The Congressional Globe: Containing the Debates and Proceedings of the First Session of the Thirty-Ninth Congress Page: 2,766

                                
2766
THE CONGRESSIONAL GLOBE.
May 23,
do not come within the sweeping clause of the
Constitution authorizing Congress to pass all
laws necessary and proper for carrying out the
foregoing or granted powers, but they stand
simply as a bill of rights in the Constitution,
without power on the part of Congress to give
them full effect; while at the same time the
States are not restrained from violating the
principles embraced in them except by their
own local constitutions, which may be altered
from year to year. The great object of the
first section of this amendment is, therefore,
to restrain the power of the States and com-
pel them at all times to respect these great
fundamental guarantees. How will it be done
under the present amendment? As I have
remarked, they are not powers granted to
Congress, and therefore it is necessary, if they
are to be effectuated and enforced, as they
assuredly ought to be, that additional power
should be given to Congress to that end. This
is done by the fifth section of this amendment,
which declares' that " the Congress shall have
power to enforce by appropriate legislation the
provisions of this article." Here is a direct
affirmative delegation of power to Congress to
carry out all the principles of all these guar-
antees, a poiver not found in the Constitution.
The last two clauses of the first section of
the amendment disable a State from depriving
not merely a citizen of the United States, but
any person, whoeverhe maybe, of life, liberty,
or property without due process of law, or from
denying to him the equal protection of the laws
of the State. This abolishes all class legisla-
tion in the States and does away with the in-
justice of subjecting one caste of persons to
a code not applicable to another. It pro-
hibits the hanging of a black man for a crime
for which the white man is not to be hanged.
It protects the black man in his fundamental
rights as a citizen with the same shield which
it throws over the white man. Is it not time,
Mr. President, that we extend to the black
man, I had almost called it the poor privilege
of the equal protection of the law? Ought not
the time to be now passed when one measure
of justice is to be meted out to a member of
one caste while another and a different meas-
ure is meted out to the member of another
caste, both castes being alike citizens of the
United States, both bound to obey the same
laws, to sustain the burdens of the same Gov-
ernment, and both equally responsible to justice
and to God for the deeds done in the body?
But, sir, the first section of the proposed
amendment does not give to either of these
classes the right of voting. The right of suf-
frage is not, in law, one of the privileges or im-
munities thus secured by the Constitution. It
is merely the creature of law. It has always
been regarded in this country as the result of
positive local law, not regarded as one of those
fundamental rights lying at the basis of all
society and without which a people cannot
exist except as slaves, subject to a depotism.
As I have already remarked, section one is
a restriction upon the States, and does not, of
itself, confer any power upon Congress. The
power which Congress has, under this amend-
ment, is derived, not from that section, but
from the fifth section, which gives it authority
to^ pass Irws which are appropriate to the at-
tainment of the great object of the amendment.
I. look upon the first section, taken in connec-
tion with the fifth, as very important. It will,
if adopted by the States, forever disable every
one of them from passing laws trenching upon
those fundamental rights and privileges which
pertain to citizens of the United States, and to
all persons who may happen to be within their
jurisdiction. It establishes equality before the
law, and it gives to the humblest, the poorest,
the most despised of the race the same rights
and the fcame protection before the law as it
gives to the most powerful, the most wealthy,
or the m )st haughty. That, sir, is republican
governm ent, as I understand it, and the only
one whi(.h can claim the praise of a just Gov-
ernment. Without this principle of equal jus-
tice to all men and equal protection under the
shield of the law, there is no republican gov-
ernment and none that is really worth main-
taining.
The second s ction of the proposed amend-
ment reads as follows: ,
Sec. 2. Representativesshallbe 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,
excluding Indians not taxed. But whenever, in any
State, the elective franchise shall be denied to any
portion of its male oitizens not less than twenty-
one years of age, or in any way abridged, except for
participation in rebellion or other crime, the basis
of representation in such State shall be reduced in
the proportion which the number of such male citi-
zens—
That is, citizens as to whom the right of
voting is denied or abridged—
shall bear to the whole number of male citizens
not less than twenty-one years of age.
It is very true, and I am sorry to be obliged
to acknowledge it, that this section of the
amendment does not recognize the authority
of the United States over the question of suf-
frage in the several States at all; nor does
it recognize, much less secure, the right of
suffrage to the colored race. I wish io meet
this question fairly and frankly ; I have noth-
ing to conceal upon it; and I am perfectly free
to say that if I could have my own way, if my
preferences could be carried out, I certainly
should secure suffrage to the colored race to
some extent at least; for I am opposed to the
exclusion and proscription of an entire race.
If I could not obtain universal suffrage in the
popular sense of that expression, I should be
in favor of restricted, qualified suffrage for the
colored race. But, sir, it is not the question
here what will we do; it is not the question
what you, or I, or half a dozen other members
of the Senate may prefer in respect to colored
suffrage; it is not entirely the question what
measure we can pass through the two Houses ;
but the question really is, what will the Legis-
latures of the various States to whom these
amendments are to be submitted do in the
premises; what is it likely will meet the gen-
eral approbation of the people who are to elect
the Legislatures, three fourths of whom must
ratify our propositions before they have the
force of constitutional provisions?
Let me not be misunderstood. I do not
intend to say, nor do I say, that the proposed
amendment, section two, proscribes the col-
ored race. It has nothing to do with that ques-
tion, as I shall show before I take my seat. I
could wish that the elective franchise should
be extended equally to the white man and to
the black man; and if it were necessary, after
full consideration, to restrict what is known as
universal suffrage for the purpose of securing
this equality, I would go for a restriction; but
I deem that impracticable at the present time,
and so did the committee.
The colored race are destined to remain
among us. They have been in our midst for
more than two hundred years; and the idea of
the people of the United States ever being able
by any measure or measures to which they may
resort to expel or expatriate that race from
their limits and to settle them in a foreign
country, is to me the wildest of all chimeras.
The thing can never be done; it is impracti-
cable. For weal or for woe, the destiny of the
colored race in this country is wrapped up with
our own; they are to remain in our midst, and
here spend their years and here bury their
fathers and finally repose themselves. We
may regret it. It may not be entirely compat-
ible with our taste that they should live in our
midst. We cannot help it. Our forefathers
introduced them, and their destiny is to con-
tinue among us; and the practical question
which now presents itself to us is as to the best
mode of getting along with them.
The committee were of opinion that the
States are not yet prepared to sanction so fun-
damental a change as would be the concession
of the right of suffrage to the colored race.
We may as well state it plainly and fairly, so
that there shall be no misunderstanding on the
subject* It was our opinion that three fourths
of the States of this Union conld not bo in-
duced to vote to grant the right of suffrage,
even in any degree or under any restriction,
to the colored race. We may be right in this
apprehension or we may be in error. Time
will develop the truth; and for one I shall wait
with patience the movements of public opin-
ion upon this great and absorbing question.
The time may come, I trust it will come, indeed
I feel a profound conviction that it is not far
distant, when even the people of the States
themselves where the colored population is most
dense will consent to admit them to the right
of suffrage. Sir, the safety and prosperity of
those States depend upon it; it is especially
for their interest that they should not retain in
their midst a race of pariahs, so circumstanced
as to be obliged to bear the burdens of Gov-
ernment and to obey its laws without any par-
ticipation in the enactment of the laws.
The second section leaves the right to regu-
late the elective franchise still with the States,
and does not meddle with that right. Its basis
of representation is numbers, whether the num-
bers be white or black; that is, the whole
population except untaxed Indians and per-
sons excluded by the State laws for rebellion
or other crime. Formerly under the Consti-
tution, while the free States were represented
only according to their respective numbers of
men, women, and children, all of course en-
dowed with civil rights, the slave States had
the advantage of being represented according
to their number of the same free classes, in-
creased by three fifths of the slaves whom they
treated not as men but property. They had this
advantage over the free States, that the bulk
of their property in the proportion of three
fifths had the right of representation in Con-
gress, while in the free States not a dollar of
property entered into the basis of representa-
tion. ,lohn Jacob Astor, with his fifty millions
of property, was entitled to cast but one vote,
and he at "the ballot-box would meet his equal
in the raggedest beggar that strolled the streets.
Property has been rejected as the basis of just
representation; but still the advantage that was
given to the slave States under the Constitu-
tion enabled them to send at least twenty-one
members to Congress in 1860, based entirely
upon what they treated as property—a number
sufficient to determine almost every contested
measure that might come before the House of
Representatives.
The three-fifths principle has ceased in the
destruction of slavery and in the enfranchise-
ment of the colored race. Under the present
Constitution this change will increase the num-
ber of Representatives from the once slave-
holding States by nine or ten. That is to say,
if the present basis of representation, as estab-
lished in the Constitution, shall remain oper-
ative for the future, making our calculations
upon the census of 1800, the enfranchisement
of their slaves would increase the number of
their Representatives in the other House nine
or ten, I think at least ten ; and under the next
census it is easy to see that this number would
be still increased ; and the important question
now is, shall this be permitted while the col-
ored population are excluded from the privi-
lege of voting? Shall the recently slavchold-.
ing States, while they exclude from the ballot
the whole of their black population, be enti-
tled to include the whole of that population in
the basis of their representation, and thus to
obtain an advantage which they did not pos-
sess before the rebellion and emancipation? In
short, shall we permit it to take place that one
of the results of emancipation and of the v.ar
is to increase the Repiesentatives of the lale
slaveholding States? T object to this. I think
they cannot very consistently call upon us to
grant them an additional number of Repre-
sentatives simply because in consequence of
their own misconduct they have lost the prop-
erty which they once possessed, and which
served as a basis in great part of their repre-
sentation.