THE POWER DUTY OF CONGRESS, m RESPECT TO SUFFRAGE. BY ISRAEL WASHBURN, JR. [AwH tht Universaltst Quarterly /(»• January, 1869.] BOSTON 18 69. THE POWER DUTY OF CONGRESS, IN RESPECT TO SUFFRAGE. BY ISRAEL WASHBURN, JR. » » ^ a > : [Fivm the Universcdist Quarterly for January, 1869.] BOSTON: 18 69. Ws3 THE POWER AND DUTY or CONGRESS IN RESPECT TO SUFERAGE. The popular elections having placed the Legislative and Executive Departments of the government in the hands of the Republican party, it will be its duty to adopt measures for the completion of the work of reconstruction at the earli- est practicable moment. There can be no shirking of respon- sibility, for these Departments will be in political agreement, and the need is palpable and urgent. Of these measures, one, it seems to us, is of supreme importance, for it underlies all the others. Until it shall have been adopted, no question touching the subject of recon- struction will allow itself to be adjusted and settled. We refer of course to the adoption of a just, republican, and con- stitutional rule of suffrage. In the nature of things, accept- able, permanent reconstruction can be built upon no other foundation, and no provision in this regard can be just or final which is not in its essential features impartial, and appli- cable to all the States alike. The existing reconstruction measures, so far as they affect the question of suffrage, touch but a portion of the States. To extend their operation to the other States by express constitutional amendment is impracti- cable, at least for years. And reconstruction cannot wait, nor can justice and peace — and they need not. Tliis most important, this vital question in the work of reconstruction and harmony, may be disposed of wisely and permanently by Congress (supposing it to l)e clothed with constitutional authority therefor), by the passage of a law to the effect that in no State shall there be made hereafter any discrimination between citizens on the ground of color or race, and that all distinctions or discriminations of this character shall be to all intents and purposes inoperative and void. We said that such a law would settle this question of suffrage wisely and .permanently: ivisely,wG believe, because it would provide a ivi224873 4 THE POWER AND DUTY OF CONGRESS uniform and republican basis of suffrage for all the States, and establish in the North, as in the South, in the loyal, as in the lately rebel, States, the rule of impartiality and justice. It would set at rest all agitation, not only in such States as Mississippi and Texas, such as Kentucky and Maryland, but, also, in such as Ohio, Pennsylvania, New Jersey, New York, and Connecticut, some of which show but little evidence of disposition or ability to adjust this question for themselves on a ])roper, republican basis. In all communities there is to be encountered, in dealing with this question, an element of ignorance, prejudice, and injustice, that can be overcome by the communities themselves, if at all, only by long and patient effort — by years of discussion and agitation. Perma- nently, because the States affected by the present reconstruc- tion measures would see that the rule demanded of them is made applicable to every other State as well. And they could not reasonably or decently object to a principle so just and proper in itself when applied to all the States — to those which had lost no rights througli treason or disloyalty, as well as to those which had lost their State organizations by their action in tlie rebellion. At the same time there can be little doubt that those loyal States which have not heretofore prac- tically recognized their obligations, under the Constitution of the United States, to adjust their regulations in respect to suf frage to the princijiles of republicanism (and whose neglects and failures in this matter have not as yet worked such prac- tical mischief and detriment as to call forth the interposition of Congress), would gladly and promptly accept and respect a law which would not only settle this question in accordance with what arc acknowledged to be the vital principles of republicanism, and with the theory of the government, but would remove it permanently from the arena of political con- troversy. Under the administration of a President so wise, prudent, just and firm as General Grant, the law would be executed so easily and judiciously that before the expiration of his term there would remain neither the power nor the inclination in any of the States to resist or disturb it. It IN RESPECT TO SUFFRAGE. 5 would come to be regarded as a part of the fixed, fundamen- tal policy of the government. And if at the expiration of General Grant's term there should be found in any of the States those who would repeal this law, if they had the power, they will consider and understand that men who have exer- cised the right of suffrage for four years, are not easily to be deprived of it. No man in his senses will believe that four millions of people who have enjoyed all the rights of citizen- ship for four years, can have the most vital of them all taken away in any country in which republicanism has a name to exist. And thus we arrive at the only serious matter of contro- troversy in regard to this question : Has Congress the power^ under the Constitution, to pass a law for the regulation of suf- frage in the States in cases where they have failed to make regu- lations themselves consistent with the requirements of that instru- ment, and with the fundamental idea of the government ? It would be a strange omission, indeed, if the framers of the Constitution, the organic law of a government founded upon the consent of the governed, had left with the several States the power in the last resort to overthrow that govern- ment by establishing conditions of suffrage which would change it to an oligarchy. As the State governments are so necessary to the working of the general government, the framers of the Constitution would have wrought with less than their usual prescience, if they had left it possible for the States to defeat so easily the operations and objects of the general government, as they might do if the power over elec- tions and suffrage had been left exclusively with the States themselves. Had it been so left, the States might prescribe regulations that would exclude half of the people from the right of suffrage, making their governments the closest of aristocra- cies. This would be State Rights with a vengeance. One State might be republican in its spirit and polity, another oli- garchical, and still another essentially monarchical ; and the general government would be but a confederation of these dissimilar and conflicting States, instead of a Union govern- 6 THE POWER AND DUTY OF CONGRESS ment, all the parts of which are harmonious and repiiMican. It would be virtual secession, for an anti-repulilican ^^tatc, althouo'h nominally in the Union, would not be of the Union. But there is no such omission. The danger which would result from clothing the States with the power to determine for themselves whether they would be republican, and which determination would be expressed in their laws touching the sources or elements of political power, or, in other words, regarding suffrage, was foreseen and thoroughly guarded against, as may be seen b}^ reference to the Constitution, Art. IV., Sec. 4, which is as follows : " The United States shall guarantee to every State in the Union a republican form of government, and shall ])rotect each of them against invasion ; and on application of the Legisla- ture, or of the executive, (when the Legislature cannot be convened) against domestic violence." Now, the Constitution of the United States, and constitu- tional laws of Congress, are the supreme laws of the land, to which State Constitutions and State laws must yield when inconsistent therewith. Congress has the power to carry into effect and make good the guaranty mentioned in Article lY. It is contained in Sec. 8, Art. I., wliich says Congress may " make all laws Avliich shall Ije necessary and proper for carrying into execu- tion the foregoing })owers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Here, then, appear two things : 1. The duty of the United States to guarantee a repu])]ican form of government to the several States ; and, 2. The power of Congress to execute this guaranty. Does a case arise for the exercise of this power when a State excludes from the suffrage adult freemen, born upon the soil, and who by the Constitution ^and the decision of the highest Court, are American citizens, for the reason that they are of a particular race, color, class, profession, or religious faith ? We affirm that it docs, and that this was the special direction to which this " gu uantee " was pointed. IN RESPECT TO SUFFRAGE. I How were State Governments expected to become anti-repub- lican except by changing tlie sources of political power, and how could this so readily be done as by laws regulating suf- frage ? The Constitution, in declaring that " the United States shall guarantee to every State in the Union a repub- lican form of government," aflirms, and secures the practical observance of, the doctrine of the Declaration of Indepen- dence, that " governments derive their just powers from the co7isent of the yoverned.'''' Can that be said to be a republican form of government which repudiates this normal principle of American republicanism, — which, instead of leaving tlie right to govern with the people, ordains that it shall be exer- cised by a part only of the people — by men of blue eyes, or yellow hair, or white skins only — by clergymen, or lawyers, or merchants — by men of Saxon descent, or Celtic, and no others ? Is that a republican form of government, one resting upon the consent of the governed, in which Jews, or Cath- olics, or Presbyterians, naturalized foreigners, or Colored native born citizens, have no voice ? Would it not be clearly the government of a caste, class, or race — in other words, an aristocracy ? Is there any doubt that if a State should persist in maintaining a Constitution which in a vital respect was anti-republican, that excluded loyal and good citi- zens from the exercise of the right of suffrage upon grounds of caste and color, merely, or sliould transfer political power from the majority to the minority, to a few families, to a directory or dictatorship, the exigency would arise in which intervention would become the immediate duty of the United States ? What we understand to have been the intention of the Con- vention which formed the Constitution, and what we under- stand to be the effect of that instrument, in regard to elec- tions and suffrage, is expressed in the following propositions : 1. The power "to regulate elections, including the qualifica- tions of electors, is left primarily with the States, in the choice of federal and State officers alike. But 2. There are qualifications of, and limitations to, this 8 THE POWER AND DUTY OF CONGRESS power. For example, the States cannot prescribe different qualifications for electors of Representatives in Congress from those of Representatives in the most numerous branch of the State Legislatures, and these electors must be in either case " the jjeople of the several States," and not portions or classes of the people, only ; and that whenever the cardinal principle of republican government is violated by the States in their laws concerning the qualifications of electors, whether of members of Congress, of electors of President and Vice Pres- ident, or of State officers by whom the political power of the State is to be exercised, and suffrage is limited to particular classes, orders, or races of men. Congress has the power to modify, change and correct these regulations so far as may be necessary to make them consistent with the fundamental idea of a " republican form of government," In view of the provisions of the Constitution already cited, and of Sections 2 and 4 of Article I., we do not see how any other construction is admissible or possible. Certainly no other is consistent with the terms of the Constitution, its una- voidalDle implications, the necessities of the case, the debates in the several Conventions which acted upon it, and the contemporaneous expositions of the Federalist. Sections 2 and 4 of Article I., referred to above, are as follows : Art. I. Sec. 2. The House of Representatives shall be composed of members chosen every second year ly the people of the several States ; and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature. Art. I. Sec. 4. The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators. These sections, with those before quoted, embrace all the provisions of the Constitution that touch the question before us, and we submit that they fully bear out what has been said in respect to the construction of that instrument demanded IN RESPECT TO SUFFRAGE. V by its terms and implications. We now propose to show that our statements in respect to the testimony of the Federalist, and of the delmtes, are also sustained by the record. In these we shall find it constantly assumed and uniformly affirmed, that the power over elections is m the first instanee in the States, but that it is subject to the control and revision of the General Government (i. e. of Congress) in certain cases which we have already pointed out. These papers and debates are all consistent with themselves and with each other upon this hypothesis, but are utterly irreconcilable with any other. Mr. Madison says, in the Federalist — paper No. 52 — " The definition of the rights of suffrage is justly regarded as a fundamental article of republican government.''^ If so, it follows that, as the United States is required to guarantee republican governments to the States, whenever in tliis " fun- damental article " of suffi-age the States have made unconsti- tutional provisions, their work must be corrected by the for- mer. No other conclusion seems possible ; and this is entirely consistent with all the essential rights of the States, among which is the right of initiating the law in respect to suffrage. After observing that the provisions of the Consti- tution will be safe for the United States, Mr. Madison adds, " and it cannot be feared the people of the States will alter this part of their Constitutions in such mannei as to abridge the rights secured to them by the federal Constitution." What were these rights ? There were none more important or val- uable than that to a republican government. Should a State at any time alter its Constitution so as to abridge this right, and make its government anti-republican, is it possible to con- ceive that Mr. Madison understood that tliere was no remedy ? In paper No. 57, by Mr. Madison, we have this remarkable language : " Let me now ask, what circumstance there is in the con- stitution of the House of Representatives that violates the principles of republican government, or favors the elevation of 10 THE POWER AND DUTY OP CONGRESS the few on the ruins of the many? Let me ask, whether every circumstance is not, on the contrary, strictly conibrmablc to these princii)les, and scrupulously impartial to the rigltts and pretensions of every class and description of citizens ? Who are to be the electors of the federal representatives ? Not the rich, more than the poor ; not the learned, more than the ignorant ; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious for- tune. The electors are to be the great body of the 2J<'ople of the United States. They are to be the same who exercise the right in every State of electing the correspondent branch of the Legislature of the State." The electors of Representatives in Congress and of the State Representatives are to be the same persons, and they will be " the great body of the people of the United States." In the light of this extract, can it be doubted that a repub- lican government, as understood by Mr. Madison, was one founded upon the people, and without any aristocratic distinc- tions, or that if the government of any State was otherwise founded, the power existed in the general government to make it republican ? The views of Alexander Hamilton are quite as explicit and emphatic as those of Mr. Madison. We make the following extract from the Federalist^ No. 69 : " It will, I presume, be as readily conceded, that there were only throe ways in which this power over elections could have been reasonably organized ; that it must either have been lodged wholly in the National Legislature, or wholly in the State Legislatures, or primarily in the latter, and ultimately in the former. The last mode has with reason been preferred by the convention. They have submitted the regulation of elections for the federal government in the frst instance, to the local administrations ; which, in ordinary cases, and where no improper views prevail, may be both more conven- ient and more satisfactory ; but they have reserved to the natio7ial authority a right to interfere, whenever extraordinary circumstances might render that interposition necessary to its safety. Nothing can he more evident, than that an exclusive power of regulating elections for the national government, in the IN EESPECT TO SUFFRAGE. 11 hands of the State Legislatures, woiikl leave the existence of the Union entirely at their mercy. They could at any moment iinnihilate it, by neglecting to provide for the choice of persons to administer its affairs. It is to little purpose to say, that a neglect or omission of this kind would not be likely to take place. The constitutional impossibility of the thing, without an equivalent for the risk, is an unansweral)lv3 objection. Nor has any satisfactory reason been yet assigned for incurring that risk. The extravagant surmises of a dis- tempered jealousy can never be dignified with that character. If we are in humor to presume abuses of power, it is as fair to presume them on the part of the State governments as on ' the part of the general government. A7id as it is more conso- nant to the rules of a just theory to entrust the Union with the care of its otvn existence, than to transfer that care to any other hands ; if abuses of ^jotver are to be hazarded on the one side or on the other, it is more rational to hazard them ivhere the 'poioer ivould naturally be placed, than ivhere it would unnaturally be placed.^' It will not fail to be observed how impossible it is to recon- cile some of the most weighty of the foregoing sentences with the idea that in no case has Congress power over the question of suffrage. Nor will it fail to be seen how easily all the lan- guage asserting or implying the existence of this power in the States may be harmonized with the authority of Congress as herein claimed to exist — to wit — to revise and control the action of the States in respect to elections and suffrage when- ever it may be in derogation of the requirements of the Con- stitution of the United States. To the authority of the quotations already made we have to add one of singular force and pertinency, and one, which, we submit, ought to close all controversy on this question. It is from a speech by Mr. Madison in the Virginia Convention, when the adoption of the federal Constitution was being con- sidered by that body. We quote from page 261 of the Debates. Mr. Monroe wished that the honorable gentleman (Mr. Madison), who had been in the Federal Convention, would give information respecting the clause concerning elec- tions. Mr. Madison having stated that the reason for except- 12 THE POWER AND DUTY OF CONGRESS iiig the place of choosing Senators was, that otherwise the general government might compel tlic State Legislatures to meet in a different place than that of their usual sessions, then added : " "With respect to the other point, it was thought that the regulation of time, place and manner of electing the Repre- sentatives should be uniform throughout the continent. Some States might regulate the elections on the principles of equal- ity, and others might regulate them otherwise. The diversity would he obviously unjust. Elections are regulated tmequally now in some of the States, particularly in South Carolina, with respect to Charleston, which is represented by thirty members. Should the jjeople of any State hy any means he deprived of the right OF suffrage, it was propefi' that it shoidd he remedied hy the general government. It was found impossi- ble to fix the time, place and manner of the election of Rep- resentatives in the Constitution. It was found necessary to leave the regulation of these in the first place to the State governments, as being best acquainted with the situation of the people, subject to the control of the general govern- ment, in order to enable it to produce uniformity and prevent its own dissolution. And considering the State government and general government as different bodies, acting in different and independent capacities, it was thought the particidar reg- ulations should be submitted to the former, and the genei-al regulations to the latter. Were they exclusively under the control of the State governments, the general government might easily be dissolved. But if they he regulated properly by the State Legislatures, the Congressional control will very probably never be exercised." The debates in the conventions of other States furnish very conclusive evidence that Mr. Madison's interpretation, in the Virginia Convention, of the Constitution, was everywhere accepted as the true one. In the Massachusetts Convention, Mr. Cabot said : " A State Legislature, under the influence of their Senators who would have their fullest confidence, or under the influ- ence of ambitious or popular characters, or in times of popu- lar commotion, and when faction and spirit run high, would introduce such regulations as would render the rights of the IN RESPECT TO SUFFRAGE. people insecure and of little ralne. They might make an miequal and partial division of the States into districts for the election of Representatives, or they might even disqualify one- third of the electors. Without these powers in Congress the people can have no remedy. But the fourth section provides a remedy, a controlling power in a Legislature composed of Senators and Representatives of twelve States, without the infivience of our commotions and factions, who will hear impartially, and preserve and restore to the peoj^le their equal and sacred rights of election." The words which are italicised show that Mr. Cabot under- stood the authority of Congress to extend to the qualifications of electors, as well as to the time, place and mere details of elections. In the New York Convention, Hon. Mr. Morris suggested " that, so far as the people, distinct from their Legislatures, were concerned in the operation of the Constitution, it was absolutely necessary that the existence of the General Gov- ernment should not depend for a moment on the will of the State Legislatures. The power of perpetuating the govern- ment ought to belong to their federal Representatives ; other- wise, the rights of the people would be essentially abridged.'* In the Convention of North Carolina, Governor Johnston said: ^^ I conceive that Congress will have no other power than the States had. The States, with regard to elections, must be governed by the articles of the Constitution ; so must Con- gress." Mr. Davie, in the same Convention, observed : " It would have been a solecism to have a government without any means of self-preservation. The Confederation is the only instance of a government without such means, and is a nerveless sys- tem, as inadequate to every purpose of government as it is to the security of the liberties of the people of America. When the councils of America have this power over elections, they can, in spite of any faction in any particular State, give the people a representation." Quoting Montesquieu, Mr. Wilson of Pennsylvania, in the Convention of that State, Dec. 4, 1787, said : " In a democ- 14 THE POWER AND DUTY OF CONGRESS racy the people are in some respects the sovereign, and in others the subject. There can be no exercise of sovereignty but by their suffrages, which are tlieir own will. Now, the sovereigii's will is the sovereign himself. The laws, there- fore, which establish the right of suffrage are fundamental to this government. And, indeed, it is as important to regulate in a republic in what manner, b^/ whom, to whom, and con- cerning what, suffrages are to be given, as it is in a monarchy to know who is the prince, and after what manner he ought to govern." And then he added : " In this system it is declared that the electors in each State shall have the qualifications requisite for electors of tlie most numerous branch of the State Legis- lature. This being made the criterion of the right of suffrage, it is consequently secured, because the same Constitution guarantees to every State in the Union a republican form of government. The right op suffrage is fundamental to REPUBLICS." If the power which we claim to be in tlie Constitution is really to be found there, it seems to us it would be criminal to permit it to be retrenched or abnegated, as it will be prac- tically if it is not exercised by Congress at this time. Exer- cised, the country will have peace, harmony, content — not exercised, a half century may elapse before amendments can be carried in all the State Constitutions, and strifes, conten- tions, and reconstruction postponed, will be the inevitable result. If this power is not in the Constitution, its framers design- edly omitted to provide for the preservation of the nation against a danger which they foresaw and discussed, as the extracts we have copied clearly show. If it is in the Consti- tution, it was placed there for precisely such an exigency as the present. That it is a wise and necessary power, events that are passing before us make certain. Shall this just and wholesome power be permitted to go unexercised, because, possibly, the States may by their own acts, at some future time, remove the necessity for its exercise ; or because, here- IN RESPECT TO SUFFRAG'3. 15 after, in ten years or twenty years, an amendment may be adopted, reaffirming, in express terms, the power already Tested in Congress, by the Constitution as it is ? Remembering the fact that there are in every community men who opi)ose all organic changes extending the suffrage ; looking to Kentucky and Maryland ; observing the condition of things throughout the South, no wise man will believe that just and republican sutTrage can be established throughout that portion of our country, without the intervention of Con- gress, for twenty years to come. The damage to that section, the loss to the whole country, in all its business and material relations, that will ensue in the absence of such intervention — the wrongs that will be committed, the cruelties perpe- trated, the seditions fomented, the insurrections inaugurated, — the fierce election struggles that will be kept up for years, in all the States, upon questions touching the very existence of the government, and so of the most dangerous character — the demoralizations that will extend through all our political organizations, and the popular weariness and disgust which will at length succeed, preparing the way for collapse and ruin, admonish us with terrible emphasis of the blunder that will be made if we neglect to perform the great duty of the HOUR. Although the facts and considerations presented in this paper, and which constitute its affirmative argument, seem to furnish a complete answer to the objections that have been raised to the theory herein maintained, it may not be unprof- itable to examine some of the principal of these objections in detail. They have been summed up, and stated with great clearness and ability, by a distinguished Senator from the State of Illinois — Mr. Trumbull. He says that " the power of Congress to regulate suffrage in the States cannot be derived from the clause whicii requires that ' the United States guarantee to every vState in this Union a republican form of government,' because such a construction would be inconsistent with the clause which leaves each State to fix the qualifications of electors of the most numerous branch of its Legislature." 16 THE POWER AND DUTY OF CONGRESS We do not perceive the inconsistency. Each State is to fix the qualifications of electors of the most numerous branch of its Legislature, and, in so doing, it fixes the qualifications of elec- tors of Representatives in Congress. But the qualifications of electors for members of the Legislature (and of Representatives in Congress as well), must be such as are consistent with the republican theory. The Constitution provides that in the several States the qualifications of electors of members of Congress and of the State Legislatures shall be the same ; but it nowhere declares in terms or by implication, that the quali- fications of these electors shall be such only as the States shall prescribe, no matter how unconstitutional and anti-republican they may be. The State may unquestionably, in the first instance, prescribe the qualifications of electors of members of the Legislature ; but if they are in derogation of the requirement that they shall be consistent with a republican government. Congress must, and, if it performs its duty, will, revise and regulate them so as to bring them in harmony with this form of government in contradistinction from an oligar- chical, or any other. The learned Senator also insists that this power does not exist, for the " further reason that a republican government does not depend upon the number of people who participate in the primary election of Representatives." It does, how- ever, in our American idea, depend upon the fact whether any of the people are excluded upon grounds of race or color, or upon any grounds which necessarily involve the idea of an aristocracy or oligarchy. Is this denied ? Then, if a major- ity of the voters of Rhode Island, for instance, in the course of ten years should be Irishmen, and should change the Con- stitution of that State so as to provide that only persons of Irish descent should be electors of members of the Legisla- ture, and of other officers, it would nevertheless be a repub- lican government, and Congress would have no just power to intervene and secure the right of suffrage to the other races. If the colored men of South Carolina should so alter the Con- stitution of that State as to exclude, in terms, all white men IN KESPECT TO SUFFRAGE. 17 from the ballot, still, if Judge Trumbull is right, the govern- ment is republican, and Congress has no power in the pre- mises. Or, if New Mexico, when she shall have come into the Union as a State, shall declare in an amended Constitu- tion that only descendants of Spaniards or Indians shall vote, yet, notwithstanding all other persons are cut off, her State government is in conformity to the Constitution of the United States ! To this complexion does the Senator's argument come. Or, suppose the people of Utah (when that territory shall have been admitted as a State) should change their Constitution so as to permit only Mormons to vote in the State and other elections, will those who agree with Mr. Trumbull contend that Congress has no authority to interpose and correct the abuse ? They must, if they endorse the doc- trine which he has endeavored to maintain. But it is contended that " the Constitution is to be inter- preted a^ it was understood by those who made it, and it will not be denied that at that time suffrage was much more restricted in all the States than it is in any of them now." So far from this being true, there was no restriction at that time in more than two of the States founded upon race, class or color, or on any distinction involving an absolute and insur- mountable inequality of rights. There were then, as there are now in some of the States, restrictions founded upon property qualifications and the like, which it was open to all citizens to avoid or overcome, but there were no others, except in two States only. It was at that time the general, and all but universal opinion, that all male citizens, whether native born or naturalized, white or black, were (certain conditions applicable to all men in respect to property, age or residence being complied with) entitled to suffrage — and in point of fact, as before stated, in nearly all the States at that time col- ored men possessing the qualifications required of all men, white and black alike, did vote in all elections in which white men voted. Colored men are now 'citizens, and if they are to enjoy the rights which were understood to be secured to citizens by the 18 THE PO"VSrER AND DUTY QF CONGRESS Constitution, they must be allowed to vote on precisely the same terms and conditions as other citizens. Those who made the Constitution must have understood it to secure equal civil and political rights to all citizens. This equality of right inhered in the term " republican government." As then understood, it was regarded as the very basis, the crucial test of such a government. While the framers of the Consti- tution understood that suffrage would not be exercised by females, minors nor slaves, they did not mean that an acknowl- edged citizen of the United States should be deprived of it simply because of his color or race. At the adoption of the Constitution, and for a considerable period afterwards, slavery, and not color or race,, excluded the negro from the exercise of political rights. Of course slaves were not permitted to vote, and in the lapse of time, as the purpose of extending and perpetuating slavery was devel- oped and strengthened, civil and political rights were gradu- ally withdrawn from the colored race until it came to be held by the Chi«f Justice of the Supreme Court ot the United States, in the baleful time of Mr. Buchanan's administration, that even free men of color had " no rights which white men. were bound to respect." The views of those who deny that our government was built upon the granite of human rights have their foundation in the demoralized condition of the pub- lic sentiment during the gloomy days of slavery domination. They belong to that period rather than to the healthier ones which existed at the formation of the Constitution, and suc- ceeded the abolition of slavery. At the earlier, as at the later period, tlie light fell directly and clearly upon that instru- ment, while in the middle time it fell obliquely and through mists. From the fact that, during the dark age of the republic, States fell into tiie practice of withholding the right of suf- frage from colored freemen, and Congress failed from year- to year to correct this abuse, leaving its highest duty imper- formed, and permitting free States, as well as slave States, to incorporate in their Constitutions and laws provisions at war IN RESPECT TO SUFFRAiJE. 19 with the Federal Constitution, and which transformed them in theory and in fact into oligarchies, no argument can he drawn for the justification or continuance of such practice. In the reactionary epoch that preceded the great uprising of 1860, it was denounced by the dominant political party of the country as a pernicious and almost treasonable heresy to maintain that Congress had authority to exclude slavery from the territories, although the Supreme Court, in the days of Marshall, had decided that it possessed plenary legislative power over them ; and the controlling majority of the party, backed in effect by the opinion of the Supreme Court, went so far as to iassert that the Constitution of the United States, ex propria vigor e^ carried slavery into every State in the Union. As well might it be said that Congress had no right to overrule these doctrines, and reverse the legislation founded upon them, as that it cannot now legislate, in the true spirit of the Constitution, and under the powers expressly dele- gated, in regard to suffrage ; or, in other words, to carry into effect the duty imposed upon it to guaranty to the several States a republican form of government. The power and duty of Congress to prevent the extension of slavery was no more clear to that body in 1862, than its power and duty to enact that no State in its regulations con- cerning elections shall deprive citizens of the United States of the right of suffrage, for the single reason that they are of a particular color or race, is now to the great majority of the loyal and intelligent men of the United States. In the month of February, 1867, the Legislature of the State of Maine, by the unanimous vote of its Republican members (who com- prised more than nine-tenths of that body), passed the follow- ing resolutions : 1. That the permanent peace of the nation can be secured only by a firm adherence to the self-evident truth that all men are created equal. 2. Tliat political power being an inherent right of the citi- zen, impartial suffrage should be the uniform rule of all the States of the Union, either by the authority already possessed 20 THE POWER AND DUTY OF CONGRESS hy Congress, or by the necessary amendment of the Constitu- tion of the United States. These resolutions were drawn and reported by one of the ablest lawyers in the State or country, and expressed the opinions of the Republicans of Maine, as well as of the Legis- lature which passed them. We have no reason to believe that the opinions of the Republicans of other States differ on this question from those of their brethren in Maine. It may be said that the Republican Convention at Chicago, in June, 1868, endorsed a different doctrine. The resolution of that Convention upon the subject of suffrage simply declared that in the loyal States the question of suffrage prop- erly belongs to the people of those States. That is what we say. And we say, further, it properly belongs to the people of all the States, subject only to the power of Congress to take care that it is founded upon constitutional principles. Congress may not be expected to go to work regardless of the action of the States, and pass laws in respect to suffrage, arranging all their details and conditions. Nevertheless, it may establish such general provisions or rules on the subject as may be necessary to secure a practical recognition by the States of the cardinal principle of impartial, republican suffrage. And this in no wise conflicts with the doctrine of the Convention at Chicago. It will be observed that in what we have said no reference has been made to the provisions of the 14th amendment of tlie Constitution. And even if the Chicago Convention had gone so far as to declare in terms that the exclusive power over suffrage and elections was, at that time, in the States, and that they might limit the right of voting to one-twentieth part of the people thereof, respectively, it would still be open to its members to insist noiv upon the intervention of Congress, because by the 14th amendment (which was adopted only in July last) the authority and duty of Congress is very clearly expressed, or, as we should say, reaffirmed. That amendment, so far as it relates to the question before us, is as follows : IN RESPECT TO SUFFRAGE. 21 Sec. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty, or prop- erty, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. See. 5. Congress shall have power to enforce, by appropri- ate legislation, the provisions of this article. We have seen that Mr. Madison regarded the " rights of suffrage " as a " fundamental article of a republican govern- ment," and as " secured to the people by the Federal Consti- tution," and that at the time of the adoption of the Constitu- tion the right of suffrage was, all but universally, regarded as a right of which the citizen could not be " abridged." Mr. Wilson said, in the Pennsylvania Convention, " the right of suffrage is fundamental to republics." Can that be a repub- lican government of which a male citizen of twenty-one years of age, and unaccused of crime, is deprived of the right of suffrage simply because he is of a Celtic, a Teutonic, or an African race ? And if he is, is he not " abridged " of one of his dearest " privileges " ? Sec. 2 of this amendment bears upon this question so far as to hold out inducements to the States to correct their laws in respect to suffrage, by saying, in effect, that until they do so, or they shall be corrected by Congress, their representa- tion in Congress shall be abridged. But it does not imply, and we learn from the debates in Congress that it was not intended to imply, the uncontrolled right of the States to con- fine suffrage to a portion of its citizens. Senators and Rep- resentatives alike denounced this as an unwarranted implica- tion. It only placed an additional burden or punishment upon an illegal act. It held out a new motive to the States to do right themselves, and so obviate the necessity of Con- gressional interference. UNIVERSITY OF CALIFORNIA LIBRARY BERKELEY Return to desk from which borrowed. This book is DUE on the last date stamped below. l^Apr'60Vr APRgOHBB JAN 8 1963 %^6 ^ A ^HQQ 23««r'62CT f^^^^gff^ MAR 9 «62 /Jtc Old l-lOOm-9,'48 (B399sl6) 476 jM^2V67-3PM LOAN DEP'''- JUNO? 1390 niRt APR 2 e 1990 Zl''''''' '■mm III iVi224S73 ZTK/dk/ THE UNIVERSITY OF CAUFORNIA UBRARY