June 8, 1866

The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (IL It. No. 127) proposing an amendment to the Constitution of tlie United States, the pending question being on the amendment of Mr. Williams to strike out the second section and to insert the following in lieu thereof: Sec. 2. Representatives shall he apportioned among thescveral States according .otheirrespectivenumbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever the i right to vote at any election held under the Constitution and tawsot the United States, or of any State, is denied to any of the male inhabitants of such State, being twenty one years of asc and citizens of tlie Unifed States, or in any way abridged except for participation in rebellion or other ei U ne the basis of representation therein shall bo reduced in the proportion which the number of such male citizens shall bear to the whotc number ot male citizens twenty one years of age in such State.

Mr. COWAN. I should like to ask how those persons excluded are to be ascertained; how the number of them is to be ascertained. IIow is it to be determined how many are excluded because they have not paid a tax within two years in my State, and how many are excluded because they have not resided in a particular district a certain length of time before voting? I suggest that these things seem to be of some difficulty in the proper determination of this question.

Mr. JOHNSON. I believe, Mr. President, that the question immediately before the Senate is the amendment offered by the Senator from Oregon to the joint resolution. Before I proceed to discuss the questions which, as it seems to me, are presented by the proposition as a whole, I beg leave to say a word upon the particular effect of that amendment. Thehonorable member who offered it, and who I suppose offered it with the concurrence of some of his friends who are in favor of the measure as it originally stood, I think stated to us the other day that it did not substantially change the provisions to be found in the second sectioivof the original proposition. What I suggested to him then I propose very briefly to suggest now, that perhaps in that he is mistaken; and as, in common with every Senator, I am, as I should be, desirous of having these constitutional amendments made as plain as language can make them, so as to avoid the evils sure to result from the existence of any ambiguity, I suggest that 1 think it will be found that the amendment of the Senator from Oregon is obnoxious to a very serious objection, and goes very much further than the original proposition for which ho proposes it as a substitute. The language of the substitute, as far as the exceptions to which the general rule which it states at the same time is to be subject, is, that" whenever the right to vole at any election held under the Constitution and laws of the United States, or of any State, is denied to any of the male inhabitants of such State,"

&c., they are to be deducted from the number which is to constitute the basis of apportionment. The language of the original proposition was, that "whenever, in any State, the elective franchise shall be denied to any portion of its male inhabitants, being citizens of the United States, not less than twenty one years of age, or in any way abridged," &c., then the basis is to be reduced in the proportion that the number excluded shall bear to the whole number of that age and of that sex.

Now, 1 think it will be found (and in that I believe 1 have the concurrence of several members of the Senate who are in favor of the prop- j proposition as it was originally presented) that the! effect of the amendment is to change the basis j by deducting from the number which is to eon- I constitute the basis, any portion of that number, I of twenty one years of age, wdio are citizens 1 of the United States, who shall be denied the right to vote at any election under the constitution or laws of any State. In all the States there are elections of a municipal character that are regulated by law, and in which the franchise is different from that which prevails in the general elections of the State; and the consequence would bo that where any persons who are twenty one years of age are denied the right to vote the basis of representation is to bo lessened in the proportion that the number excluded shall bear to the whole number falling within the class. I do not know what would be the condition of the State of Missouri, for example, if the amendment is to be adopted. I rather think that she would lose very materially by this amendment, in her representation; and 1 think the same thing would be found true of the State of Ohio, and I suppose of nearly all the States in the Union. What I suggest; therefore, to the honorable member and to the Senate is, that the phraseology of this amendment, if it is to prevail, shall be so changed as to leave it beyond doubt that all that is meant is to except out of the whole number of inhabitants of the age of twenty one years or upward, who are citizens of the State, those who are denied the right to vote at any State election, as contradistinguished from any municipal or local election. Without such a qualification I am sure it will lead to very serious doubts, and it may lead, as those doubts may be solved, to a very serious diminution of the representation of several of the States.

What I am about to say upon the merits of the rule itself, whether that rule is found in the amendment or found in the original proposition, will be said as briefly as I can say it, and more for the purpose of explaining to my own constituents the ground of the reasons for the vote which I propose to give than with any hope of influencing the opinions of any member of the Senate who is now in favor of the proposition. It comes before us in such a shape and under such circumstances that it is not to be expected, as I think, that those who were consulted, who deliberated upon, and who advised the measure in the form in which it stands, eau bo persuaded of the error of that measure in any particular by anything which may fall from a Senator who is opposed to the entire proposition.

The Constitution of the United States, as it now is, in the second section of the first article provides for the manner in which the apportionment is to be made of Representatives in Congress. It is made to depend upon the whole number of the people found in each State; and in relation to the propriety of such an apportionment there did not exist in the Convention by whom the provision as it now stands was adopted, any doubt. In the fifty fourth number of the Federalist, attributed, whether correctly or not, to Mr. Hamilton—there is some doubt whether he or Sir. Madison was its author—in recommending the adoption of the Constitution to the people of the Tj United States, and commenting upon the manner in which the apportionment was to be made, as well as the manner in which taxes were to be levied, it is said:

"It is not contended that the number of people in each State ought not to be the standard for regulating the proportion of those who are to represent thepeople of each State."

That rule in the same paper was said to be one "referring to the personal rights of the people, with which it has a natural and universal connection;" and the only doubt which existed in the minds of the Convention or any member of the Convention upon the subject was not whether numbers was not the true rule by which the basis was to be ascertained, but whether the slaves of the southern States should be considered as a portion of those numbers; and that doubt arose because the southern States insisted that the shneswere property, and the North, while recognizing the existence of property in slaves, thought it unjust that the slaves should bo considered at all in apportioning the number of Representatives to which the States where the slaves might be found should be entitled. The result was, after quite a struggle upon the subject, a compromise, by which taxation was to be regulated and by which the apportionment of Hep; csentatives was to be regulated by counting hve slaves as only equal to three freemen.

But, I repeat, neither then nor at any time since, until now, did it ever occur to anybody that in a form of government like ours the basis of representation was not to depend upon the entire number of the people to be represented; and in this amendment that is admitted to be the true basis. It provides, both as it was originally proposed by the committee by whom it was reported and as it is proposed to be amended by the honorable member from Oregon, that Representatives shall be apportioned among the several States which may be included within the Union according to their respective numbers, counting the whole number of persons in each State and excluding Indians not taxed. So that the honorable committee and the friends of this particular measure give their sanction to that as the true rule. They stand upon the ground on which our fathers stood when they adopted a rule of the same description in the Constitution, as it now stands, that numbers are to regulate representation. The only question, therefore, which the particular amendment suggests is, whether it is right to quality the operation of that general rule as is proposed to be done by this provision.

Now, what is the qualification? Only that persons twenty one years of age inhabiting each State, and being citizens of the United States, whose right to the exercise of the elective franchise is denied or in any way abridged, except in certain exceptions to which 1 shall refer after awhile, are to be deducted from the whole number, and the basis is to consist of what may remain. But the friends of the measure are not willing say not willing because that is not the effect of the amendment— to subject the rule which they themselves admit to be just to the general qualification which a general provision of that sort would make; and they therefore except from the operation of that qualification certain classes. Who are they? I say they except by not including, for all persons not included within this exception are acknowledged within the scope of the general rule of numbers. Now, who are to be found in the States? First, aliens; second, women, black and white, now all the blacks are free; third, minors, those under twenty one years of age, white and black; fourth, those who may have participated "in rebellion or other crimes." Then what will be the operation of the section if we adopt it? It will be that all aliens are to be represented, all women are to be represented, all minors are to be represented, and all rebels are to be represented. Why is that? This is to go before the people. How will the objection bo answered, as it is certain to bo made before the people, when the authors of this measure are asked, why suffer the women and minors to be represented, why suffer aliens to be represented, and, above all, why suffer rebels to be represented, and not suffer loyal men to be represented? How will it be answered, I mean to au unimpassioned judgment; I mean to a people who it is to be hoped will not be influenced by the excitement of party passion or by the prejudices growing out of the sad conflict, through which we have triumphantly come? It is to be only answered upon the ground that tile provision is necessary to secure to the black man the franchise. Is that any answer? Isit any answer that because you cannot acquire for the black man the right to the franchise he is to be denied the right of being represented? Your own theory is, as it was of your fathers, that all should be represented without, reference to color, the black as well as the white. The black is a freeman. That is your theory. But the effect of the exception is to deny to the black man the right of representation unless the State shall secure to him the right to the franchise.

Again, Mr. President, the measure upon the table, like the first, proposition submitted to the Senate from the committee offiiieeu, concedes to the States—and that was one of the grounds upon which the honorable member from Massachusetts [Mr. Si mneb voted and spoke against that proposition only the right, but the exclusive right, to regulate the franchise. His theory was that under the Constitution as it now stands, Congress has the authority to regulate the franchise in the States; and his objection to the original proposition, to which I have just adverted, was that, if adopted, it would surrender that right which he supposed to exist; and yet I imagine it is barely possible that he may vote for the section as it now stands; and what does it do? It says that each of the southern .States, and, of course, each other Stale in the Union, has a right to regulate for itself the franchise, and that consequently, as far as the Government. of the United States is concerned, if the black man is not permitted the right to the franchise, it will be a wrong (if a wrong) which the Government of the United States will be impotent to redress

I see no difference, not the slightest, between the proposition as it now stands, so far as this section i s concerned, and the original proposition which wo rejected. I call the attention of my friend from Massachusetts, to whom I referred just now, to the language of the original proposition reported to us by the committee of fifteen on the "1st of January last. It says that Representatives shall be apportioned among the several States, &c.; "provided, that whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons of such race or color shall be excluded from the basis of representation." A\ What does this do? The words "race or color" are omitted. Why. if I was an eastern man, I might guess; but no matter what may have been the particular motive for the omission of the words, the effect of the proposition is identical with that of the original proposition. The former was obnoxious to the honorable member from Massachusetts because it surrendered a right which he made a very elaborate speech to prove, in his judgment, existed in the Congress of the United States to regulate the franchise, if not always, certainly in the condition in which the country now is. This accomplishes the same purpose. It says to the States, "If you exclude any class from the right to vote, we, admitting your power to make the exclusion, say it shall have no other effect whatever than to deduct the number excluded from the whole number which is to constitute the basis of representation. If, therefore, you exclude from the benefit of the franchise any who are citizens of the United States, and twenty one years or more of age, and inhabitants of the State, who belong to any particular race, or who are of any color contradistinguished from the white man, w c admit that you have a right to exclude them, and all wo propose to do is to say that to the extent of that exclusion your basis of representation shall be diminished."

Now, is it not known to us all that there is not iu any one of the southern States, and has] not been for years, any exclusion of any white i man having the age and having the residence I required by the Constitution and laws of the, particular State, from the right to the fian- j franchise; that the whole exclusion, where there 1 has been any exclusion at all, has been of the i free blacks, and will hereafter be of all the; blacks, as all are now free? The whole oper- j operation, therefore, of the proposition before you, I that part of it to which L am now address- j ing myself, is to say precisely what the original proposition of the 31st, of .lamuiry said— "You who deny to any person belonging to any race or color the right to vote shall have your representation in the Congress of the United States lessened in the proportion t hut t he number excluded shall bear fo the entire number." The manner of ascertaining the way: in which the representation is diminished is' changed in point of form, but the result is the same. l By the original proposition of January 31 all of the race or color were to be deducted"; by the proposition before us the deduction is to be, in the proportion that the number excluded shall bear to the combined number of those included and excluded within the privilege of the franchise.

Let mo for a moment call the attention of the body to what will be the operation of that provision. The census of 1800, and 1 believe that is the case with all previous censuses, does not give us the number of males of twentyone years of age, but it does give the number of those who are twenty years of age and upward.

Mr. FESSENDEN. Allow me to ask the Senator a question, by way of illustration.

Mr. JOHNSON. Certainly.

Mr. hESSENDEN. Suppose there are two hundred thousand male citizens in a State above twenty one years of age, and they are all allowed to vote; then the whole two hundred thousand would be included under this proposition as the basis.

Sir. JOHN S OX. Certainly.

Mr. riiSSENDHN. Now, suppose the State denies the right to vote to twenty or fifty thou-, sand of that number, the basis is reduced pre- I precisely in that proportion. The language is explicit that the basis shall be reduced in that proportion. j

Mr. JOHNSON. V. e shall see about that I in a moment. It is in the proportion that the; number excluded bears to the entire number] included and excluded. 1 Mr. hESSENDEN. No; in the proportion' that, it bears to the whole number of male citizens twenty one years of age and upward.

Mr. JOHNSON. Of course that means those! included and excluded. I mean the whole number twenty one years of age and upward. Now, let us .see what will be the operation of the■ amendment oif my own State. *1 will take that i tost. In 1860. by tfce census, it appears that Maryland had 12893 l males twenty t years of age and upward, and that she had of the same age 38 030 black males. The percentage, therefore, that tlie blacks of that age bore to the whites was twenty nine and five tenths per cent. Now, in order to make myself understood more clearly, let me turn to the words of the section. If any portion of the male inhabitants of a State twenty one years of age and upward are denied the privilege of voting, or that privilege is in any way abridged, then "the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty one years of age." Then, what are we to do? We are to add together the number of whites of that age in Maryland j and the number of blacks, and the aggregate is 160 401 Now. what says the section? That the representation of Maryland is to be diminished, if she excludes all the blacks, in the proportion that 38 030 bear to 100 401 What is that proportion? It is nearly one fourth; it is exactly twenty two and nine tenths per cent. Let me be understood; for if such is not the purpose of the committee, I am sure they will change it. The basis of representation, in the event of an exclusion, is to be reduced "in the proportion which the number of such male citizens" who are excluded "shall bear to the whole number of male citizens" not less than twenty one Is it not manifest, then, that we are to ascertain, first, how many white citizens there are who are permitted to vote: second, how many citizens there are who are not permitted to vote? 1 assume, now, that in Maryland the whole number of black citizens who might vote with the authority of Maryland will bo_ excluded by her authority, that, number being tin 030 and the aggregate of both classes being 100 101

Having got the entire number, what is the next step toward ascertaining the effect, of the proposed amendment? To ascertain the proportion that the number denied the franchise bonis to the entire number who it is assumed ought to have the right to the franchise. In other words, to apply it to the case of Maryland, the representation of Maryland is to be diminished by diminishing the basis of her representation in the proportion that the number of citizens excluded bears to the whole number, as well those who arc included within the benefit of the franchise as those who are "excluded. Then it. is a simple question of ai hmetie what is the proportion between 38 030 and 100 401 It is nearly one fourth. The basis would be lessened twenty two and nine tenths per cent.. or in ot her words twentytwo and nine tenths per cent, of 100 101 would be deducted from that aggregate number. What, would bo the result of that? The result would be the loss of one Representative, Maryland now having five, and possibly, by force of the fraction, the loss of another, but certainly the loss of one.

But. it is a great deal worse in other States— a thousand times worse. I refer now to the same table furnished by the census of 1800. I shall not, trouble the Senate with it, except to call their attention to two or three of the other southern States, and then to two or three of the northern States by way of comparison. The number of while male citizens twenty years of age and upward in the State of South Carolina when this census was taken was 08 lot The number of black males of the same age at the same time was 02 923 being a percentage of fifty seven and six tenths of the aggregate. Here, then, the black males were more numerous than the white males above twenty. What is to be done in South Carolina? You add together the number of whites and the number of blacks, and if the blacks are not, permitted to vote, as they are not, then you deduct, from the basis of representation such an amount as may be ascertained by ascertaining the proportion that the number of blacks bears to the aggregate number of whites and blacks, and what is that? As 92 933 is more then 63 154 South Carolina loses at least one half of her representation, and in fact she loses more. It is sufficient for my purpose to show that she loses one half.

Go to Mississippi and the result is nearly the same. Her white males above twenty were 84 338 and her black males of the same age 98 510 being a percentage of fifty three and eight tenths of the whole. So that. State would lose half her representation.

Now, Mr. President, how will the rule proposed operate pn the northern States? The people of the northern States are, and are correctly assumed to be, just and fair. How does it operate on the State of my friend the chairman of the committee of fifteen Mr Fesseni ex Her whites of twenty years of age and upward in 1860 were 167 724 and her blacks of the same age were 302. a percentage of two tenths of one per cent. Ills State will not suffer by this provision, it is certain. Then go to the State of my friend from New Hampshire, [Mr. Clark.] They had 91 941 white males above twenty and 149 blacks, a little over one tenth of one per cent. It is obvious that neither of these two States will lose anything by this rule. I need not fatigue the attention of the Senate by calling their attention to the other northern States. Gentlemen diminish our representation unless we consent to surrender our own judgment of what we believe to be true policy, and they leave their own untouched. It is a ruinous result as far as we are concerned; it is a perfectly harmless result, as far as they are concerned. How is it. iu the State of my friend from Michigan, [Mr. L nwu who has had more especially the charge of this measure since it came from the last special committee?

Mr. CLARK. Do you mean the committee of fifteen?

Mr. JOHNSON. There was but one committee of fifteen; but I believe, or at least it is shrewdly suspected, that there has been another committee.

Mr. CONNESS. What does the Senator know about that?

Mr. JOHNSON. I guess again, and I guess that my friend from New Hampshire [Mr. Coaiik] has some knowledge of it. The State, of Michigan, in 1800, had 200 474 white males of twenty and upward, and only 1 898 blacks of the same age, being a percentage of eight tenths of one per cent.. There is no terror in the operation of this clause upon my friend from Michigan, whose State will have at least as many Representatives as she has now. even if she stops growing. Ours is to be diminished: hers, at least, is to remain as it is, to be changed only by an increase of her population. Every man in Michigan, every woman in Michigan, every alien in Michigan, every rebel in Michigan, (if they have rebels there,) is to enter into the calculation of the number which is to constitute the basis of representation of Michigan. One fourth of our aggregate male population is to be deducted, more than one half of that of South Carolina and Mississippi is to be deducted. Now, what is it all for? What is the purpose of the exception? There can be but one.

In Maryland we have a contest now going on, which, as I judge from the newspapers, is supposed by one side to involve the question of negro suffrage, and upon the other side to be wholly irrespective of that question. What is this provision for? Is it not to force negro suffrage upon every State by holding out a punishment, or a provision in the nature of a forfeiture, to any State that denies it? Does it not say to the State of Maryland, "You are now represented in the councils of the nation by five Representatives in the House of Representatives; but you shall in future, when this provision goes into operation, be represented■ only by four, unless, contrary to your judgment, contrary to your past policy, contrary to what all parties among you allege to be your present conviction, you agree to admit to the right of suffrage your black population who are of the age .of twenty one years and upward?"

The effect, .therefore, of the measure which I am discussing, and of course its purpose— for gentlemen of the intelligence of those who are friends of this measure must be supposed to know what its effect is and to design to bring about in some way or other some change in the politics of the State—the effect is to strip the South of a portion of her representation unless she will agree to change her suffrage laws. 1 do not know that the South would adopt am sure that it ought not to adopt—the course which I am about to suggest; but suppose that the moment this provision is adopted they admit their blacks by law to the right of suffrage; then their representation will not be diminished. Suppose that when the representation lias been apportioned on this basis, they repeal those statutes. The right to do either cannot be denied. The right to do the first is conceded by the proposition before us, and the power which includes the right to do the first necessarily includes the right to do the other. Are you going to change the number of Representatives of those States just in proportion from time to time as the suffrage may be extended or diminished? If that is the object, ws shall be in a state of constant turmoil. Why should it be so? What can the northern States apprehend from having the States of the South represented as the Constitution now provides? What, gentlemen, are you afraid of looking at your own section?

What now is the whole number of Representatives? The whole number of Representatives in the other House, under the apportionment made after the census of 1860, in virtue of the act of March 4, 1802, and other acts, is two hundred and forty two Of that number what were denominated as free States before slavery was abolished are entitled to one hundred and fifty seven and what were known as the slave States eighty five showing an excess of Representatives on the part of free States over those from the, slave States of seventy two In other words, if the States were all represented now as they were represented before the rebellion commenced, there would be a clear majority of Representatives upon the part of the northern States of seventytwo. Then it is an insult to those States, it is to impeach the integrity of their Representatives now in Congress or who may come into Congress at any time hereafter, to suppose that with such a majority as that the respective interests of their States, if such interests shall be supposed to conflict at all with the interests of all the States, will not be protected. It is to tell the country that you doubt your own ability: you, with one hundred and fiftyseven Representatives, doubt your power to cope in the councils of the nation with eightyfive Representatives from the southern States; to tell them consequently that although your majority is a majority of seventy two you are apprehensive that in some way or other the South may get the control of the Government. What a reflection upon yourselves! I was about to say, how dishonoring to yourselves, if such an apprehension is entertained, is such an apprehension. What an imputation it is upon the wisdom and the firmness and the patriotism of your own people. What a strong and startling fact will it be considered and be used by those who question the ability of the people to govern themselves, that their representatives upon this floor wish to guard by constitutional amendment their being injured by the efforts of eighty five men coming from the southern States against one hundred and fifty seven men coming from the free States. I invoke honorable Senators to be as firm, as decided, and as energetic in defending the interests of their respective States in the councils of the nation as they and their people have discovered themselves firm and energetic in defending the interests of the whole upon the battle fields of the late struggle. Do not show the white feather now. Do not, above all, say to your fellow countrymen and to the world", "We are not the equals of the men of the South when wo are brought together in the councils of the nation." You do not think so. I am sure; certainly I do not think so, and never have thought so; but I invoke you, as a friend, not to interfere with the rights secured to the southern States now by the Constitution which our fathers gave us, upon the pretense, utterly without foundation, that the rights of your respective States will he subjected to the slightest peril by continuing the representation as it stands.

Mr. President, I have now said all that I propose to say upon the operation of the second section as it was originally presented to the Senate and as it is proposed to be amended by the honorable member from Oregon, and having upon a former occasion submitted all the remarks that I deem it necessary to submit in relation to the third section of the original proposition, which I do not understand it is proposed to alter

Mr. WILLIAMS. I understood the Senator to say that he had proposed to make some remarks upon the amendment that 1 offered.

Mr. JOHNSON. So 1 did.

Mr. WILLIAMS. With the permission of the Senator I will state here that the amendment which I offered I find is subject to some verbal criticism which is plausible, but I do not think well founded. I find it so easy to remove the difficulty that, upon consultation with the committee and the other friends of the measure, I propose to strike out certain words and substitute others which will, perhaps, obviate some of the objections of the Senator.

Mr. JOHNSON. 1 had said all I propose to say upon it.

Mr. WILLIAMS. 1 propose to modify it by striking out the words—

But whenever the right to vote at any election held under the Constitution and laws of the United States or of any State,—

And to insert the words:

But when the ris ht to vote at any election for tbo choice of electoisfor President and Vice President of the United States, Representatives in Congress the executive and judicial otliccrsof a State, or members of the Legislature thereof.

Specifying particularly the officers for which these people must bo allowed to vote in order to be counted.

Mr. JOHNSON". That removes some of the objections to which I supposed the original proportion was subject; and that shows how exceedingly cautious we should be in those constitutional amendments; how very difficult it is to change the Constitution of the United States for any good purpose; and I mean by purpose, for the accomplishment of any good end. Now, what is the history of this attempt? At the beginning of the session a joint committee of fifteen was appointed to take into consideration the proper measures to be adopted, and they reported, first, the proposed amendment of the Constitution, of the 31st of January. That was rejected. They reported next, as a second plan, on the 10th of May, 1800, one article consisting of five sections; and here it lay for several days, when it went through an examination elsewhere, and the result was the report made by the honorable member from Michigan on the 20th of May last. Almost the entire thing has been changed since; and hero is my friend from Oregon, who, yesterday or the day before, after bringing all tlio .muteness which belongs to him to the examination of the second section as proposed by the committee, and after calling, no doubt, other fi iends of the measure to aid him, introduced his substitute for the second section and only two days have gone by when lie has become satisfied that he was wrong.

Mr. WILLIAMS. No, sir.

Mr. JOHNSON. Or, if he has not, lie has not been able to satisfy his friends that he is right; which is pretty much the same thing; and lie says very frankly that he proposes to amend it. Sir, without meaning to disparage the members of the Senate of the United States, or the men of the present age found in the public councils, either of the States or of the United States, I have a very shrewd suspicion that we are not the superiors of the men who formed the Convention that adopted the Constitution.

Mr. WILLIAMS. I beg to ask the honorable Senator whether the members of the Convention which originally formed the Constitution of the United States, with all their wisdom, did not have about as much difficulty in making the Constitution as we have in agreeing upon amendments?

Mr. J OHNSON. I know they had; but they accomplished it and it was adopted; and they took a great while to do it, and they did it, not in the midst of a political excitement. No presidential election was looming in the distance or near at hand. No contest for political power, as is about to come off even in the present year. A nation was to be created by means of their wisdom, and a nation they did create, awful in war, happy and conservative in peace. Now we are about to change it in a vital particular, even by the very amendment of the honorable member from Oregon, to change, the basis of representation as they established it, although such a man as Hamilton, in the number of the Federalist to which I have adverted, said that not a member of the Convention doubted that that was the proper basis. Upon that they had ho difficulty. They said that, according to the republican theory upon which the freedom of the people of the United States was supposed to rest, all ought to be represented. Now it is proposed to deny the right to be represented of a part, simply because they are not. permitted to exercise the right, of voting. You do not put them upon the footing of aliens, upon the footing of rebels, upon the footing of minors, upon the footing of the females, upon the footing of those who may have committed crimes of the most heinous character. Murderers, robbers, houseburners, counterfeiters of the public securities of the United States, all who may have committed any crime, at anytime, against the laws of the United States or the laws of a particular State, are to be included within the basis; but the, poor black mail, unless he is permitted to vote, is not to be represented, and is to have no interest in the Government. Why, sir, my friend from Massachusetts [Mr. Sumxf u has over and over again said that the State governments, even as they existed before the rebellion, and as they now exist, are not republican governments, and that we should change them by virtue of the obligation imposed upon the Government of the United States to guaranty to the people of each State a republican form of government. What more anti-republican doctrine, looking to the genius of our institutions, can be imagined than that which says that there may be within the limits of any State a people who are not to be represented? The war of the Revolution was not waged because of the miserable tax which England imposed, but because she claimed the right to tax those who were not to bo represented; in other words, because the colonies had no representation in the Parliament of England. And yet you tax the freedman; the States t ax the freedman; you subject the freedman to the authority of both, while at the same time you say, "You may not be represented, and it is not our purpose to secure a representation to you. Everybody else is to be entitled to the benefit of the doctrine that there shall be no taxation without representation, but you are to be an exception."

Mr. CONNESS. Because you are disfranchised.

Mr. JOHNSON. Because you are disfranchised! So are women disfranchised; so are rebels disfranchised: so are children disfranchised; so are the Chinese in California disfranchised. Why do you want to represent! them? You have them all represented under] this amendment. I have had occasion before to state wlut I supposed to be the clear misapprehension of this doctrine. The honorable memberseemsto suppose that representation and the franchise are identical. Tnev are, as different as light from darkness. The Constitution says so: yenr own amendment proclaims it. You say that representation is to depend upon numbers. So did your fathers say so. They said it and you have followed their teaching, because they said it was a right to be represented, but not a right to vote. In the language of Hamilton, in the Federalist to which I have referred, that was. a personal right, which, upon the theory of our institutions, ought to bo secured, and just in proportion as it is denied just in that proportion are you trampling upon the theory or violating the theory.

Now you want, T suppose, whatever you do to be adopted. Do you suppose that the States who are to lose representation by this measure, unless they agree to bring nboutthc contingency which it is to avert, will adopt this amendment?

Mr. CONNESS and Mr. WILSON". We do.

Mr. JOHNSON. Then you misapprehend the southern people just as much as you did before the war commenced. I do not mean you gentlemen individually. There was an impression at the North that the South wasnot in earnest. There was a corresponding impression at the South that the North wasnot—both fatal errors; the first just as fatal as the last. I say the South will not adopt it, because your people, if you were in a condition in which your rights would be so affected by this amendment as will be its operation upon the rights of! the South, would not adopt it. Massachusetts never would agree to an amendment which was to deprive her of a part of her representation unless she would consent to abandon a policy which she had adopted from the beginning of her existence. And yet you ask lis lodoit. The whole effect and the whole object have a. right to say that, because that is the whole operation of the amendment whole effect of the proposed amendment is to strike a blow at the southern States who are, now, according to my theory, in the Union, and who are in the Union 11 1011 llie theory of this amendment, unless they will agree lo a policy nl war with the policy illustrated throughout then' entire his tory.

What more do you do? By (lie third sec tion you exclude from the right of holding any office. State or Federal, a class which will be found to embrace the best men within the limits of these States. Do you suppose that, the South will agree lo that? Then: may be a few men imported there from some of the eastern or northern Slab s who have gone there lately, who will consent to it but the original southern moil will never consent lo a constitutional amendment, which strikes at a large class, indeed, of the entire class within which is to lie found the best men and (lie, wisest men within their limits.

Mr. McDOUGALL. Do f understand the Senator to say that, they include all the best men ami the wisest men of the South?

Mr. JOHNSON. Some of the best, and wisest; I did not mean all.

Mr. McDOUGALL. 1 understood you to say all.

Mr. JOHNSON. It includes nearly nil. because nearly all of Ihern have been in the Legislature or Congress or held some official station; and all who have held any office of any description, civil or military, under the United States, or under any State, who have been members of Congress or officers of the United States or members of nay State Legislature or of any executive or judicial ofliee of any State, and have taken the oath to support the Constitution, as they must all have done, are to be, excluded from the right to hold office.

Mr. MeDOTJGALL. I apologize; I did not understand the Senator.

Mr. JOHNSON. It is not necessary to apologize, I will say to the honorable memberfrom California, because he hardly ever says any thing that requires an apology, certainly as far as I am concerned.

I have upon more occasions than one, Mr. President 1 now barely allude to itstated what I thought to be the present condition of the southern States. 'Ihe rebellion being ended, in my view the Constitution of the United States and its laws are just as operative upon each of the States where the rebellion existed as they were before it was commenced. All of those States now are organized; all of them, I believe, except perhaps Texas, have their judiciary, their executive, and their Legislature, and they are now in the undisturbed exercise of the functions of each! of these departments the three embrace everything that a State has a right to do—and they are organized upon republican principles. The Supreme Court of the United States recognizes them as existing States. The Executive of the United States recognizes them as existing States. This very amendment (for there is nothing on the face of it which excludes the necessity of appealing to the States which have been in rebellion to adopt it] ree ognizes them as existing States.

Now, what are their rights under the Constitution as it stands? The Constitution provides that a census shall be taken at periods of every ten years. You took your census in 18 i0 and the apportionment was made under the act of 1802. What is there to change that, looking at the Constitution as it is? The very purpose of the provision directing an enumeration of the inhabitants of the States to be taken at each period often years was to ascertain the number of the people in each of the States that was to constitute the basis upon a*, hieli 1 he number of Representatives from each of the States was to be ascertained. That was done by force of the act of under the census of 1800. Nowjou propose to change it, and to change it by force of constitutional provision. Why cannot you wait? Why is it not right and just that you should wait until these States are represented in this Chamber and in the other House? Your fathers consulted lliem, and the weight of their patriotic wisdom in forming the Constitution of the United States was universally admitted, and is known to us historically. Why cannot you wait, now? On the contrary, you now deny them the right to appear upon this floor, although they are willing to take the oath of loyally which you have prescribed; and you undertake lo submit a proposition (bra change of the Constitution in their ubseiicc. How can you know but some man of the South might be found in the councils of the nation who would influence your councils and shape your deliberations as Madison influenced the councils and shaped the deliberations of his associates in the Convention of 1787? Do you not want aid? 1 should think so. You have not been able yet to agree on any provision for a change which has satisfied you even for a passing day.

Mr. i resident I have here—and I have alluded to the condition of these States simply for the purpose of introducing it and bringing it before the Senate opinion delivered by one of th<! judges of the Supreme Court very recently, who is one of the admitted lights of that great tribunal, whose patriotism has never been questioned, and cannot properly be questioned, in a case which involves the question, what is the condition of the States? A man by the name of Kgan was confined in the State penitentiary at, Albany, he never having been in the military sen ice of the United States or of the confederate States, under a sentence by a military commission held in the State of South Carolina to try him upon the charge of murder, and the sentence of the commission was confinement in that penitentiary for life, lie made an application to Mr. Justice Nelson for a habeas corpus. The facts were returned, and the judge in the conclusion of his opinion says, what i think bears upon the question I am discussing, what I will read:

"For aught that appears, the civil local courts of tlie State of South Carolina were in the full exercise oftheirjudici il functions at the time of this trial, as restored by the suppression of the rebellion, some seven months previously, and bv the revival of the laws and reorganization of the State government in obedience to and in conformity with its constitutional duties to the Federal Union.

"Indeed, long previous to this, a provisional, governor b ul been appointed by the President, who is Commander in Chief of the Army and Navy of the United State?, (and whose will under raartb! law constituted the only rule of action,! for the special purpose of changing the existing state of things and restoring civil government over the people. In pursuance of this appointment a new constitution bad been formed, a Governor and Legislature elected under it, and the State in the full enjoyment or entitled to the full enjoyment of her constitutional rights and privileges.

"The Constitution and laws of the Union were thereby acknowledged and obeyed, and were as authoritative and binding over the people of the State as in any other portion of the country. Indeed, the moment the rebellion was suppressed., and the government growing out of it subverted, the ancient possession, authority, and laws, resumed their accustomed sway, subject only to the new organization or the appointment of proper officers to give to them operation and effect."

This reorganization and appointment of the public functionaries, which was under the superintendence and direction of the President, as Commanderin-Chief of the Army and Navy of the country, who, as such, had previously governed the people of the State from imperative necessity by force of martial law, had already taken place, and the necessity no longer existed."

Let me repeat a sentence of that decision. The judge says that the State of South Carolina, at the time this trial was had, was "in the full enjoyment, or entitled to tlie full enjoyment. of her constitutional lights and privileges." One of those rights and privileges was that of being represented in this body and represented in the other House. Now, we keep them out, unless they think proper least I suppose that is the course the matter is to take—unless they will "submit to adopt a measure which is contrary to what we know they would do if they were not by compulsion forced to take it.

Mr. President, I have but a word to say in conclusion. We all have an interest in the peace of the country. We have a deep interest in the peace of the country because it is connected with the prosperity and good name of the country. Wo have a social interest in being together again as brothers, of presenting to the nations of the world ourselves as one, and exhibiting the characteristics of a great and magnanimous people, who, forgetting recent animosities, discarding the prejudices out of which they grow, and looking to the honor and glory of the nation, come together as brothers. one and all. By the highest of moral considerations, therefore, the termination of tlie present state of things is demanded. But if we cannot raise ourselves to the elevation of being governed by moral considerations, let mere material considerations animate us; let interest, in its most vulgar sense, control us. Let us, therefore, bring back the South so as lo enable her to remove the desolation which has gone throughout her borders; restore her industry; attend to her products—those products which enter so materially into the wealth' of the whole, so important to the North, and more important, if possible, to the North than to the South, but all important to the nation—■ instead of keeping her in a state of subjection, of dishonoring subjection, and, as I think, without the slightest necessity. Peace once existing throughout the land, the restoration of all rights brought about, the Union will be at once in more prosperous existence than it ever was; and throughout the tide of time, as I believe, nothing in the future will over cause us to dream of dissolution, or of subjecting any part, through the powerful instrumentality of any other part, to any dishonoring humiliation. Mr. McDOUGALL. It is a work of labor to speak after the eloquent remarks of the Senator from Maryland, who lias better expressed what I think than I can express it in any form of words; and yet I think it is due lo myself and the opinion I represent (for I think I represent the opinion of my own country) that I should say a few words. They will not be many. There is an intense love for the Union throughout all the country; there was an intense love of the Union in my own country, and there is to day not governed by any form of words, hnt governed by principles and a high sense of right and justice. I do not care to reason about this thing. It has been reasoned about by eminent men, men wdio can discourse better than myself, to whom I submit the authority of the argument; but I wish to say that throughout all the States that, belong to this Union there has been always a preponderating loyal sentiment, in the South as well as in the North. Two thirds of the people of the South loved our flag, and hailed it in Tennessee as well as elsewhere. These things have not been well observed. They should have been well observed. The observation has been neglected because for this, that in some departments of New England they thought they were the loyalest of them all. It has been the pride of my life to have lived among all these peoples, and from the South, East, West, and North all were loyal. The accident of controversy changed the condition of society and changed positions in States. I witnessed it. It was witnessed by all men who were observant men. I regretted it, for I thought the South were in error, and I always have. The majority of the people of the South are loyal to the banner of our country, always were. This was not known or recognized well in the North, because they were ignorant of the fact. I was not ignorant of the fact, for I was conversant with it.

In the tribulation of a war, with the chances of battle and the chances of sudden death, men differed, and some went one way and some went another. Thus does it always happen in all great civil controversies. I believe there is as much regret to Jay in the South as there is in the North for the great error in which they indulged. Gentlemen seek now what is called reconstruction. There is no such thing as reconstruction. There may be rehabilitation. Wo may take them to our own house at home, those who wandered away, and again embrace them as brothers. That is a duty imposed upon us by the highest laws and the highest principles that govern the conduct of persons among the best classes of mankind.

I do not please to discourse, for all that there is in and about the subject matter of the present controversy has been discussed with carefulness by men whom I will admit to be my masters. I cannot advise the Senate nor can I instruct them in any form of words; yet it is my duty in my place to state my solemn convictions.

This whole measure is supplying the foundations of our institutions. If 1 have not forgotten myself, wise men built the foundations; wise men built the superstructure, wise men had to do with all that belongs to its edification. If I have not been badly instructed, tinkers have taken the hands and undertaken to do what their fathers would not dare to do, what I with the instructions I have had would not dare to do. It has been said that "fools rush in where angels fear to tread." It has seemed to me that that was the habitude of men who think they are fit to be Senators of a great nation. If I differ with them in opinion I ask their pardon for the difference. We have got a great work to do. The nations are at war. France and Austria and France and Italy are at war. We not a long time hence will be at war with our legions in the field. These things will happen, and they have to be looked at with a bold eye and a firm front. These things are not to be disguised. Why is Maximilian now to day maintained as the house of Hapsburg in Mexico? A trick of political strategy, a trick alone, nothing more, nothing less. He has to leave Mexico absolutely; and wlvy has it not been done? Permit me now to say it is the fault of our own Government, for had it been said by the officer who has charge of the foreign relations of this Government, "Noli me iangere," there would have been no occupation of Mexico by Maximilian, or the house of Austria or Louis Napoleon. These things have to be corrected, and they have got to be corrected by the stern will and the determined force of the men of the country wherein I was born, whose interests I intend to maintain. Again, Mr. President, there are other questions—and as I am speaking I am not making a speech, but I am talking may ask, what about the trouble on our northern frontier, and what about that trouble in Ireland?

Mr. CLARK. The Fenians!

Mr. McDOUGALL. Yes, the Fenians. I know something about 1745, and I know something of Vinegar Hill. Now, I will say that in my judgment the less we have to do with that the better.

But, Mr. President, we have got to look with great carefulness at the question pending— this matter of reconstruction, so called. I do not say reconstruction; I say rehabilitation. These men of the South are, after all, our own brothers. Why should we call them enemies? Is it because we are afraid of them? Is it from a cowardly spirit? Why should wo be afraid of them? Why not invite them into our own house? I say to them, come back to our house and sit down with us and dine with us and enjoy our hospitalities. Those who are not willing to say that are violating a great law of truth and a great law of justice, and those who undertake to maintain such a position must themselves bo subjugated. I am opposed to subjugation, have been always, but if subjugation has to come, there have been inquiries, wdio is to be subjugated? I have lived in pretty near all portions of this Republic, and I will not allow the conquered to be subjugated as long as I can spell my own name and dare to call myself by my own nomen. These nlen were, by the exact contract of the Government, invited to come back and enjoy their rights. They accepted the proposition. When Lee surrendered it was an acceptance of the proposition. By whom is it denied? By brave men? No. Why should they not come back and grasp our hands and say, "We were brothers once; we differed years ago; now we come back to embrace you?" Why should wo not accept their embrace? Can any man state why? It is not within the range of thought for expression to state it.

I went down once on the Mississippi, at the opening of this war. I met a general of the confederate army, and I took him by the hand, and took him to my state room on board of my gunboat. Said he, "General," throwing his arms around me, "how hard it. is that you and I have to fight." That was the generosity of a combatant. I repeated to him, "It is hard," and he and I drank a bottle of wine— or two just as like as not. [Laughter.] This thing of bearing malice is one of the wickedest sins that men can bear under their clothes. 1 think the general of the confederate army who said that to me—he was an old acquaintance of mine—showed more gallantry in saying it than any person shows who curses them. I took him to my room and treated him kindly. We would have fought at the instant, if it had been a fight, but not being a fight we treated each other generously.

I am for reintegration as soon as possible. No, I do not like that term "reintegration." I prefer the term rehabilitation, which was given to us by the Senator from Pennsylvania, [Mr. Cowan.] I say let ns rehabilitate them as soon as possible and make them friends and brothers. Otherwise we make them enemies: and for what cause? There is no cause. We are all capable of faults. Who is there that is not? Thereisalesson, I believe, taught by the Master: "Let him that is without sin cast the first stone." Wickedness belong? to all people that have got bone and nerves and will.

I say this measure is wrong radically, and I say further, it is my opinion that white men of the Caucasian race were made for governors, and that negroes are only fit to be a subject race. I do not care for their subjection here. I wish for them all to be free and away. Nevertheless, not with my consent, not by any force which I can employ, shall they be allowed to have to do with governing me or my kindred. That is one reason why I oppose the whole principle of the measure, and if I fall down, I will fall like Ctesar.

Mr. HENDERSON. I propose to discuss the first section only so far as citizenship is involved in it. I desire to show that this section will leave citizenship where it now is. It makes plain only what has been rendered doubtful by the past action of the Government. If I be right in that, it will be a loss of time to discuss the remaining provisions of the section, for they merely secure the rights that attach to citizenship in all free Governments.

Justice McLean, in the Dred Scott case, said: "Being born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen. Tlie most general and appropriate definition of the term citizen is a freeman So the learned judge held that" Dred Scott," having his domicile in a State different from that of the defendant, and being a freeman, is a citizen within the act of Congress, and the courts of the Union are open to him.

From his argumentit follows that any person, black or white, born upon the soil of a State, is a citizen of that State, unless he be born in slavery, and if he be born a slave, he becomes a citizen so soon as by the laws of the State he becomes a free man. His opinion leads to the conclusion that citizens of States are necessarily citizens of the United States. All born on the soil free are citizens of the respective States of their birth, and therefore citizens of the United States. Those born on foreign soil, ho holds, cannot be invested with rights of citizenship without naturalization.

He says further:

"While X admit the Government was not made especially for the colored race, yet many of them were citizens of the New England States, and exercised the rights of suffrage when the Constitution was adopted."

Judge McLean might have gone further and enumerated other than New England States that acknowledged the citizenship of African freemen at that date.

All remember the opinion of the supreme court of North Carolina, delivered by Judge Gaston, and reported in the case of State vs. Manuel, 4 Dev.& Bat. 20. He said:

"According to the laws of this State, all human beings within it, who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the It Roman laws between citizens and free inhabitants, they are unknown to our institutions. Before our Revolution, all free persons born within the dominions of the Kmpcot Great Britain, whatever their color or complexion, were native born British subjects; those born out of his allegiance were aliens. Slavery did not cxi t in England, but it did in the British colonies. Slave* were not in legal parlance persons, but property. X iic moment the incapacity, the disqualification of slavery was removed they became pe ons and were then either British subjects or not British subjects, according as they were or were not born within the allegiance of the British King. Upon the Revolution, no other change took place in the laws ot North Carolina than was consequent on the transition from a colony dependent on a European kmg to a free and sovereign State, Slaves remained slaves. British subjects in North Carolina became North Carolina freemen. Foreigners, until made members of the State, remained aliens. Slaves manumitted here became freemen, and therefore, if born within North Carolina, are citizens of North Carolina, and all free persons born within the State, are born citizens ol' the State. The constitution extended the elective franchise to every freeman who had arrived at, the age of twenty one and paid a public tax: and it is a matter of universal notoriety that under it free persons, without icgardto color, claimed and excreted the franchise until it was taken from free men of color a few years since by our amended constitution."

Judge Curtis, in his dissenting opinion in the Dred Scott case, says:" To determine whether any free persons descended from Africans held in slavery were citizens of the United States under the Confederation, and consequently at the time of the adoption of the Constitution of the United States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation. Of this," he said," there can be no doubt."

At the time of the ratification of the Articles of Confederation free native bom inhabitants of the Stat esof New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only called citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors on equal terms with other citizens.

In conclusive proof of his reasoning on this subject Judge Curtis cites the action of Congress when framing the Articles of Confederation. The fourth article, it will be remembered, provides "that the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States." While this provision ■was under consideration, June 25, 1778, the South Carolina delegates moved to insert the word "white" after "free" and before "inhabitants," thereby securing the privileges only to white persons. The motion was voted down by eight States to two, one State being divided. This proves beyond doubt that the privileges and immunities of citizenship were at that time willingly accorded to all men who were free, who were not slaves, whether white or black.

Judge Curtis, after stating that in five States at least free negroes enjoyed the elective franchise when the Constitution was adopted, concludes very justly that they became" citizens of the new Government," and "so in every sense part of thepeopleof the United States," and" among those for whom and whose posterity the Constitution was ordained and established."