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■V



SPEECH

OF

HON. T, A. HENDRICKS,

OF INDIANA,
\\/r In the Senate of the United States, February 16, 1868.



Mr. HENDRICKS. Mr. President, it has been the boast of the people of the United
States that they are in the enjoyment of Constitutional liberty, not liberty depending
upon the will and pleasure of any man, but a liberty that is secured by the fact that
the powers of the Government are defined and limited, and that the rights and privi-
leges of the people are well secured. Our Constitution was made by men eminently
qualified for the work. No one now questions that. The American people have been
very fortunate in that regard. As patriotic, as pure, as intelligent, and able statesmen
as ever united in the performance of any labor for their country were the men who
• made the Constitution of the United States. The time was auspicious. The war of
the Revolution had just closed, and the people of the different States or colonies had
become firmly united and cemented by the circumstances of that war. There"%as no
sectionalism in 1789, but the men of South Carolina loved the men of Massachusetts
as they loved the men of Virginia. Seven years of war had passed over the country
and the men of every section had mingled in that war. The soldier of Virginia had
been associated with the soldier from Massachusetts ; they had dwelt under the same
tent together ; they had shared the hardships of the field, the dangers upon the rough
edge of the battle ; their comrades had fallen together and slept in a common grave.

The glories of that war were common to all. They did not belong to Virginia alone
or to Massachusetts alone, but all had shared in common perils for a common purpose
and had achieved a common glory and a common good. Under these circumstances
our fathers met to frame a Government for the people ; and for three quarters of a cen-
tury we thought they had framed the best Grovernment it was possible for the intelli-
gence of man to devise, a Government adjusting the interests of the different sections
so as that there could be do discord, leaving to the States the management and control
of all domestic matters, and giving to the Federal Government the control of those
general questions that affected all the people. Under that Government for three quar-
ters of a century we lived and* prospered, we prospered as no people had pro-.pered, we
grew in wealth and in population beyond all parallel.

A war came in 1861 upon the country again, the most unfortunate that can befall
.any people ; and now, after a war not against a common enemy, but at the close of a
war between different sections of this country, in which the men of the North have
been arrayed in battle against the men of the South, when we have learned to hate
one another as no people have ever hated, we now propose to amend the Constitution.
I appeal to Senators to inquire of their own judgments and hearts and say to the coun-
try, are you now in the right spirit to change the fundamental law of the land ? Eleven
States are absent from our councils ; they are not here to be heard. We say they
shall not come in, and we, the men of the North, propose to make a Government for



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the whole country. We, without the hearing, without the counsel of the men of the
South, propose to make a Government which they shall respect and obey. Are the^
circumstances favorable to this work ? How different from the circumstances that sur-
rounded our fathers when they made the Government ! Peace then, peace now ; but
peace then after a war which had united the people ; peace now after a war which has
made such divisions among us, as that you now say eleven States ought not to be rep-
resented in Congress.

Again, sir, the fact that there is such a desire to change the Constitution should ad-
monish us that we ought not to attempt the work. I understand that there are seventy
propositions to amend the Constitution. In this Hall there have been two or three
upon the same subject-matter, two or three amendments that we shall not pay a debt
of the South which the South itself has repudiated, which can never according to the
terms of the debt itse f become due. And covering nearly the entire instrument prop-
ositions for amendment are made.

1 was once, when quite a young man, a member of the Legislature of my State, and
nothing struck me as a greater curiosity than the fact that upon certain questions
there was a great desire to offer propositions and bills, and especially the estray laws,
the road laws, and the school laws. Members from different parts of the State seemed
to make a race of speed which should succeed in first getting his proposition before
the body. Such a spectacle we to-day witness in regard to the Constitution of our
country. It seems to be a race among Senators and Representatives who shall offer
the greatest number of amendments to the Constitution of the country. I do not ex-
pect to vote for the proposition that is now before us or any other that may be made.
In some regards 1 think the Constitution could be improved, but I would not propose
any amendment, nor would I vote for any, when I think we are not in a condition for
the woik.

This proposition comes from the committee of fifteen ; a committee which was con-
stituted and the powers of which were defined by this resolution :

" Resolved, That a joint committee of fifteen members shall be appointed, nine of
" whom shall be members of the House and six members of the Senate, who shall in-
'* quire into the condition of the States which formed the so-called Confederate States
"of America, and report whether they or any of them are entitled to he represented in
" either House of Congress ; with leave to report at any time by bill or otherwise."

Sir, there was one question upon which it was important that the action of the two
Houses should be uniform, should agree, and that was in respect to representation. It
seemed to be important that when Senators were admitted into this body from Southern
Spates, Representatives at the same time should be admitted into the House of Repre-
sentatives. In other words, the Senate should not allow representation from a Southern
State and the House deny that representation to the same State ;■ and therefore it was
understood that there should be a joint committee on that subject, because it was a
question relating to the organization of both bodies, and this committee was organized
with a view to reach that question, and that only — to inquire into the condition of the
Southern States, whether they are entitled to representation; and upon that question
to report to the Senate and to the House either by bill or otherwise. Sir, the Senate
has never said to that committee that it might inquire into any other question.

Mr. FESSENDEN. Allow me to ask the Senator if he heard the explanation which
I gave?

Mr. HENDRICKS. I did, and I am going to speak of that. This is an extraordinary
committee to consider just one question, and that is the question whether the Southern
States ought to be represented in this Hall and in the Hall at the other end of the
Capitol. That committee has not been authorized by the Senate and House of Repre-
sentatives to inquire into any other subject, as I said. Upon that subject they may re-
port by bill or otherwise. How is it that passing from that subject, the committee has
reported two amendments to the Constitution upon subjects not referred to them?

Mr. F ESSEN DEN. The Senator is very much mistaken. Allow me to explain ; I do
not wish to interrupt the Senator except to explain. The committee did not take that
view of its powers. To be sure, by the original resolution under which the joint com-
mittee was appointed, the limitation was precisely as the Senator expresses it ; but it
was a joint committee, and the House of Representatives referred the resolutions origi-
nally offered by »>ne of my colleagues [Mr. Blaine] to that committee. Now, sir, it is a
well-established principle in business here, that however a committee may be raised
it can report upon any subject that is referred to it, for that is a new commission, so to



speak ; and that subject being specifically referred to the committee they understood
that it was their duty to report upon it ; and it being a joint committee, and each House
making its reference, the committee supposed, and I as an individual supposed that it
was proper or at least competent, for the committee to report to either branch ; and it
was thought best to make the report at the same time to both branches. That is a
question as to the right or duty of the committee under the reference, which inight be
decided if there was any occasion to decide it. I make this explanation to show what
view the committee of fifteen took of it. As to the other report which was made of a
joint resolution, allow me to say that it was made specifically the duty of the commit-
tee to inquire into and report upon that subject by a resolution which was offered by
the Senator from Missouri, [Air. Brown, ] and which was adopted by the Senate.

Mr. HENDRICKS. Mr. President, I understood the facts precisely as the Senator
has stated them ; and if this were a committee of the Senate, or exclusively a com-
mittee of the House, his view of the subject would be right perhaps ; but I suggest to
him that if a committee of this body are to consider of the business of this body alone
has a defined jurisdiction, and the body inadvertently refers to that committee some
subject that does not come within that jurisdiction, it is the custom of the committee
without consideration of the subject to report it back to this body, that it may go to
the appropriate ecmmittee. But, Mr. President, this is not a committee of the Senate;
it is not a committee of the House ; it is a committee to represent both bodies upon a
subject common to both, not a subject over which there should be the separate action
of the two bodies, and therefore the House cannot add to the jurisdiction of a joint
committee, nor can the Senate alone add to the jurisdiction. It being a committee
representing both bodies, originated by a joint resolution and its jurisdiction defined
that jurisdiction can only be enlarged by a joint resolution.

Mr. FESSENDEN. The practice of the Senate is the other way every day. Take
the case of the Joint Committee on the Library. Matters are referred by each body to
the Library Committee which are entirely outside of the Library itself, or anything
connected with it ; but being referred by each House to that committee, which is a
joint committee, a report is made by bill or otherwise to each branch. I have been a
member of that committee, and know this to be the every-day practice.

Mr. HEND.RICKS. If that be the every-day practice of the Senate, to which propo-
sition I do not agree.

Mr. FE8SENDEN. It is the fact at any rate.

Mr. HENDRICKS. If that be the practice of the Senate, it ought now to be aban-
doned. Why, sir, does the Constitution establish a House of Representatives and a
Senate, and declare that the legislative power shall not belong to one body, but shall
belong to two bodies, acting separately and independently ? The purpose of the Con-
stitution is that every important measure affecting the country shall, before it becomes
a law, receive the consideration of two Houses separately, each giving its separate at-
tention to the subject. And so far does the principle on this subject go that we can-
not in debate in this body refer to the doings of the House of Representatives ; we are
not allowed by the rules of the body to refer to the action of the House ; and whv t
Because it is the purpose that the action and judgment of the House shall have no in-
fluence upon the Senate, nor shall the judgment of the Senate have any influence upon
the House; and the purity of legislation requires that upon all grave questions each
House shall act separately and independently, and that principle is not departed from
except when there is a disagreement between the two bodies, and then a committee of
■conference attempts to reconcile that disagreement.

And, sir, if this is a sound principle of legislation, I ask, ought it to be departed
from when we propose to amend the Constitution of the United States ? Ought not a
proposition to amend the Constitution to be considered by each branch without refer-
ence to the judgment of the other? Here, sir, is a large committee, nine of the House
six of the Senate, fifteen, holding a joint conference upon a subject before it comes to
either body, and at the same time a report is made from that committee to both bodies,
thereby defeating the very purpose of the Constitution in having separate branches of
the Legislature. This committee had its birth in a party caucus and has constituted
itself a new French Directory, set up in Washington to control the action of Govern-
ment, to grasp in its hands the functions of Congress, and to dictate to the
Executive.

It is composed of nine members from the House of Representatives, and of six mem-
bers from the Senate. It meets in secret session, wholly free from the observation of
the public, and at such place and time as may suit its own pleasure. Over the door
of its meeting place might be appropriately written, "No admittance for the American



people ; this place is sacred to a political inquisition, whose will is law to the President
and to Congress, and whose fiat binds the fortunes and determines the fate of eleven
States and eight million people." The committee select witnesses according to their
own good will. Their writs of subpena run throughout the country, and they can
draw upon the Treasury for their expenditures. They cogitate constitutional amend-
ments for the operation of the previous question in the House of Representatives, and
for the lash of party discipline in the Senate. The representation of eleven States
stands suspended during their pleasure, and while they may devise how the President
of the United States shall be broken to their will, or be degraded before the people.
In the exercise of this fearful and odious power, one-fourth of the people of the nation
are arraigned before the secret bar of the tribunal of fifteen, and their fate may be de-
termined upon the evidence of spies, informers, contractors, political agents, and hos-
tile officials.

That, Mr. President, is the committee which proposes these amendments to the Con-
stitution of the United States ; a committee organized for party purposes; a committee
that had its birth, as I said, in a party caucus ; a committee that was carried through
the House of Representatives the first day of the session, and, in my judgment, could
not have been carried at any later day of the session ; a committee that was carried
through this body after some amendments of the House resolution. That committee
proposes amendments to the organic law of the country, and we are expected, and I
suppose it will be done, to pass them in this body.

Then, after speaking of the committee that brings the proposition before the body, I
wish to inquire a little into the history of this Constitutional amendment that is pro-
posed. The first proposition that was talked of during the session, and the very first
proposition that came before this body, was the proposition of the Senator from Massa-
chusetts, [Mr. Sumner,] offered on the first day of the session. That proposition was,
as he has since very ably discussed the question, that taxation and representation shall
rest upon the same basis. His proposition was that taxation and representation should
rest upon the voting population of the United States, limited to those persons who are
voters and over twenty-one years of age. I heard no objection to that proposition until it
was made in the House of Representatives. I presume I may refer, under the rules, to
what may be said in the House as a matter of History without reterring to it for any
purpose of influencing the judgment of the Senate. The objection made in the House
to the proposition of the Senator from Massachusetts Cfor the same proposition was
made there} was that it was unequal ; and the Senator from Maine, [Mr. Fessenden, J
who reported this resolution from the committee, expressed the same objection to the
voting basis that was made in the House ; that it was unequal ; that the male popula-
tion of New England was not so great in proportion to the female population as in the
Western States, and especially as in California, and therefore New England, under that
proposition, would not receive so large a representation as the Western States. There
was force in the objection ; for if you examine the census of 1860, it will be found that
the female population of the six States of New England exceeds the male population
some fifty thousand, while in the six great agricultural States of Ohio, Indiana, Ken-
tucky, Illinois, Missouri, and Iowa, the male population exceeds the female population
by two hundred and ninety-seven thousand seven hundred and fifty-eight. Adopting
the voting population then, as the basis of representation and taxation, the six great
agricultural States of the West that I have mentioned would have the advantage of
New England by two or three Representatives. New England would not endure that.
From the time the speech was made developing that fact in the House of Representa-
tives, no man has raised his voice for the voting basis.

Mr. President, upon what should representation and taxation rest ? The Constitu-
tion as it now stands provides :

" Representatives and direct taxes shall be apportioned among the several States,
M which may be included within this Union, according to their respective numbers,
"which shall be determined by adding to the whole number of free persons, including
" those bound to'service for a term of years, and excluding Indians not taxed, three-
" fifths of all other persons."

This is the provision of the Constitution which it is proposed to amend. This pro-
vision rests upon the doctrine of the Revolution, upon the established principle and
policy of the Government that representation and taxation shall have the same basis
of support. The propriety and justice of the principle was not questioned in the
Convention that made the C onstitution, nor in the conventions of the States that rati-
fied that instrument, and it is to-day the cherished doctrine of the American people



that taxation ought not to go beyond representation. The opinion has been attributed
to the President that taxation ought to rest upon property. In my judgment, it should
be so, but at the same time I may say it will never be. Property is the proper subject
of taxation, and taxes ouglit to be levied upou persons in proportion to there estates.
That is the principle that prevails in the States, aud in my judgment property should
be the basis of Federal taxatiou : but it is not, and while New England, in proportion
to her population, and New York and Pennsylvania are so much more wealthy than
the other States of the Union, that basis never can be secured.

Then, sir, if taxation connot be made to rest upon property, where I think it should
rest, ought taxation to go beyond representation ? I will not attempt to discuss the
question so fully exhausted by the Senator from Massachusetts, [ Mr. Sumner.] One
difficulty in forming the Constitution of the United States grew out of the relation of
the slaves tc the people. In some respects they were regarded as persons, and in other
respects as property, and a compromise was the result of the consideration of the ques-
tion — a compromise to the effect that three-fifths of the same population should be
counted. But, Sir, under the Constitution, as 'the slaves became free, they fell into the
population that they were counted man for man ; and now as slavery has been abolished,
the entire colored population is to be counted for the purpose of taxation and repres-
entation under the present Constitution ; but it is proposed to change the Constitution
so that they shall not be counted in States where they are not allowed to be voters.

This proposition when first brought before the body provided that representation and
direct taxation should stand together and rest upon the same basis. After a further
consideration of the subject, it was decided to strike out the words "and direct taxa-
tion," and that was the second report from the committee. The effect of that is, that
taxation upon the southern States shall be increased, so far as it rests upon the colored
population, two fifths, and representation, so far as it rests upon that population, shall
be reduced three-fifths. Now, there is in the northern States anon-voting white popu-
lation. You count them for purposes of taxation. You count them for purposes of
repivsentaiion. You do not for either purpose inquire whether they exercise the
privileges of a citizen by voting. You simply count them, and you make no difference.
But in the South you propose to tax the people of the States upou the colored popu-
lation, and you deny them representation upon that population.

Mr. President, upon what principal does this proposition rest? Every great amend-
ment to the Constitution of course ought to rest 'upon some principle. Neither its pro-
visions for taxation or for representation rests upon property, as I have said. It does
not rest upon voters, because it allows persons to be counted who are not voters.
White persons who are not voters are counted. It does not rest upon the entire pop-
ulation of the country, because it excludes nearly four millions who are not voters. In
the North, I understand there are from fifteen to twenty Representatives upon a non-
voting population, and this proposed amendment will not change it in that regard. I
will read a very short extract from two speeches on this subject made by very distin-
guished supporters of this proposition :

"Again, many of the large States now hold their representation in part by reason of
" their aliens."

Another gentleman, the chairman of this committee in the House, said :

"Now, Sir, there is another fatal objection to the proposition of my friend from
"Ohio."—

4

That proposition was that representation and taxation should rest upon the voting
population —

"If I have been rightly informed as to the number, there are from fifteen to twenty
"Representatives in the northern States founded upon those who are not citizens of
"the United States. In New York I think there are three or four representatives
"founded upon the foreign population, three certainly. And so it is in Wisconsin,
"Iowa, and other northern States. There are fifteen or twenty northern Representa-
"tives that would be lost by that amendment."

Then, Sir, there are to-day in the House of Representatives from fifteen to twenty
Representatives based upon a population who are denied the right of voting by the
laws of the country. If it be right to deny to southern States a representation in the
House of Representatives because they do not allow a certain clasS to vote at the polls,
as honest men wanting to deal justly and fairly, how can you deify a representation upon



6

a non-voting population fn the southern States ? We are considering too grave a ques-
tion to perpetrate inequality and injustice. If the North has upon a non-voting popu-
lation the benefit of from fifteen to twenty Representatives, how is it that she can say
that no other section of the country shall enjoy the same right, if it is the pleasure of
the States to deny the rij^ht of voting ?

Then, sir, as the proposition does not rest upon population, as it does not rest upon
property, as it does not rest upon voters, upon what principle does it rest ? Upon what
principle do Senators propose to adopt this amendment to the Constitution ? I can
understand it if you say that the States shall be represented in the House of Repre-
sentatives upon their popiilation ; I can understand it if you say that they shall he
represented upon their voters ; but when you say that one State shall have the benefit
of its non-voting population and another State shall not, I cannot understand the prin-
ciple of equity and justice which governs you in that measure. Sir, if it does not
stand upon a principle, upon what does it rest ? It rests upon a political policy. A
committer that had its birth in a party caucus brings it before this body, and does not
conceal the fact that it is for party purposes. This measure, if you ever allow the
southern States to be represented in the House of Representatives, will bring them


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