these gentlemen who talk so about the rights of States, that there is not a State in this Union that has one single right but that which it derives from the Constitution. Every single right that the States may have had before, they threw into the great mass which went to make up the powers of this Union, and just so much as the nation saw fit to give them they have, and not an atom more. And when you talk about the rights of States, it matters not what the extent of them is, how great or how little, certain it is that in that instrument they all lie and are all there granted or conceded; and there is not one right except that of equal senatorial representation which cannot be taken away from any State by a constitutional amendment passed by two thirds of Congress and ratified by three fourths of the States.

But, Mr. President, I do not propose to continue this discussion. The few minutes that I have now occupied are sufficient to express what I desired to express except one other

40th Gong. 3d Sess —No 63. thing drawn out by the remarks of the honorble Senator from Wisconsin; and that is upon the assumed right of the Supreme Court of the United States to declare an act of Congress unconstitutional and void. I take leave to say to that gentleman that whenever the proper time comes I shall take the position here, and maintain it, too, that there does not abide in that court one particle of right to make any such declaration with regard to any act of Congress.

Mr. EDMUNDS. Not even involving civil rights?

Mr. DRAKE. Not involving any right. The people of the United States did not establish a Government of three departments which were to cross each other s track it that way and destroy each other. The law of parallelism was laid down to all three of them. They were to run in parallel lines, never to cross each other; but I am not going into that discussion now. I wish to meet right here at the threshold the first declaration that I have heard yet made by a Senator on this floor recognizing the right of the Supreme Court to declare any act of Congress unconstitutional, with a complete denial of that right, and with a challenge to any man to find that right granted in the Constitution to that tribunal.

Mr. HENDRICKS. Will the Senator from Missouri allow me to ask him a question?

Mr. DRAKE. Yes, sir.

Mr. HENDRICKS. Suppose that between two citizens there is a controversy in regard to property; the claim of the one citizen is based upon a provision of the Constitution of the United States, and the claim of another citizen is based upon a law of Congress. The two are inconsistent. If the law be sustained the one man gains his case; if the Constitution, on the other hand, be sustained, the other man carries the case, and that cause comes to the Supreme Court of the United States. Which shall govern, the provision of the Constitution or the law? Which party ought to gain the case?

Mr. DRAKE. In the first place, in answer to the honorable Senator I will say that he supposes an impossible case. The honorable Senator cannot lind in the Statutes at Large of the United States one single act of this Congress which in its plain and palpable terms enacted a thing which was in violation of the Constitution.

"Mr. HENDRICKS. That is not the question.

Mr. DRAKE. Yes, it is, sir; because unless you do find that in a law which is in plain and palpable violation of the Constitution the matter of whether it is a violation of the Constitution is a matter of construction and deduction, and the moment you come to the question of construction and deduction, then I say that a judgment has been entered in the Halls of the Congress of the nation higher than any judgment which any court of the United Slates or of any State can render.

Mr. DOOLITTLE. Do I understand the honorable Senator to say that the opinion of Congress is supreme on all these constitutional questions?

Mr. DRAKE. I mean to say, and in due time whenever the opportunity offers I will say it at length and make it good, that there never is passed an act by the two Houses of the Congress of the United States—and it is a position I took here in the first prepared speech I delivered in this Chamber, in December, 1807— that there never is an act passed by the two Houses of Congress that they do not by the act of passing it enter in the records and archives of the nation a solemn judgment that that act is in accordance with the Constitution of the United States.

Mr. EDMUNDS. Suppose it is not in point of fact?

Mr. DRAKE. Suppose it is not in point of fact, who is to decide it? Not the courts.

Mr. EDMUNDS. Who then?

Mr. DRAKE. The people, sir, are to decide it.

Mr. EDMUNDS. Revolution!

Mr. DRAKE. No, sir. Thejadicialpqwer does not contain political power, and no power exists to unmake a law by declaring it invalid but the power that made it. These points I touch upon merely. When the proper Occasion arises I shall draw the points out in their fullness, and then we shall see hdw the matter stands.

Mr. DOOLITTLE. I understand the honorable Senator from Missouri simply to say that Congress can do no wrong.

Mr. DRAKE. No, sir. The Senator from Missouri does not say any such thing. But the Senator from Missouri does say that a body containing some three hundred men, many of them the picked men of the nation, illustrious many of them, far better lawyers, many of them, than are on the bench of your Supreme Court, are quite as competent to judge in a matter of construction and deduction of constitutionality as four or five gentlemen sitting in another room in this Capitol who were never set to be guardians over the judgment of Congress.

Mr. EDMUNDS. Will the Senator permit me to ask him a question?

Mr. DRAKE. Does my friend from Vermont ask it with a view to information, or does he ask it with a view to prolong this debate?

Mr. EDMUNDS. I should say, Mr. President, both because I wish information and I am very glad to have my friend go 011. I wish to put an inquiry to my friend, with a view to get his idea in all sincerity. Suppose Congress should pass a law which should declare that the Supreme Court of the United States and the circuit and district courts of the United States should have no jurisdiction of controversies arising between citizens of different States, and, in spite of that law, a citizen of the State of Missouri should sue a citizen of the State of Vermont in the circuit court of the United States for the district of Vermont, "would my friend maintain that it would be the duty of the judge presiding in that circuit to dismiss that, suit in spite of the Constitution?

Mr. DRAKE. That is the same description of question put to me by the Senator from Indiana.

Mr. EDMUNDS. Very good. Answer mine.

Mr. DRAKE. It is supposing an impossibility. I will not answer a question of that kind, Mr. President, for the simple reason that it supposes that which is impossible.

Mr. DOOLITTLE. I will suppose a case which the honorable Senator, I think, will not say is an impossibility. I will suppose a case that arose from the State of Missouri, of the priest who refused to take the oath prescribed by the Missouri constitution. He brought his ease to the Supreme Court, who decided that oath was a nullity; that you could not administer to a minister of the Gospel an oath as long as your arm containing some eighty different questions which must be sworn to by him before he could be entitled to preach the Gospel. I wish to ask the honorable Senator whether in his opinion the decision of the Supreme Court on that subject is or is not binding?

Mr. DRAKE. Well, sir, I must confess that I admire the wonderful facility that the honorable Senator from Wisconsin has in changing the point of a question. I am talking about the right of the Supreme Court of the United States to declare an act of Congress unconstitutional, and now he comes here with a question about the power of the Supreme Court to declare a provision in a State constitution unconstitutional. What has that to do with it?

Mr. WHYTE. Will the Senator from Missouri, allow me to ask him a question?

Mr. DRAKE. Certainly.

Mr. WHYTE. Congress passed an act known as the legal tender act some years ago, the constitutionality ®f which is now pending before the Supreme Court of the United States. May I ask the Senator whether the decision of the Supreme Court in that ease ought to be respected if it should decide that law to be unconstitutional?

Mr., DRAKE. I answer without hesitation, not at all, sir. I stand to my position, and the Senate of the United States and the House of Representatives of the United States have both got to come to It some time or other, or else probably submit tQ have their powers and energies crippled by the decisions of that court or some other United States court!

Mr. WHY TE I ask my friend from Missouri how he will explain that section of the Constitution section two, article three, which The judicial power shall extend to all cases in law, and equity arising under this Constitution, the laws of the united States, and treaties made or which shall be made under their authority."

Mr. DRAKE. I have no explanation to give about it now, "except simply to deny that the judicial power of that court contains and includes political power. I deny that the right to 'invalidate a law, to cripple it, to sweep it off the statute book is or can be under any circumstances a judicial power. It is apolitical power. At some future time, if opportunity offer, I will, as I said before, present my views at length on this whole subject.

Mr. PATTERSON, of New Hampshire. I want to know if the gentleman will allow me to- ask him a question. I want to know if he will give way to a motion to adjourn.

Mt. DRAKE. I understood this matter was to be closed out to night I am anxious to hear the crow of that cock that the honorable Senator from Kentucky [Mr. Davis] spoke about as likely to be heard before we get through with this matter.

Mr. DAVIS. Mr. President, will the honerable Senator——

The PRESIDENT pro tempore. The Senator from Missouri has the floor.

Mr. DAVIS. The honorable Senator having referred to me, will he allow mo to read a passage from the opinion of Chief Justice Marshall in the case ol McCulloch vs. State of Maryland?

Mr. DRAKE. Sir, I am quite familiar with that, I think.

Mr. DAVIS. I should like to put it in the Senator s speech.

Mr. DRAKE. Is that the cock crowing that the honorable Senator wants us to hear? [Laughter.] But, Mr. President, I had no idea when I got up to say a few words here that I was to occupy so much time as this. I had no intention of doing it.

Mr. DAVIS. I think I have heard the cock Crow. I think the honorable Senator is the game cock from Missouri. [Laughter.]

Mi'. DRAKE. I thought 1 was only adrako, sir. [Laughter.] But certain it is, Sir. President, that it when I reach the venerable years of the distinguished Senator from Kentucky 1 shall be as game a cock as he is, I can cry cocka doodle doo at any time of the night. [Laughter.! But, Mr. President, I do not intend to continue this discussion.

Mr. DAVIS. Mr. President, let me read tbe passage. I can 'show the honorable Senator to morrow four acts of Congress that have been declared by the Supreme Court to be unconstitutional in their judgment. I will read the passage to which I referred my honorable friend m this opinion of Chief Justice Marshall in the case of McCulloch vs. Maryland: i w re i s necessity less apparent, none can deny its being an appropriate measure

That is, the Bank of the United States— and if it is, the degree of its necessity, as has been very justly ooserved. is to be discussed in another ?i,..**"" Should Congress, in 1 nofits powers, adopt measures which are JinH iVtho ^y the Constitution or should Congiess, lor ih« ™tr\ ot e3£cJHtmg its Powers, pass laws a vcmmm?'! eini ?f objects no t intrusted to the this tSnal become the painful duty of como before U fias? r®««lrlnS such a, decision law of tile land.^ Umt SUch an act was not Yes, Mr. President, whenever that court does assume to itself the power to declare any act of Congress unconstitutional and void, then begins the struggle for supremacy m this country. F