134

JOHN B. HENDERSON.

The fate of the amendment in the Senate was quite clear from the first, but an effort was now made to amend the resolution so as to exclude negroes from places of trust or profit under the United States, and to make them ineligible to civil or military offices; another, to exclude from its operation slaves in States which forbade free negroes a residence;2 a third, to provide for compensation for slaves; and a fourth, to secure the distribution of the freedmen, after the amendment should take effect, among the States and territories, according to the proportion which the white population of each bore to the aggregate population of African descent; but none of these suggestions received a half dozen votes.*

No less interesting and significant was the opinion of Senator Henderson of Missouri. The war, he said, had wrought a great change in the opinions of Union men in the slaveholding States. Before the war, it was generally admitted that the Union could not continue unless the whole subject of slavery was left to the States, a notion deriving its chief strength from the consideration which the North felt toward the Union men of the South, who wished slavery to continue. All this had been changed. Discarding the question of fixing responsibility for the war, whether on the North or on the South, the civilized world, he said, believed that slavery was the real cause. Under a supposed necessity for Union, a great wrong had been admitted originally into the organic law. There were but two sides to the question before the country: Union

1 Proposed by Garrett Davis of Kentucky; rejected 32 to 5. 2 Proposed by the same, but only four members seconded the call for yeas and nays.

3 Proposed by N. N. Powell of Kentucky, but supported only by himself and his colleagues; nays 34.

4 Proposed by Senator Davis of Kentucky, but only three members answered the call for yeas and nays,

without slavery, or the immediate and unconditional acknowledgment of the Southern Confederacy. The price of the Union must be slavery abolition. The larger proportion of the Union men in the border States were in favor of it. Those there opposed to it would at once acquiesce, because it would be law. Union men in the seceded States would rejoice, for it was only on an antislavery platform that they hoped for an ascendency in their State governments. The freedom of the slave was the logic of events and no party could withstand its irresistible force. The cost of the war, in life and treasure, demanded the amendment. The whole effort of Congress, from the opening of the struggle, had been to devise ways and means to cripple slavery. The determination to abolish it, in some way constituted the strongest reason for abolishing it legally and without violation to rights. It was absurd to insist that Congress could abolish slavery in a territory but not in a State.

The Senate was acting upon the idea that the States were all in the Union. It refused to do business without the presence of thirty-six Senators, and a majority of all, if the Senate was full. But even admitting that the seceding States were out of the Union, a proposition to amend the Constitution might be proposed by two-thirds of a bare majority of the members elected to the two Houses of Congress, and be ratified by eighteen States, a bare majority of the whole number; "thus the Constitution would be amended without consulting a State in the Union to be affected by it, or a citizen of any such State." If they were in the Union and the slavery question were to be settled by an amendment which had received the sanction of twenty-seven States, it would be settled beyond all judicial cavil. The public mind would rest in the conviction that the evil was abolished. To abolish it

in any other way must be attended with doubts as to its legality. If, as had been said, some of the States were out of the Union, and now had two governments, Congress could recognize the true one. It had been said that most evil consequences would follow abolition, but fear of this should not prevent an act of simple justice. Whatever these evils might prove to be, they were not now the problem to be solved. The only means for bringing the war to a speedy end and restoring the Union was by an amendment abolishing slavery, and this rested with Congress and the States.1 The long, able and eloquent speech of the Missouri Senator was a plea for peace, for which the abolition amendment would be a small price.

But of all the speeches to which the Senate listened, none was more learned than that delivered by Charles Sumner, on the eighth of April,2 which in spirit and style was like his earlier philippics against slavery. Of greatest immediate interest was his plea for the adoption of the phraseology, that "all persons are equal before the law." He cited the first constitution of France, which proclaimed this immortal doctrine, as a precedent which the people of the United States might well follow. He dwelt upon the history of the French people, who, in their later constitutions of government, had proclaimed the same great doctrine. "It will be felt," said he, "that this expression,—‘equal before the law' gives precision to

1 Globe, pp. 1459-1465. April 7, 1864.

2 Globe, pp. 1479-1483.

3 September 3-13. Art. Ler. Les hommes naissent et demeurent libres et égaux en droits. Helie. Les Constitution, De La France, p. 268; 24 Juin, 1793. Art. Ler. 3, Tous les hommes sont égaux par la nature et devant la loi. Id., p. 376. Charte Constitutionelle du 4, Juin, 1814. Art. Ler. Les Français sont égaux devant la loi, quels que soient d'ailleurs leurs titres et leurs rangs. Id., p.

that idea of human rights which is enunciated in our Declaration of Independence."1 Sumner concluded his plea to substitute the French clause for the language of the Jeffersonian ordinance, with the request that if the language of the Ordinance of 1787 was to be followed, it should be followed exactly.2 The Senator's manner was not always free from hauteur; it was not free from it

now.

The language of the amendment was of the highest importance. This was pointed out cogently and firmly by Senator Howard, of Michigan. It was immaterial, he said, whether the words proposed by the Senator from Massachusetts were, that all persons are "free" or are "equal" before the law. In a legal and technical sense that language was totally insignificant and meaningless as a clause of the Constitution. What effect would it have in law, or in courts of justice? The phrase "equal and free before the law" was unknown to our jurisprudence, and would apply equally to a man or to a woman. The language of the French constitution could not be made applicable to American conditions. Its original purpose, in 1791, was to abolish privileged classes; and to enable Frenchmen to reach positions of eminence and honor in the French government; but it was never intended as a means of abolishing slavery. The Convention of 1794 abolished slavery by a separate decree, which expressly put an end to it. Senator Howard preferred to dismiss all reference to French constitutions or French codes, and go back to the good old Anglo-Saxon language 1 Globe, 1483.

2 The language of the ordinance, Article 6th, is, "There shall be neither slavery or involuntary servitude in the States or Territories, otherwise than in punishment of crime whereof the parties shall have been duly convicted." Preston's Documents, p.

138

THE VOTE IN THE SENATE.

employed by our Fathers in the Ordinance of 1787, for an expression which had been adjudicated upon repeatedly, and gave a phrase peculiarly near and dear to the people of the Northwestern territory.1 The clause of the Ordinance of 1787 was well understood by the people of the United States.

The roll was called, and the result was the adoption of the joint resolution by a vote of thirty-eight to six.2 Among those concurring were two Democrats, Reverdy Johnson of Maryland, and James W. Nesmith of Oregon, so that the resolution was carried by more than the two-thirds required by the Constitution.*

3

Seven weeks passed before the joint resolution was brought up in the House, and its treatment there was in contrast to its treatment in the Senate. No discussion preceded the vote cast on the thirty-first of May, which though amply large enough to save the resolution from rejection, lacked many votes of being the requisite number for adopting it. But the vote, though foreshadowing the fate of the amendment at this session, indicated that it might be discussed. Discussion, however, was brief. It was said that the resolution struck at the original compact between the States; that it was to be forced

1 Globe, pp. 1488-1489.

2 Globe, p. 1490.

3 The title was amended to read: "A Joint Resolution Submitting to the Legislatures of the Several States a Proposition to Amend the Constitution of the United States." The six Senators voting in the negative were Messrs. Davis of Kentucky, Hendricks of Indiana, McDougall of California, Powell of Kentucky, Riddle of Delaware, and Saulsbury of Delaware.

4 Nicolay and Hay's Lincoln, X, 77.

5 The vote upon the resolution was 55 yeas and 7 nays. Globe, May 31, 1864, p. 2612. The House consisted at this time of 102 Republicans, 75 Democrats, and 9 Unionists from the border States.