Reminiscences of Sixty Years in Public Affairs Volume II Part 2

_"It is therefore declared_ (as the opinion of the House of Representatives), that the inst.i.tution of slavery was the cause of the present rebellion, and that the destruction of slavery in the rebellious States is an efficient means of weakening the power of the rebels; that the President's proclamation whereby all persons heretofore held as slaves in such States and parts of States have been declared free, has had the effect to increase the power of the Union, and to diminish the power of its enemies; that the freedom of such persons was desirable and just in itself, and an efficient means by which the Government was to be maintained, and its authority re- established in all the territory and over all the people within the legal jurisdiction of the United States; that it is the duty of the Government and of loyal men everywhere to do what may be practicable for the enforcement of the proclamation, in order to secure in fact, as well as by the forms of law, the extinction of slavery in such States and parts of States; and, finally, that it is the paramount duty of the Government and of all loyal men to labor for the restoration of the American Union upon the basis of freedom.

_"And this House does further declare,_ That a State can exist or cease to exist only by the will of the people within its limits, and that it cannot be created or destroyed by the external force or opinion of other States, or even by the judgment or action of the nation itself; that a State, when created by the will of its people, can become a member of the American Union only by its own organized action and the concurrent action of the existing National Government, that, when a State has been admitted to the Union, no vote, resolution, ordinance, or proceeding on its part, however formal in character or vigorously sustained, can deprive the National Government of the legal jurisdiction and sovereignty over the territory and people of such State which existed previous to the act of admission, or which were acquired thereby; that the effect of the so-called acts, resolutions and ordinances of secession adopted by the eleven States engaged in the present rebellion is, and can only be, to destroy those political organizations as States, while the legal and const.i.tutional jurisdiction and authority of the National Government over the people and territory remain unimpaired; that these several communities can be organized into States only by the will of the loyal people, expressed freely and in the absence of all coercion; that States so organized can become States of the American Union only when they shall have applied for admission, and their admission shall have been authorized by the existing National Government; that, when a people have organized a State upon basis of allegiance to the Union and applied for admission, the character of the inst.i.tutions of such proposed State may const.i.tute a sufficient justification for granting or rejecting such application; and, inasmuch as experience has shown that the existence of human slavery is incompatible with a republican form of government, in the several States or in the United States, and inconsistent with the peace, prosperity and unity of the nation, it is the duty of the people and of all men in authority, to resist the admission of slave States wherever organized within the jurisdiction of the National Government."

The logical consequence of these positions was that upon the conquest of the States engaged in the rebellion the National Government could govern the people as seemed expedient and readmit them into the Union at such times and upon such terms as the Government should dictate.

They antagonized the doctrine then accepted by many Republicans-- "Once a State always a State"--a doctrine that would have transferred the government at once into the hands of the men who had been engaged in an effort to destroy it.

Mr. Sumner was wiser in this respect. His theory that the rebellious States should be reduced to a Territorial condition was in harmony with the views that were embodied in the resolutions. At the time, however, they did not receive the support of all the members of the Republican Party.

Mr. Stevens maintained the doctrine that the rebel States were conquered States and wholly subject to the power of the conqueror.

In his view their previous condition as States in the Union had no value. But Mr. Stevens was never troubled by the absence of logic or argument. In the case of the rebel States he intended to a.s.sert power enough to meet the exigency and he was free of all fear as to the judgement of posterity. When he had formed a purpose he looked only to the end. If he could command the adequate means he left all questions of logic and ethics to other minds and to future times.

Others maintained that the theory that the States were in a Territorial condition or that they had ceased to exist as States, was an admission of the doctrine of secession. Mr. Lincoln in his last public address cut clear of all theories and resolved the situation into a simple statement of a fact to which all were compelled to a.s.sent: "We all agree, that the seceded States so-called, are out of their proper practical relations with the Union." On this basis Congress finally acted, but during the process and progress of reconstruction the military authority was absolute, and local and individual powers were completely subordinated to the authority of the General Government.

COUNTING THE ELECTORAL VOTES

In 1865 and 1869, questions were raised when the electoral votes were counted, that gave rise to debates in the House of Representatives and on one occasion subsequently in the Senate. In the House, Francis Thomas of Maryland and Samuel Sh.e.l.labarger of Ohio took part. Both were able men. Thomas had the qualities of an orator but he spoke so infrequently that his power was not generally appreciated. On that occasion he spoke exceedingly well, but the attendance was small, an evening session having been a.s.signed for debate upon that subject.

Mr. Sh.e.l.labarger was logical and effective but he was dest.i.tute of imagination utterly. At the bar since his retirement from politics he has enjoyed a large practice, but, unfortunately, as it appears to me, he has preserved the style of speaking which he acquired upon the stump and in Congress. A skillful speaker must adapt himself to the circ.u.mstance and to his audience. A stump speech, a speech in the House of Representatives, a speech in the Senate, an argument to a court, an argument to a jury, should each be framed on a model of its own. Neither style will answer for any other. The degree of variance may not be considerable and with a well disciplined person the change may not be apparent. Mr. Webster adapted himself to every audience, but the changes were slight. Yet there were changes. He was not over solemn in the Supreme Court, and he was never boisterous when he addressed the mult.i.tude.

As far as I recollect my positions and arguments in the debates upon the counting of the electoral votes, I now discard all I said then.

My present conclusion is that upon a reasonable construction of the Const.i.tution there is no occasion for legislation or for an amendment to the fundamental law. The Vice-President or the President of the Senate is the president of the convention. He carries into the chair the ordinary powers of a presiding officer. He rules upon all questions that arise. He may and should rule upon the various certificates that are sent up by the several States. If, in any case, his ruling is objected to, the two Houses separate, and each House votes upon the question:--"Shall the ruling of the Chair stand, etc."

If the Houses divide, the ruling is sustained. The president and one House are a majority. The decision is in accordance with our system of government. The suggestion that the president or that the Houses may act under the influence of personal or political prejudice, may, with equal force, be urged against any scheme that can be devised. The counting of the electoral votes must be left in the hands of men, and the Const.i.tution has given us all the security that can be had that the decision will be honestly made. The president of the convention and the members of the Houses are bound by oath as solemnly as are the judicial tribunals of the country. A judge is only a man, and he is subject to like infirmities with other men. It is a wise feature of our system that the courts have no voice in the political department of our Government. The presidential office should never be in the control of the judicial branch of the Government.

[* Letter of the Honorable Thomas B. Bryan.]

x.x.x THE AMENDMENTS TO THE CONSt.i.tUTION

I had no part in the preparation of the Thirteenth Amendment to the Const.i.tution, nor any part in its pa.s.sage through the House other than to give my vote in its favor. The Amendment resolution was pa.s.sed by the Thirty-eighth Congress at its last session and by the aid of Democrats. The elections of 1864 had resulted in a two-thirds majority and it was therefore certain that the resolution would be agreed to by the next House. Hence there was less inducement for the Democrats to resist its pa.s.sage by the Thirty-eighth Congress. A small number of Democrats favored the measure. English of Connecticut and Ganson of New York were of the number. There were others also whose names I do not recall. At the time of the contest a rumor was abroad that James M. Ashley, of Ohio, was engaged in making arrangements with certain Democrats to absent themselves from the House when the vote was taken.

Several were absent--some were reported in ill health. Mr. Ashley was deeply interested in the pa.s.sage of the resolution and it was believed that he made pledges which no one but the President could keep. Such was the exigency for the pa.s.sage of the resolution that the means were not subjected to any rigid rule of ethics.

The Fourteenth Amendment had its origin in a joint committee of fifteen of which Mr. Fessenden of Maine was chairman. A record of its proceedings was kept which was printed recently by order of the Senate. From that report it appears that I proposed an amendment for conferring the right to vote upon the freedmen of the State of Tennessee. As far as I know that was the first time the proposition was made in connection with the proceedings of Congress. The committee did not concur in the proposition. Indeed the time had not come for decisive action in that direction. The motion was made in the committee the 19th day of February, 1866, when the admission of the State of Tennessee into the Union was under consideration. The motion was in these words: "Said State shall make no distinction in the exercise of the elective franchise on account of race or color."

The motion was lost by the following vote:

Yeas: Howard, Stevens, Washburne, Morrill, Boutwell.

Nays: Harris, Williams, Grider, Bingham, Conkling, Rogers.

Absent: Fessenden, Grimes, Johnson, Blow.

The 16th day of April Senator Stewart, of Nevada, came before the committee in support of a similar proposition that he had introduced in the Senate April 7.

In January, 1866, a bill was under discussion in the House of Representatives for the establishment of a government in the District of Columbia. Mr. Hale of New York moved amendments by which the right of suffrage by negroes would be limited to those who could read and write, to those who had performed service in the army or navy or who possessed property qualifications. The amendment was defeated. My views were thus stated in one of the very small number of my speeches that have had immediate influence upon an audience or an a.s.sembly:

"I am opposed to the instructions moved by the gentleman from New York, because I see in them no advantage to anybody, and I apprehend from their adoption much evil to the country. It should be borne in mind, that, when we emanc.i.p.ated the black people we not only relieved ourselves from the inst.i.tution of slavery, we not only conferred upon them their freedom, but we did more; we recognized their manhood, which, by the old Const.i.tution and the general policy and usage of the country, had been, from the organization of the Government until the Emanc.i.p.ation Proclamation, denied to all the enslaved colored people.

As a consequence of the recognition of their manhood, certain results follow, in accordance with the principles of the Government; and they who believe in this Government are, by necessity, forced to accept those results as a consequence of the policy of emanc.i.p.ation which they have inaugurated, and for which they are responsible.

"But to say now, having given freedom to the blacks, that they shall not enjoy the essential rights and privileges of men, is to abandon the principle of the Proclamation of Emanc.i.p.ation, and tacitly to admit that the whole emanc.i.p.ation policy is erroneous.

* * * "What are the qualifications suggested? They are three. First and most attractive, service in the army or navy of the United States.

I shall have occasion to say, if I discuss, as I hope to discuss, the nature and origin of the right of voting, that there is not the least possible connection between service in the army and navy and the exercise of the elective franchise,--none whatever. These men have performed service, and I am for dealing justly with them because they have performed service. But I am more anxious to deal justly by them because they are men. And when it is remembered, that, for months and almost for years after the opening of the rebellion, we refused to accept the services of colored persons in the armies of the country, it is with ill grace that we now decline to allow the vote of any man because he has not performed that service.

"The second is the property qualification. I hope it is not necessary in this day and this hour of the Republic to argue anywhere that a property qualification is not only unjust in itself, but that it is odious to the people of the country to a degree which cannot be expressed. Everywhere, I believe, for half a century, it has been repudiated by the people. Does anybody contemplate such a qualification to the elective franchise, in the case of black people or white?

"And next, reading and writing, or reading as a qualification, is demanded; and an appeal is made to the example of Ma.s.sachusetts. I wish gentlemen who now appeal to Ma.s.sachusetts would often appeal to her in other matters where I can more conscientiously approve her policy. But it is a different proposition in Ma.s.sachusetts as a practical measure.

"When, ten years ago, this qualification was imposed upon the citizens of Ma.s.sachusetts, it excluded no person who was then a voter. For two centuries, we have had in Ma.s.sachusetts a system of public instruction, open to the children of the whole people without money and without price. Therefore all the people there had had opportunities for education. Why should the example of such a State be quoted to justify refusing suffrage to men who have been denied the privilege of education, and whom it has been a crime to teach?

* * * "The negro has everywhere the same right to vote as the white man, and I maintain still further, that, when you proceed one step from this line, you admit that your government is a failure. What is the essential quality of monarchical and aristocratic governments?

Simply that by conventionalities, by arrangements of conventions, some persons have been deprived of the right of voting. We have attempted to set up and maintain a government upon the doctrine of the equality of men, the universal right of all men, to partic.i.p.ate in the government. In accordance with that theory, we must accept the ballot upon the principle of equality. It is enjoyed by the learned and un- learned, the wise and the ignorant, the virtuous and the vicious.

"The great experiment is going on. If, before the war, any man in this country was disposed to undervalue a government thus conducted, he should have learned by this time the wisdom and strength of a government which embraces and embodies the judgment and the will of the whole people. If the negroes of the South, four million strong, had been endowed with the elective franchise, and had united with the white people of that region in the work of rebellion, your armies would have been powerless to subdue that rebellion, and you would to-day have seen your territory limited by the Potomac and the Ohio.

* * * "We are to answer for our treatment of the colored people of this country; and it will prove in the end impracticable to secure to men of color civil rights, unless the persons who claim those rights are fortified by the political right of voting. With the right of voting, everything that a man ought to have or enjoy of civil rights comes to him. Without the right to vote he is secure in nothing. I cannot consent, after all the guards and safeguards which may be prepared for the defence of the colored men in the enjoyment of their rights,--I cannot consent that they shall be deprived of the right to protect themselves. One hundred and eighty-six thousand of them have been in the army of the United States. They have stood in the places of our sons and brothers and friends. Many of them have fallen in the defence of the country. They have earned the right to share in the government; and, if you deny them the elective franchise, I know not how they are to be protected. Otherwise you furnish the protection which is given to the lamb when he is commended to the wolf.

"There is an ancient history that a sparrow pursued by a hawk took refuge in the chief a.s.sembly of Athens, in the bosom of a member of that ill.u.s.trious body, and that the senator in anger hurled it violently from him. It fell to the ground dead; and such was the horror and indignation of that ancient but not Christianized body,-- men living in the light of nature, of reason,--that they immediately expelled the brutal Areopagite from his seat, and from the a.s.sociation of humane legislators.

"What will be said of us, not by Christian, but by heathen nations even, if, after accepting the blood and sacrifices of these men, we hurl them from us, and allow them to become the victims of those who have tyrannized over them for centuries? I know of no crime that exceeds this; I know of none that is its parallel; and, if this country is true to itself, it will rise in the majesty of its strength, and maintain a policy, here and everywhere, by which the right of the colored people shall be secure through their own power,--in peace, the ballot; in war, the bayonet.

"It is a maxim of another language, which we may well apply to ourselves, that, where the voting-register ends, the military roster of rebellion begins; and, if you leave these four million people to the care and custody of the men who have inaugurated and carried on this rebellion, then you treasure up, for untold years, the elements of social and civil war, which must not only desolate and paralyze the South, but shake this government to its very foundation."

It was impossible in 1866 to go farther than the provisions of the Fourteenth Amendment. That amendment was prepared in form by Senators Conkling and Williams and myself. We were a select committee on Tennessee. The propositions were not ours, but we gave form to the amendment. The part relating to "privileges and immunities" came from Mr. Bingham of Ohio. Its euphony and indefiniteness of meaning were a charm to him. When the measure came before the Senate Mr. Sumner opposed its pa.s.sage and alleged that we proposed to barter the right of the negroes to vote for diminished representation on the part of the old slave States in the House and in the electoral college; while in truth the loss of representation was imposed as a penalty upon any State that should deprive any cla.s.s of its adult male citizens of the right to vote. Upon this allegation of Mr. Sumner the resolution was defeated in the Senate. There were then in that body a number of Republicans from the old slave States and over them Mr. Sumner had large influence. The defeat of the amendment was followed by bitter criticisms by the Republican press and by Republicans. These criticisms affected Mr. Sumner deeply and he then devoted himself to the preparation of an amendment which he could approve. While he was engaged in that work I called upon him and he read seventeen drafts of a proposition not one of which was entirely satisfactory to himself, and not one of which would have been accepted by Congress or the country. The difficulty was in the situation. Upon the return of the seceded States their representation would be increased nearly forty votes in the House and in the electoral colleges while the voting force would remain in the white population. The injustice of such a condition was apparent, and there were only two possible remedies.

One was to extend the franchise to the blacks. The country--the loyal States--were not then ready for the measure. The alternative was to cut off the representation from States that denied the elective franchise to any cla.s.s of adult male citizens. Finally Mr. Sumner was compelled to accept the alternative. Some change of phraseology was made, and Mr. Sumner gave a reluctant vote for the resolution.

Aside from the debates on the const.i.tutional amendment there were serious difficulties among Republicans in regard to the exercise of the right of suffrage by the negroes.

Previous to the year 1868 there was a majority of Republicans who would have imposed a qualification, some of service in the army or navy, some of property and some of education. It was with great difficulty that the scheme of limitation was resisted in regard to the District of Columbia. As to the Democrats they could always be counted upon to aid in any measure which tended to keep the negroes in a subordinate condition. This of the majority--there was always a minority, usually a small one, who were ready to aid in the elevation of the negro when his emanc.i.p.ation had been accomplished. I do not recall the name of one man who favored emanc.i.p.ation as a policy and adhered to the Democratic Party. When a man reached the conclusion that the negroes should be free, he could not do otherwise than join the Republican Party. At the time of the admission of Tennessee, July, 1866, there were only twelve men in the House of Representatives who insisted upon securing to the negro the right to vote. A larger number favored the scheme, but they yielded to the claim of that State to be admitted without conditions. At that time the power of the President was not impaired seriously, and his wishes were heeded by many. There was also an understanding that the State would concede the right upon terms not unreasonable.

Next to the restoration of the Union and the abolition of slavery the recognition of universal suffrage is the most important result of the war. It has its evils but they are incidental, and their influence is limited to times and places, while the advantages are universal and enduring. Universal suffrage is security for universal education. It is security against chronic hostility to the Government and security against the manifestation of a revolutionary spirit among the people.

They realize that with frequent elections, the evils of administration may be corrected speedily. By a similar though slower process the fundamental law may be changed. Hence it is in this country until recently there was no difference of opinion as to the wisdom of the system of government under which we are living. The existing diversity of opinion will soon disappear. If suffrage were limited there would be a body of discontented people ready to seize upon any pretext that promised a change. In the present condition of our system the only danger is due to the forcible or fraudulent withholding of the right from those who are ent.i.tled to enjoy it. This condition of things must soon end. The safety of a state is yet further secured by frequent elections. The project to extend the Presidential term is full of danger. If the term were six or ten years the presence of an offensive or dangerous man in the office would provoke a revolution, or cause disturbances only less disastrous to business and to social and domestic comfort. In the little republic of Hayti there have been not less than seventeen revolutions in the hundred years of its existence and they were due in a large degree to the fact that the Presidential term is seven years.

The various propositions submitted to the House of Representatives for securing the right to vote to all the male adult citizens of the United States were referred to the Judiciary Committee of which I was a member. Among them was one submitted by myself. In the committee they were referred to a sub-committee consisting of myself, Mr. Churchill of New York, and Mr. Eldridge of Wisconsin. Mr. Eldridge as a Democrat was opposed to the measure, and he took no interest in preparing the form of an amendment. Churchill and myself were fellow- boarders and we prepared and agreed to an amendment in substance that which was adopted finally and which in form was almost the same. When I reported the amendment to the committee not one word was said either in criticism or commendation, nor was there a call for a second reading. After a moment's delay Mr. Wilson, the chairman, said:--"If there is no objection Mr. Boutwell will report the amendment to the House." There was no objection and at the earliest opportunity I made the report--that is, I reported the resolution for amending the Const.i.tution. Mr. Wilson made a speech which I have not since read, but which made an impression upon my mind that he was opposed to the measure, or at least had doubts about the wisdom of urging the amendment upon Congress and the country.

The resolution pa.s.sed the House as it was reported by the committee.

When it was taken up in the Senate Mr. Sumner, who was opposed to the resolution, a.s.sailed it with an amendment that would have been fatal if his lead had been followed by the two Houses. He proposed to insert after the words "to vote" the words "or hold office." At that time he was a recognized leader upon all matters relating to the negro race, and his standing with that race was such that the Republican senators from the slave States were obedient to his wishes. His amendment was adopted by the Senate. In presence of the fact that Mr. Sumner was opposed to any amendment of the Const.i.tution upon the subject and he proposed to rely upon a statute, it is difficult to explain his conduct upon any other theory than that he intended to defeat the measure either in Congress or in the States. He had claimed when the Fourteenth Amendment was pending that a joint resolution would furnish an adequate remedy and protection. His proposition was in these words: "There shall be no oligarchy, aristocracy, caste or monopoly invested with peculiar privileges and powers and there shall be no denial of rights, civil or political, on account of color or race anywhere within the limits of the United States or the jurisdiction thereof: but all persons therein shall be equal before the law, whether in the court room or at the ballot-box. And this statute made in pursuance of the Const.i.tution shall be the supreme law of the land, anything in the const.i.tution or laws of any State notwithstanding."

This resolution is a sad impeachment of Mr. Sumner's quality as a lawyer and it is an equally sad impeachment of his sense or of his integrity as a man that he was willing to risk the rights of five million persons upon a statute whose language was rhetorical and indefinite, a statute which might be repealed and which was quite certain to be p.r.o.nounced unconst.i.tutional by the Supreme Court.

Upon the return of the resolution and amendment to the House, my own position was an embarra.s.sing one. I was counted as a radical and in favor of securing to the negro race every right to which the white race was ent.i.tled. My opposition to the Senate amendment seemed to place me in a light inconsistent with my former professions. However, I met the difficulty by an argument in which I maintained that the right to vote carried with it the right to hold office. That in the United States there were only a few exceptions, and those were exceptions under the Const.i.tution.

Finally, the House, by a reduced vote refused to concur with the amendment of the Senate. It was at this crisis that Wendell Phillips wrote an article in the _Anti-Slavery Standard_ over his own name in which he said in substance and in words, that the House proposition was adequate and that it ought to be accepted by the Senate. His name and opinion settled the controversy. The Southern Republicans deserted Mr. Sumner feeling that the opinion of Phillips was a sufficient shield. A slight change of phraseology was made and the proposition of the House became the Fifteenth Amendment to the Const.i.tution of the United States.

I wrote a letter of acknowledgment to Mr. Phillips in the opinion that he had saved the amendment. At that time the prejudice against negroes for office was very strong in Ohio, Indiana, Illinois and in varying degrees the prejudice extended over the whole North.

The enjoyment of the right to vote has not been fully secured to the negro race, but no one has appeared to deny his right to hold office.

Indeed, the Democratic Party as well as the Republican Party has placed him in office, both by election and appointment. Thus has experience shown the folly of Mr. Sumner's amendment.

That Mr. Sumner should have been willing to risk the rights of the whole negro race upon a statute whose const.i.tutionality would have been questioned upon good ground, and which might have been repealed, is a marvel which no one not acquainted with Mr. Sumner can comprehend. First of all, though he was learned, he was not a lawyer.

He was impractical in the affairs of government to a degree that is incomprehensible even to those who knew him. He was in the Senate twenty-three years and the only mark that he left upon the statutes is an amendment to the law relating to naturalization by which Mongolians are excluded from citizenship. The object of his amendment was to save negroes from the exclusive features of the statute which was designed to apply only to the Chinese. His amendment made plain what the committee had designed to secure. He was a great figure in the war against slavery and as a great figure in that war he should ever remain.

The Fourteenth Amendment saved the country from a series of calamities that might have been more disastrous even than the Civil War. The South might, under the Fourteenth Amendment, grant to the negroes the right to vote but upon conditions wholly impracticable and thus have secured their full representation in Congress at the same time that the voting power was retained in the hands of the white race. Or they might have denied to the negro race the right to vote and submitted to a loss of representation. Such a policy would have given the whole country over to contention and possibly in the end, to civil war. The discontented and oppressed negroes, increasing in numbers and wealth, would have demanded their rights ultimately, even by the threat of force, or by the use of force they would have secured their rights. In the North there would have been a large body of the people, only less than the whole body, who would have sympathized with the negroes and who, in an exigency would have rendered them material aid. The Dorr War in Rhode Island and the struggles in Kansas, are instances of the danger of attempting to found society or to maintain social order upon an unjust or an unequal system for the distribution of political power.