June 8, 1866

There can scarcely bo a doubt that a.!! persons residinsin the several States at thotimcof thoadoption ot' the Federal Constitution became citizens of the United States, and no State thereafter can deprive them or their posterity of this ri ht The power to naturalize is exclusive o in Congress, and the ioreixncrnaturiilizod becomes antigen ot the United States, and necessarily is a citizen of the State in which lie is domiciled. The posterity of such foreigner so domiciled becomes a citizen of the State, and of the UnitedStatesby virtucof ilia birth alone." If the opinion of Judge Curtis be open to criticism at all it consists in the conclusion to which lie arrives—

"That it is left to each State to determine what free persons bom within its limits shall bo citizens of such State, and thereby bo citizens of the United States."

He leaves the inference that Federal citizenship may be given or taken away by State action. lie admits 1 that being a State citizen confers the Federal right. If once the character of citizen of the United States attaches, no State, 1 apprehend, can take it away. This error of Judge Curtis is shown ill the opinion of the court in the same case where it is said: "If persons of the African vaco are citizens of a State and of the United States, they would bo entitled to nil of these privileges and immunities in every State, and the State could not restrict them: for they would hold these privileges and immunities under tlio paramount authority of the Federal Government, and its courts would bo bound to maintain mid enforce them, the constitution and the laws of the State notwithstanding."

Story, in his Commentaries on the Constitution, r says:

"A person who is anntur ilized citizen of the United States bv a like residence (the same required of native horn in am St ifcin the Union, becomes ipso facto a citizen of that Stale —Zlitory sees. 11 9 S and 1G01.

In another place ho says:

"It Has always been well understood anions jurists in this country that the citizens of each Si ale constitute the hotly politic of oaeh community, called the people of the States, and that the citizens of each State m the Union are ipsofuclo citizens of the United States."

Uawle, in his work on the Constitution, page 86, uses the following language:

"The citizens of cacli State constituted the citizens of the United States when the Constitution was adopted. The rights which appertain to them as citizens of those respective Commonwealths accompanied them in the formation of the (treat compound Commonwealth which ensued. They became citizens of the latter, without ceasing to be citizens of the former; and howho was- subsequently born a citizen Of a State became at the moment of his birth a citizen of ttio United States."

Chancellor Kent says:

"If a slave torn in the United Statesbemanuinitted, or otherwise lawfully discharged from bondage, or if a black man be born within the United States and born free, ho becomes thenceforward a citizen —2 Kent s Commentaries, fourth edition, p. 257, note.

Chief Justice Taney, delivering the opinion of tlie court in the Dred Scott case, says:"

It is true every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States, became also citizens of this new political body."

This opinion, then, concedes to all members of the several State communities, and to those who should afterward, by birthright or otherwise, become members thereof, all the personal rights, privileges, and immunities guarantied to citizens of this "new Government." In fact, the opinion distinctly asserts that the words "people of the United States" and "citizens" are "synonymous terms." They both describe the political body, who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives.

The great error into which Chief Justice Taney falls consists in the fact that he arbitrarily excluded all negroes, though free, from this sovereignty. He unfortunately rejected the text of the Constitution itself, and sought judicial light in what he erroneously supposed to be "the legislation and histories of the times." Instead of construing a plain instrument as its language directed, in order to secure freedom and happiness to those who made it and their posterity, he went back seventy years to explore "the State of public opinion" which then existed in" relation to" what he termed" that unfortunate race," (the negroes,) and came to the conclusion that for more than a century before that time they had been regarded by civilized and enlightened nations "as beings of an inferior order and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect." lie entirely ignored the fact that in many of the States at that time free negroes enjoyed every privilege and immunity of citizenship. Indeed, the fact is perfectly clear, established beyond all question by "the legislation and histories of the times," that free negroes, in both free and slave States, enjoyed full citizenship, and yet Judge Taney says "it cannot be supposed that they intended to secure lo them rights and privileges and rank in the new political body throughout the Union which every one of them denied within the, limits of its own dominion." Informing his opinion he abandoned the Constitution and I he Declaration of Independence, for he distinctly says "the general words contained in the Declaration would seem to embrace the whole human family, and if they were used in a similar instrument at this day would bo so understood." He distinctly admits that he put aside these words, as a part of the history of that period, and based his conclusions upon a certain supposed state of feeling which in reality did not then exist—upon something which he called history, but which was really a perversion of history.

He admits that the Constitution was made for those who framed it and their posterity: in other words, that "every class and description of persons" recognized as citizens in the several States became a part of the political body known as "the people of the United States." This would clearly include the free negroes who enjoyed the full rights of citizenship in nearly half of the States of the Union at that time. Being citizens, then, of their respective States, they necessarily became citizens of the United States, and having become citizens of the United States, no State, can divest them of that high privilege. No power inferior to the national sovereignty could deprive them of United States citizenship. They therefore remained citizens of the States in which they might reside, and when they desired to remove from one State to another they had a right to claim in the State of their domicile the privileges and immunities of "citizens in the several States."

Sargent, in his work on Constitutional Law, at page 111, commentingonthe clause givingjurisdietion to the Federal courts between citizens of the different States, says:"

This citizenship means a residence or domicile in a particular State by one who is aeitizen of the United States."

We have notv seen that each judge in the Dred Scott case and all the commentators assert that State citizenship by the adoption of the Constitution became Federal citizenship; and i Mr. Sargent says that when one is naturalized he j becomes a citizen of the United States, and a! residence or domicile in a State gives him State citizenship.

The Federal Constitution failed to define United States citizenship, and equally failed to declare what classes of persons should be entitled to its privileges. If those persons who enjoyed "all the privileges and immunities" of State citizenship at the adoption of the Constitution were not by the Constitution made citizens of the United States, it would be difficult to ascertain who were to be considered such. To deny it in such cases would lead to a total denial of such a thing as United States citizenship at all. But that cannot be the case, for, in defining the qualifications of a Representative in Congress, the Constitution requires that he shall "have been seven years a citizen of the United States." The same instrument, prescribing the qualifications of a Senator in Congress, declares that he "shall have been nine years a citizen of the United States." It is also fixed in the instrument that no person shall be President except a natural born citizen or a citizen of the United States at the time of the adoption of the Constitution." These clauses show that such a thing as United States citizenship existed at and prior to the time when the Constitution was adopted. Another curious fact may be seen in this, that while the Senator and Representative must 'be a citizen of the United States at the time of their election, it is only necessary that they be "inhabitants" of their respective States. One may be a Senator or Representative in Congress before he has acquired the rights of citizenship in his State. But he must have once been a State citizen. For instance, if an individual, seven years before the adoption of the Constitution, had been recognized a citizen of one of the States, acquiring the right either by birth or by naturalization therein, and had continued to remove from one State to another, failing to remain in any one of them long enough to acquire "all the privilegesand immunities" of a citizen therein, he would yet have been a citizen of the United States and eligible to a seat in Congress from the State in which he was domiciled at the time. And so would one have been eligible to the Senate who nine years before had enjoyed State citizenship in one of the States under the Articles of Confederation.

In the clause fixing the qualifications of the President, the language is changed from "citizenship" to "residence." It says no person shall be elected President who shall not have been" fourteen years a resident of the United States." Fourteen years went back to the period of the battle of Lexington. It must be that a higher evidence of attachment to the country was intended to be secured in the President than in a member of Congress, but unless "residence" in the States be regarded as furnishing that evidence equally with citizenship itself, then the qualification of the President is not of so high a character as that of a member of Congress. t It cannot be otherwise than that all free natural horn residents of the States and all who had been naturalized by the States became, at the adoption of the Constitution, citizens of the United States. Their descendants of course followed their condition. All born of such parents became citizens at their birth. The States, after the adoption, could no longer naturalize. This power, by the Constitution, was given to Congress. But now upon the moment of naturalization the foreigner becomes a citizen of the United States, and may become a citizen of any one of the States by the same residence and under the same circumstances as native born citizens of other States.

Now, if there bo any force in the reasoning to which I have referred, or any weight in the authorities cited, United States citizenship is just what it is defined to be in the first section of this amendment. I mean that those persons who are to be made citizens by this amendment are the persons, and none others, who have ever been citizens of the United States Trader a fair and rational interpretation of the Constitution since its adoption in 1789.

I now proceed to consider briefly tlie second section of this amendment. It materially changes the Constitution as respects representation in the lower House of Congress. The same change, of course, will be produced in the Electoral Colleges. The Constitution, as it now stands, apportions Representatives and direct taxes among t he States according to the number of their inhabitants; but this number is to be ascertained by taking the whole number of free persons, male and female, including apprentices, and adding thereto three fifths of the slaves and excluding all Indians not taxed. It is upon this enumeration, ascertained by the census every ten years, that Representatives have been apportioned to the States since the formation of the Government. At the time the Constitution was framed the large slaveholding States desired that the whole number of their slaves should enter into the basis of representation. This was resisted by States having few or no slaves. The question was one of great difficulty. It was finally compromised, however, by estimating each slave as three fifths of a person for purposes of representation. But it was insisted that if ho were three fifths of a person for representation he should also be three fifths of a person for purposes of taxation. The controversy was therefore settled by imposing direct taxation upon the States in the same proportion in which they might be represented upon their slave population. The clause was so adjusted that whenever a slave becamcfreche necessarily became a full person for purposes of representation and taxation. He then was included in the list of" free persons," and not in that of'■ other persons." Therefore whenever a State emancipated its slaves, as many did before the late war, it increased its representative power in Congress and fell subject to increased taxation to the extent of two fifths of all persons so emancipated.

The recent war of rebellion has terminated in the abolition of slavery in all the southern States. This emancipation, ofcourse, was against the will of those States; but it none the less increases their representative power because it was forced on them.

This provision of the Constitution, like many others, looked to the ultimate extinction of slavery in all the States. It was so worded of course, as to be adapted to either state of affairs. It compromised a present difficulty growing out of a state of slavery, but anticipated a period when it would cease to exist. When the former slave became a free man he was to become one of the people. He ceased to be property, and became a person. I confess 1 can see no good reason why the negro thus emancipated should be excluded from the basis of representation. I believe that no one in the Federal Convention asked the exclusion of any person, white or black, citizen or alien, provided he were a freeman. Indeed, in the fifty fourth numberof the Federalist, Mr. Madison, commending the Constitution to the people, says:"

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 the people of each State."

And in the same connection he remarks:"

That if the laws were to restore the rights which have been taken away the negroes could no longer bo refused an equal share of representation with the other inhabitants."

For myself, I cannot refrain from expressing regret that it becomes necessary for me to give apparent indorsement to a principle contained in this second section. It departs from the views of the framers of the Constitution in several particulars. The first prominent objection is that it separates representation from taxation. If it were proposed to base taxation upon wealth instead of numbers it would be much better. Mr. Madison said that the rule of representation referred to the "personal rights of the people," and therefore should be based upon numbers, irrespective of their political condition. But he remarked that the rule basing taxation upon numbers is "in no case a precise measure, and in ordinary cases a very unfit one." The amendment, as proposed, does not base taxation upon wealth, but leaves the Constitution in this respect as it now stands. If direct, taxation be hereafter levied it will be apportioned among the States, according to their numbers, including free negroes as well as all other persons. If I believed it probable that direct taxation would be resorted to in the future legislation of the country, nothing could induce me to support this proposition. A second objection to it consists in the argument furnished, that we admit the necessity, or at least the propriety, of excluding arbitrarily a freeman from the elective franchise; and it will be contended that we render a present doubtful power of the States to do so certain. A third objection which is urged consists in the fact that while it inflicts punishment for the exclusion of the negro from the ballot, it permits the white citizen and the alien inhabitant to be excluded by the States without loss of representative power. A fourth objection will be urged that it presents too great an incentive to the States to extend suffrage to persons who are ignorant and uneducated for the mere purpose of acquiring power, inasmuch as those who may be excluded under this provision on account of the want of intelligence will be equally excluded from the basis of representation.

The amendment fixes representation upon numbers, precisely as the Constitution now does, but when a State denies or abridges the elective franchise to any of its male inhabitants who are citizens of the United States and not less than twenty one years of age, except for participation in rebellion or other crime, then such State will lose its representation in Congress in the proportion which the male citizen so excluded bears to the whole number of male! citizens not less than twenty one years of age in the State.

The original amendment reported by the committee of fifteeen, which passed the House of Representatives and was defeated in this body, put the basis of representation on numbers also, but it differed from this in some important particulars. It provided that—"

Whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall bo excluded from the basis of representation."

That proposition seemed to admit in express terms the right of the States to exclude from suffrage on account of color. The words race or color" are left out of this proposition entirely. The States under the former proposition might have excluded the negroes under an educational test and yet retained their power in Congress. Under this they cannot. For all practical purposes, under the former proposition loss of representation followed the disfranchisement of the negro only; under this it follows the disfranchisement of white and black, unless excluded on account of "rebellion or other crime." The former might have had the effect to keep the negro uneducated, in order that he might be permanently excluded under that pretension. There was to be no penalty on such exclusion, and if prejudice against race exists to the extent supposed in the southern States, perpetual ignorance must have been the fate of the negro unless Congress could have interfered to educate him. If equally educated with the white man, no possible pretext remained for the denial of suffrage except the color of his skin; and if he were excluded for race or color, he no longer constituted a part of the representative population. Under the former proposition the exclusion of ten negroes in a State because of race or color excluded from representation all persons of that race or color, though they might number half a million or more. This encourages to give the ballot, because it gives power in the same proportion as the ballot is given. In some respects, therefore, this proposition is far superior to the one defeated. No amendment can be offered on this subject which would not be liable to objections, but this is not subject to many of the harsh criticisms to which the other was.

I have already said that no one in the Federal Convention asked that a freeman should be excluded from the basis of representation, and that I could see no good reason for excluding the negro now. The same reason, however, which requires that he should be counted in the basis of representation equally demands that he should constitute a part of the political sovereignty in the several States. It is true that no one in the Federal Convention asked that the free negro should be excluded from the representative basis, but is it not equally true that the distinguished statesmen of that day admitted the citizenship of the negro and acknowledged his right to suffrage in the States? I have already shown that in five States of the Union the negro enjoyed the right to vote when the Constitution ivas adopted. Ho was therefore a citizen in those States, and the Constitution declared that, being a citizen in one State, he should have the privileges and immunities of citizenship in every other State. Having the right, therefore, to vote in one State, the right would attach to him on equal terms with the white man whenever he removed his domicile to another State.

Mr. Madison expressed confident belief that the people in the several States would not abridge the rights of suffrage, but would rather extend them. Such, no doubt, was the general belief. If these anticipations, in connection with the hope of early emancipation, had been realized, we should long since have had a Government founded upon the consent of the governed. Had such been the case we would have had no war. The war came, however, and brought with it the bitter fruits which we have gathered during the last five years.

The Virginia convention, on the 12th of June, 177G, uttered the sentiment of patriotism, and proclaimed the true theory of republican government, when it declared that "all men having sufficient evidence of permanent common interest with and attachment to the community have the right of suffrage, and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected; nor bound by any law to which they have not, in like manner assented for the public good."

No one pretends now to doubt that slavery and the discussion growing out of it produced the late war. Slavery is the natural result, of a certain degree of inferiority. The father is the patriarch and governor of the family, because of this inferiority. Until the child is twenty one years of age the father has the power of correction and enjoys the fruits of his labor. This rests upon the admitted fact that the minor is incapable of taking proper care of himself. The father is bound only to treat him with humanity, but has the right to control his person and take his earnings. Slavery proceeds from the same argument.' It is assumed that the black man is not only inferior to the white man, but incapable of selfgovernment. Admit the truth of this proposition and slavery becomes justified by the highest attributes of justice and humanity.

Mr. A. H. Stephens, the wisest of the southern statesmen, fully comprehended this theory when commending the confederate constitution to the people of Savannah in 1861. He said "the prevailing ideas entertained by him [Jefferson] and most of the leading statesmen at the time of the formation of the old Constitution were, that the enslavement of the Africans was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically." lie said, further, "the new constitution lias put at lest forever all the agitating questions relating to our peculiar institution—African slavery as it exists among us—the proper status of the negro in the form of our civilization. This," he repeats, "'was' the immediate cause of the late rupture and the present revolution."

Again, he says, the corner stone of the rie v Government "rests upon the great truth, that the negro is not equal to the white man." Speaking of the anti slavery fanatics of the North, he said, in the same speech, "Their conclusions are right if their premises are; they assume that the negro is equal, and hence conclude that he is entitled to equal privileges and rights with the white man. If their premises were correct their conclusions would be logical and just; but their premises being wrong, their argument fails."

The position taken by Mr. Stephens is certainly correct. If the negro be inferior to the white man, and incapable of self-government, modified slavery results as a matter of course. The southern argument, asserting the divinity of slavery, proceeded from this idea. We have declared that slavery in 110 form shall exist hereafter. In so declaring, we necessarily deny the negro s incapacity to take care of and govern himself. Now, if the abolition of slavery is not to be followed by such privileges and rights as will maintain and perpetuate the freedom of the emancipated, it amounts to nothing. It is "as sounding brass or a tinkling cymbal 1 Mr. Stephens said that this idea of inferiority, upon which slavery was founded upon the one side, and the opposite idea of man s equality on the other, carrying with it equal rights and equal privileges, caused the late war. itwas first a contest of opinion, then a contest of force. In the overthrow of the rebellion one idea triumphed, and necessarily the other was vanquished. False ideas, then, and false teachings had corrupted our institutions. These teachings interfered with the harmony of the Government. They had produced disease. That disease had developed itself in a destructive war. It was for us, when violence had ceased, when the paroxysms of acute pain had been allayed, to consider whether the cause of disease should be removed entirely or be left in the system to fester again.

I think it somewhat unfortunate that Congress was not in session when armed hostility ceased. It is possible that, had it been in session, it would have done nothing. It had certainly been derelict in failing to provide for a contingency, which for many months before its occurrence it was evident must soon happen. And why did it fail thus to provide'! For the saino reason that produced the war. Because we could not agree as to the status of the negro. We feared to giapple with prejudice and did nothing.

President Johnson, finding the rebellion overthrown and himself just advanced to the executive power of the nation, naturally enough felt a desire to see the Union at once restored, lie had borne a prominent part among the friends and supporters of the Government, and it would lie by no means strange that he were possessed of an ambition, laudable and honorable within itself, to take a yet more prominent and exalted position in rebuilding the shattered columns of the Union. The war had been waged that the States might be kept in their proper relations to the Government. It was tin) wish of every earnest patriot in the land In see complete restoration, and to see it as soon as possible. It had been a fearful period those four years of anxiety and dread. The loyal people never desired the war. They accepted if simply as a necessity. They went to the battle without malice toward their enemies, but simply to save the Union, and in so doing to secure the happiness and even safety of both North and South. Hence when victory came the first shout of exultation was immediately followed by an exhibition of charity and magnanimity toward a fallen foe which brought to the national name more true glory than all the achievements of war, and gave each hero a fame that will live when his most daring deeds of martial prowess shall have been long forgotten. The assassination of Mr. Lincoln checked but did not subdue this feeling of mercy.

The incoming President took counsel of his Cabinet advisers as to the course of policy to be pursued. They were substantially the same who had devised a plan of restoration with the lamented Lin coin in 1863. At, that time not more than three of the seceded States could possibly be drawn into any scheme of restoration. The rebel government held undisputed sway over all the others. The erection of loyal governments in these three States at that time should have been regarded in the light of a military measure, a means rather to crush out organized treason by fostering a counter power in its midst. Mr. Lincoln s plan was certainly not designed to build up permanent institutions to exist in a time of peace, founded upon the consent of one tenth of the inhabitants. An oath had been prescribed for the voter, good enough for that period and well calculated for the purposes designed, but wholly unfitted to the spring of 18G5, when the armies of Lee and Johnston had returned home and the reestablishment of the Union had become a fixed fact. They had been stripped of the musket. They, of course, expected for the time being to be deprived of the ballot. It was the ballot in the seceded States which had made their rebellion so formidable. It had given the rebellion .form and consistency. It had clothed treason with legal sanction. It gave the insurgents a government and lent organized purpose to every movement. The ballot had previously aided treason only because the ballot was partial. If even one half of the negroes could have voted in the seceded States in 1801 secession would have been lost in each one of them. Secession was successful at that time, because it was entirely in the hands of those whose fancied interests and whose real prejudices had brought on the war. One would suppose that when armed violence had been suppressed entirely, they who had commenced it should give a full and not a partial acceptance to the situation. I think the South at first was willing in good faith to do so. They expected nothing else. The move intelligent among them admitted that the whole, case submitted to the arbitrament of the sword had been decided against them. They did not cease to believe in secession. but the point was decided and they yielded to the decision. They did not believe that slavery should lie abolished, but slavery was involved in the ease as made up, and they yielded, as yield i the unsuccessful suitor in the highest court ol judicature They did not believe that equal rights and equal privileges should be accorded to the negro. But this question they knew was involved in the contest also. The premises taken by the supporters of the Union were proved to be correct, and now in the language of Mr. Stephens, the whole conclusion was" logical and just."

The Cabinet, however, had committed themselves to a policy, and now came that thing so dangerous always in human conduct—pride of opinion, attachmenttopreconceived notions. It may bo possible that the mind, like machinery, runs best in old and worn grooves. It is certainly true that the change of condition in public affairs made no change in policy. What had been an acknowledged temporary arrangement was now to be made a permanent institution. A plan of restoration was adopted which put the political power of the South right where it was at the beginning of the war. Many persons think that this was designed, and the President and his Cabinet wished to build up a new party, having its strength in the old rebelelement. lcamiotthinkso. [donotthink so. I think they were actuated by the best of motives, but committed a blunder. They were certainly too hasty, but 1 attribute their haste, first, to that ambition of which I have spoken, and second, to a false pride of opinion, with which man s happiness must ever contend until his whole moral nature has been reconstructed. So soon as the southern people found political power again in their grasp, the spirit of humility gradually disappeared, and they conceived a hope thatthe judgment rendered against them in the tribunal of arms might now be arrested. They supposed that, something might be saved from the wreck of their political fortunes, which, properly invested, would ultimately restore them to their former place and grandeur in the Government. If slavery could be saved, this were an investment of the most priceless character, but the President said, "Slavery shall not be saved." For this the country owes Andrew Johnson a debt of gratitude. They then thought if the technical right of secession, even, could be admitted in the words of their conventional proceedings, it would be so much laid up for the future. The President said "that no words must be used upon which an inference could hang favoring the right of secession." In this Andrew Johnson was right, and no true man will withhold his praise. They next endeavored to save treason from odium by providing that the debt contracted in its perpetration should be acknowledged and paid. To this the President gave his refusal, and again the country is thankful to Andrew Johnson for this act of true statesmanship.

For these acts the President was denounced as a tyrant. 1 only regret that his tyranny did not go far enough. Ho stopped at the precise point where the greatest degree of moral courage was needed. Southern prejudice against race had started the war, northern prejudice had prolonged it. Southern prejudice, if unsustained, would have given us a war of but short duration. Northern sympathy came to its aid, and doubled its miseries. At this period the South was ready to cast off its prejudices if the demand had been made. The President and his Cabinet had boldly conducted us to the overthrow of southern rebellion. But they now cowed before this spirit in the -North which had aided and prolonged the strife. The South saw its opportunity and promptly collected together all the elements of prejudice and hatred against the negro for purposes of future party power. They denied him the right to hold real or personal property, excluded him from their courts as a witness, denied him the means of education, and forced upon him unequal burdens. Though nominally free, so far as discriminating legislation could make liitn so ho was yet a slave. Itwas at this period, as I have said, that the President and liis Cabinet faltered. If they had put their veto upon these measures, their voice would have been the law; the South would have been saved fiomtheir worst enemies, themselves, and the whole country would have felt secure in the beginning of a better era. But they were encouraged by this indecision and want of moral firmness in the President and his Cabinet, and adopted a system of laws which doomed the negro to hopeless ignorance, degradation, and misery. They not only denied him the ballot, but denied him the commonest rights of human nature. If this thing were to bo continued there was no hope left for his future amelioration. He must be a degraded outcast. The only change made was in the name: he was once a slave, and men called him a slave; men now mocked his condition by calling him a freeman.

Thus encouraged the southern States became insolent in the immediate prospect of power, and presumed to insult the loyal sentiment of the country by conferring honors upon the most obnoxious leaders of their rebellion. They even elected and sent to Congress the men who have held the highest places in the rebel government.

In this condition of affairs Congress convened. The first thing, of course, was to close the doors of Congress against this rebel invasion. The next was to do a simple act of justice to the negroes and poorer whites of the South, who had been always loyal to the Government.' For that purpose," the act to establish a Bureau for the Relief of Freedmen and Refugees," called the Freedmen s Bureau bill," and the "act to protect all persons in the (J United States in their civil rights, called "the civil rights bill," were presented to Congress and adopted. Whatever may be said against these measures, and much has been said, their sole object was to break down in the seceded States the system of oppression to which I have alluded. Their only effect was, after feeding the starving white and black, to give the right to hold real andpersonal estate to the negro, to enable him to sue and be sued in courts, to let him be confronted by his witnesses, to have the process of the courts for his protection, and to enjoy in the respective States those fundamental rights of person and properly which cannot be denied to any person without disgracing the Government itself. It was simply to carry out that provision of the Constitution which confers upon the citizens of each State the privileges and immunities of citizens in the several States. These measures did not pretend to confer upon the negro the suffrage. They left each State to determine that question for itself. Their highest aim was to secure what the lawyers call civil rights to every person within the jurisdiction of the Government. The necessity for these or similar measures was imperative. To have failed in this duty .would not only have rendered the results of the war perfectly abortive, but would have completely withered the laurels we won in its successful prosecution.

The President saw fit to veto these measures, supposing them to be unconstitutional. I never doubted the power of Congress to pass them. I never doubted that the Government would bo disgraced if it failed to establish for the private citizen the muniments of freedom intended to be secured by them. I did have my doubts whether this was the best way to accomplish the end. It would necessarily bring about a conflict between State and Federal jurisdiction. I knew it would meet with resistance in the States. I thought it would be repulsed, as even beneficence itself is always repulsed when forced on an unwilling community.] feared that in the conflict to arise the rights of the weak would be lost sight of, and finally sacrificed. I then believed, and do now believe, that the necessity for these measures is an unfortunate necessity. That necessity cannot exist where the local government is founded upon the consent of the entire people. The people of Georgia know what laws are best for their own happiness and security. But when one half of the people legislate for all this truth ceases in its application. Let all have a voice in making the law and the popular heart will execute it, because the liberty of all consists in its enforcement. It is only where political power is in the hands of a favored few that oppression can •be practiced. It is only where oppression exists that the agents of a superior power are needed for protection. Give the negro the ballot and lie will take care of himself, because his interest requires it. Give him a bureau agent, and he will sometimes be plundered, because his interest and the interest of the agent may differ.

At an earlier day in the session F offered a proposition which I thought would secure these ends. It was a constitutional amendment in three lines. It prohibited the States, in prescribing the qualifications of voters, from discriminating against the negro on account of his color. Had this been adopted, bv its own force it made him a citizen in each State, because it gave him the highest prerogative of a freeman. There would then have been no necessity for declaring who are citizens of the United States, for every freeman would have worn the honored badge of citizenship. It would then have been useless to declare that no State shall abridge the privileges and immunities of citizens of the United States, for those simple words presented an effectual bar against it. It would have been superfluous to interdict the States from taking life, liberty, or propei ty from the citizen without due process of law; for liberty being first given, the citizen can protect his own life and property. The provision securing equal protection of the laws against inimical State legislation might then be dispensed with as wholly unnecessary. The very section we are now considering, with all its difficulties of verbal adjustment, might be abandoned and the Constitution be left in that respect as our fathers made it. The necessity for abridging representation would have ceased, for both representative and elector would have been loyal. These few words would have accomplished directly what this proposes to accomplish indirectly after years of political strife, in which truth and conscience and patriotism are too often sacrificed to the attainment of success. Had that been done it were useless to enact an exclusion from office of the leaders of the rebellion. Where all men are interested in the Government, none but peaceful revolutions are needed. Reforms are worked at the ballot-box. Governmentthen, and only then, becomes a divine institution. Rebellion against it not only injures the public weal, but it shocks the moral sense of a contented and happy people. They who lead such rebellions are at once visited with public odium. In public estimation traitors then stand as the greatest of criminals. They are looked upon as monsters in human shape. Cain bore the mark of one crime—murder; but a people perfectly free will never fail to stamp traitors, as they deserve to be stamped, with the mark of all crimes.

If that proposition had been adopted wc need not pledge our faith to the payment of the public debt. 'That faith would have been best secured in the honest convictions and the moral sense of the people. Had it been adopted, we need not have proclaimed by constitutional enactment the invalidity of the rebel debt, founded as it is upon contracts made in contravention of public policy, against the best interests of the State, in violation of the laws of the land, and for the purpose of enslaving the very men whose substance would bo required to pay it.

But, Mr. President, in all this I may have been mistaken. The presumption is, I was mistaken, for a large majority have ruled against me. i yet have faith mils ultimate success. Necessity, if nothing else, will soon bring believers. Believers may be now few, but as through the faith of the Hebrew mother, so again they will soon bo "many as the stars of the sky in multitude, and as the sand which is by the sea shorc innumerable."

The old saying is true, that wc must take things as we find them. I am somewhat an optimist, and this at last maybe the best. The negroes during the war were our faithful allies. They are now steeped in poverty and must remain so unless Congress does something to help them. The poor whites of the South are not in a much better condition. State governments are already in the hands of those hostile, through prejudice or interest, to their improvement or amelioration. The legislation of these governments even now frets with oppression. Within the scope of State jurisdiction there is no such thing as equality in the law. The State, courts are already deciding the "civil rights bill" to be unconstitutional. The validity of all laws must depend at last upon human judgment. Judges, even in the highest courts, are but, mortals. Should the Supreme Court of the United States affirm the judgment of these inferior tribunals, the present period would be no better for the rights of the negro than that when the Supreme Court once before supposed he had no rights which the white man was bound to respect. Should such be the action of this tribunal, the problem would at once be presented, whether four million people can be peacefully held nominally free, but actually slave.

If it be true that tlie o negroes are not susceptible of education; if they are move nearly allied to brutes than to men; if as free men they can add nothing to the wealth of the country: if they are unfit to take part or lot in the State governments, it may be asked. why should they be represented in Congress? If they are incapable of choosing a Representative for themselves, why should those who treat them as inferior beings, and almost deny their humanity, claim the right to represent them as citizens? It is said that women and aliens in the North are retained in the basis of representation, why should not the negroes be retained in the South? It maybe answered that thesewomen and aliens are treated as human beings; they are regarded as persons and not dumb brutes they enjoy the right to acquire property, to enter the courts for its protection, to follow the professions, to accumulate wealth, whereby national resources are increased and national power augmented; they are a part of the people. The road to the ballot is open to the foreigner: it is not permanently barred. It is not given to the woman, because it is not needed for her security. Her interests are best protected by father, husband, and brother. The negro is the object of that unaccountable prejudice against, race which has its origin in the greed and selfishness of a fallen world. That prejudice belongs to an age of darkness and violence, and is a poisonous, dangerous exotic when suffered to grow in the midst of republican institutions, where we boast an asylum for the oppressed of every land. Why do we shudder to meet, this question? Nearly five million people, strong, vigorous, and inured to labor, are in your midst, partially without civil, wholly without, political rights. What will you do with them? You have three alternatives before you, and only three. You must kill them, eolonize them, or ultimately give them a part of your political power. For this last alternative the country is not yet prepared. With the two former humanity and common sense will successfully struggle.

But I am told that this proposition will operate as a penalty on the South. Suppose it were n penalty from which she could not escape, would it be an adequate punishment for the crime committed? Might it not, if justice untempered with mercy were consulted, be made i a permanent rule until the public debt were i paid and the curses of treason were effaced I from the land? If it be a penalty, it, is one which the offender may escape. It is likened unto the penalties of the divine law. The choice of good and evil is before them. The indulgence of evil is followed by punishment, be-; cause it is an inexorable law of man s organization. The choice of good is followed by happiness, contentment, prosperity. It isthus wisely ordained, that interest may constrain to duty, in the exercise of which the world is advanced and man is ennobled. This may be called a penalty, but, a, simple act of justice will folly discharge it. It is equal, for it applies to all the States.

Another advantage consists in the fact that it compels the moral and intellectual culture of the lower classes. If not properly qualified for the exercise of the ballot, the State governments may fall into the hands of incompetent and dangerous persons. Until all can vote, all cannot be represented. All cannot safely vote until a large majority are educated. This provision, then, may constrain to justice in a double sense. The strong argument, in favor of it is, that as the Constitution now stands four white voters in the South, formerly soldiers in Lee s army, will be equal in representative power to six of those who followed Grant from the ilapidan to Richmond or Sherman from Atlanta to the sea. I therefore accept it, in the hope that the South, seeing its true interests, will, even before the next census, learn to seek justice for themselvesin the exercise of the golden rule.

The third section of this amendment provides that no person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States or under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof. But Congress may by a two thirds vote of each House remove the disability. The language, of this section is so framed as to disfranchise from office the leaders of the past rebellion as well as the leaders of any rebellion hereafter to comc. It strikes at those who have heretofore held high official position, and who therefore may be presumed to have acted intelligently. When the section is closely scrutinized, it will be seen that comparatively few men will fall subject to the exclusion. It does not, as sometimes supposed, reach all who may have taken an oath to support the Constitution of the United States. The civil officers of the Federal Government, previous to the war, were comparatively few. With the exception of postmasters, perhaps not a thousand are yet remaining in the South. The Army and Navy of the United States were very small before the war, and I presume it is doubtful whether three hundred military and naval officers yet survive the rebellion who will bo affected, and these will be chiefly officers who were educated in the Military and Naval Schools at the expense of the Government. They not only forfeited their oaths, but committed an act of ingratitude which forever stamps them as unfit for public position. I have but little idea what number of persons will bo reached as former members of Congress. The number cannot be very great. Those who were actuated by convictions of duty, and believed themselves right in their rebellion, boldly went to the front and fell victims to their error. Those who sinned against light and knowledge, knowing the iniquity of their conduct, exhibited such want of moral worth as to forbid an honest discharge of public duty hereafter. The executive and judicial officers of the seceding States are supposed to be men, not only of intelligence, but of distinguished abilities. These persons are not numerous, they will not likely exceed two or three hundred. Some of these took so prominent a part, and were so relentless and vindictive in their persecutions of Union men, as to have become especially obnoxious to the loyal sentiment of I he country. It will be best for the South itself to discard all such men for the future. Much the largest class of persons to be excluded under this amendment will be found among the former members of the State Legislatures. Whatmay be the probable number 1 have but little idea. Perhaps fifteen hundred or two thousand will cover all classes debarred under this amendment from the privilege of holding office. If we deduct from this the number who will be able to prove themselves innocent when charged with complicity with the rebellion, we shall have two or three hundred left, consisting chiefly of those who, as officers of the Army, educated at public expense, surrendered their commands into tin; hands of the enemy, or who as members of Congress met in conclave under the roof of the Capitol to plot treason against a Government which had honored them, and which daily paid them for acts of treachery done under the sacred name of public duty. Those fierce "furies of the guillotine 1 who came into public life under the reign of terror, inaugurated in 18 1 and who sought and obtained the offices of the confederate government because their natures were as wicked and devilish as the treason they supported, will yet be able to bold office, State and national. They are not disqualified by this section. They never took an oath to support the Constitution of the United States, for they were unnoticed until the reign of crime commenced. They were born into public life with the confederate constitution. They were turbulent, dangerous men, who found no favor in times of peace. It required commotion and storm to bring them to the surface. The rebellion was in a large measure their work, it required daring and heartless men to conduct it, and they soon became its leaders. After the adoption of the amendment we shall see these men in public office. The whole, country will conclude that those who are disfranchised are no worse than those who yet lead southern sentiment, and Congress, by a vote of two thirds, will remove the disability. 1 have no doubt that this will be the conclusion of the whole matter.

I would not be understood in what I am now t saying as complaining of the provision. 1 would perhaps be more merciful still, simply because no adequate punishment can be devised for the wickedness of the offense. We cannot punish all. To discriminate among those who are equally guilty wears the garb of injustice. We cannot even punish those who are guilty of the highest crimes, crimes which give treason its darkest hue. To do so would stamp the nation with cruelty; therefore we cannot begin without injustice. We must be merciful. I am willing to make the highest virtue of that necessity. There is so much guilt as to render the task of punishment hopeless. Hence the provision depriving even the worstrebel leaders of the ballot has been wholly abandoned. Lee, Johnston, Wade Hampton, Moseby and even Jeff. Davis, are left as qualified electors, competent tb vote for State officers and members of Congress. Moseby, after the passage of this amendment, may be legally elected to any office in the gift of the Government.

Distinguished Senators tell us that this deprivation of office is a punishment. If it be a punishment, it is so insignificant when compared with the crime that it is scarcely entitled to the name. They tell us that it is a bill of attainder. Suppose it were: are the people in their sovereign capacity prohibited from passing a bill of attainder? The people, in forming a Constitution, said that Congress should pass no such bill. They surely possessed the power to authorize Congress to do so. But for the similar prohibition on the States each State could pass a bill of attainder. The people reserved the power to themselves. They surely can amend their Constitution. If they had the power originally to declare that a member of the lower House of Congress shall have been seven years a citizen of the United States, a Senator nine years, and the President a native born citizen, a resident for fourteen years, they certainly had the right to say that no man shall hold office who has committed murder, burglary, or larceny; and if they can so declare, they may certainly disI tanehise one who has been guilty of treason. It is said the law is ex post facto in its character; what if it is? Have not the people the right, by a constitutional amendment, to enact such a law? It was even feared that Congress would be able to do so, and it was admitted that the States might do so if the people had not inhibited it in the Federal Constitution. I am aware that bills of attainder and ex post facto laws are unjust within themselves, and ought not to bo passed where the power to do so is clear.

But 1 deny that this is a bill of attainder or an ex post facto law. Such laws are criminal and not civil in their character. In the one case they select a particular delinquent, and punish him by the sole act of the Legislature without the forms of law; in the other, they call that a crime which was innocent at the time of the act, and assume to punish it, or prescribe a greater degree of punishment for that which was already punishable. Before this provision can be called a bill of attainder or ex post facto law, it must be amenable to the charge that it proposes in some form to punish. It is sufficient for this argument, to say that this is an act fixing the qualifications of officers and not an act for the punishment of crime.

And again, punishment means to take away life, liberty, or property. These are absolute or inalienable rights. To take them away is an injury to the person. It is what we call punishment. They ought, never to be taken away without due process of law. Office is the creature of Government. It is true it may be called a right. The right is not absolute but conventional. The Government created it and the Government can take it away. It has never been regarded in the American courts as a punishment when conventions and Legislatures deprived incumbents of their offices. Every State constitution contains provisions inhibiting the passage of bills of attainder, ex post facto laws, and laws impairing the obligations of contracts. The Federal Constitution provides the same limitation upon State power, which opens the Federal courts to any person aggrieved, and yet it is notorious that every State in "the Union has turned officials out of office, changed their terms of service, reduced their salaries, and entirely abolished the laws under which they held. Nobody ever supposed that this was punishment, and unless that were punishment this cannot be.

If this provision be all, even if faithfully carried out, it will be an act of the most stupendous mercy that ever mantled the crimes of rebellion. This rebellion was causeless. It was not only causeless but gigantic in its proportions, carrying hundreds of thousands to an untimely grave, and leaving a legacy of debt sufficient to crush the energies of any nation loss vigorous and powerful than ours. It was not only a gigantic rebellion, but it was conducted by its leaders in a spirit of fiendish ferocity which renders them wholly unworthy of public confidence hereafter. It is said that these leaders ought not to be condemned unheard, that they should not even be disqualified for official position until their guilt is established in a court of justice. If it were proposed to take from them life, liberty, or property, I would be unwilling to do so except according to the law of the land. But when it is only proposed to fix a qualification for office and deny them future distinctions, which would rather make their treason honorable than odious, I do not hesitate to act.

T know this will do but little good; I doubt whether it will do any. If they shall bring forth fruits meet for repentance, I perhaps will be the first to remove the disability. I never have exercised a malicious spirit toward these people. I have pitied, but never hated. No act of confiscation has ever received my support. No such act ever will. I never but once voted to disfranchise those who participated in the rebellion, and then onlybccausel believed the best interests of my State demanded it. The necessity for such exclusion there has perhaps already passed. They clamor for suffrage, and I for one am willing to grant it to them if they will now be generous enough to extend it to all who carried the musket to defend the Government while they carried the musket to destroy it.

Mr. President, the only remaining section of the proposed amendment pledges the public faith to the honest discharge of those obligations which wc have incurred in maintaining the national life. This is but an act of justice to the creditor and a proper precaution against the establishment of parties hereafter appealing to the sordid interests and lowest passions of men. It not only accepts honesty as a principle, but indorses it as the highest and best policy of the State as well as of individuals. It also declares the rebel debt void, and therein it merely adopts an old and familiar principle of the common law. No agreement founded on an immoral consideration, no contract made, the object of which is to resist the law or overthrow Government, can be enforced. It may be asked, then, why adopt this amendment? The answer is, the defendant may not avail himself of his defense. He may be willing to make a new promise, and the debt, though now void, may be sufficient to support this new promise. And again, payment may be made voluntarily, though the debt be void. But the chief argument in its favor is that it forever settles a question, and settles it as it deserves to be settled. It precludes the organization of a political party, which might appeal to the pride of the South and receive material aid from the corruption funds of foreign creditors.

Under all the circumstances I think the country should accept the amendment, for it docs much toward settling some of the vexed questions of the past.

Mr. YATES. Mr. President, I had not expected to say anything upon this question. I preferred to proceed to a vote immediately. We have had much debate upon it. I know the anxiety which gentlemen feel to come to a vote on this question, and I shall say but a very few words.

I have thought that in consequence of the position which I assumed in- the beginning of the session, and from the fact that my heart has not been entirely in favor of the measures which have been proposed, and still not opposed to them, I may say, it became me to explain my views. It seems to be fashionable in this day for gentlemen who presume to think their views should be known to avail themselves of the opportunity to explain their position. I propose to do so now; and that I may speak more directly to the purpose, that I may present the views which I wish to present, and which I promise to detain the Senate but a very few minutes in stating, I will send to the desk of the Clerk an amendment which I propose to be added as a last section to the sections already under consideration, not so much that I care whether a vote is taken on it or not, but simply as the basis of the very few remarks which I shall submit on the present occasion.

The Secretary read as follows:

Nothing in the fore roinp sections shall abridge or ill anywise affect the rights, franchises, or privileges of any inhabitant of the United States, or of any State or Territory of the United Sta es guarantied bv the constitutional amendment abo is hins slavery within the United States, in force on the 18th day of December, 1865.

Mr. YATES. At the beginning of the session I took the ground that already by the Constitution of the United States, as amended, every man in the United States, without regard to color or caste of any kind, was a citizen, and 1 offered a resolution to that effect, based upon the l act that by the constitutional amendment we had abolished slavery within the United States and in all the Territories subject to the jurisdiction of the United States, and required Congress, by appropriate legislation, to enforce llial provision of the amendment. 1 offered my resolution declaring what seemed to be an admitted fact by Senators of distinguished ability, that all constitutions, laws, and regulations of any State or Territory of the United States which conflicted with this amendment to the Constitution of the United States were null and void. 1 took the ground that this being the fact, Congress should resort to the mode prescribed and required by the amendment, to "appropriate legislation," to enforce that provision of the Constitution.' I assumed the position that that amendment did not confer freedom upon the slave, or upon anybody, without conferring upon him the muniments of .freedom, the rights, franchises, privileges that appertain to an American citizen or to freedom, in the proper acceptation of that term. I took the ground laid down in the decision of the Supreme Court of the United States in the Dred Scott case, (which certainly was a hard rule by which I should be governed,) that when this amendment passed the freedman was no longer a member of a subject race. He became by virtue of the amendment one of the people, one of the body politic, and entitled to be protected in all his rights and privileges as one of the citizens of the United States. The deductions drawn from the decision in the Dred Scott case were irresistible. The great Senator from Massachusetts [Mr. Sl jimrJ said—the highest compliment ever paid to me in my life—that in view of the principles laid down in that decision I had assumed an unanswerable position.