Volume 11 — COLORED SUFFRAGE IN THE TERRITORY OF MONTANA.

Speeches in the Senate, on an Amendment to the Bill for a Temporary Government of that Territory, March 31 and May 19, 1864.

March 30th, the Senate having under consideration a bill, that had already passed the House of Representatives, to provide a temporary government for the Territory of Montana, Mr. Wilkinson, of Minnesota, moved to amend the clause relating to persons entitled to vote and eligible to office, so that, instead of “every white male inhabitant,” it should read “every free male citizen of the United States, and those who have declared their intention to become such.” Mr. Reverdy Johnson at once declared that “the effect of the amendment was to admit to the elective franchise in the proposed Territory black men as well as white,” and, after mentioning the number of Africans now in the United States, he proceeded to say that “it can hardly be seriously contended, that, of that four millions, such portion of them as have been in a state of slavery from infancy to the present time are intelligent enough, or likely to become intelligent enough, at once to exercise the right of suffrage”; and he anticipated another question, “just as likely to excite the public as the question of the existence of Slavery in itself.”

March 31st, the amendment was adopted,—Yeas 22, Nays 17. The debate continuing, Mr. Johnson said that the term “citizen” was not applicable to “black men,” “because the Supreme Court of the United States has decided, and that question was directly before the Court in the Dred Scott case, that a person of African descent is not a citizen of the United States.” Mr. Wilkinson was willing it should stand according to his amendment, and let the decision of the Supreme Court be whatever it might. He wanted neither “white” nor “black” put into the bill. Mr. Sumner then remarked:—

“I take it that each branch of the Government can interpret the Constitution for itself. I think that Congress is as good an authority in its interpretation as the Supreme Court, and I hope that in legislation it will proceed absolutely without respect to a decision which has disgraced the country, and ought to be expelled from its jurisprudence.”

Mr. Johnson vindicated the Dred Scott decision at length, and made an elaborate eulogy of Chief Justice Taney. In the course of his remarks, he said: “There are many men, the equals of the honorable Senator, to say the least, intellectually, who think that that decision was anything but an outrage.… We have an interest, jurisprudence has an interest, justice has an interest, the nation has an interest, in maintaining the character of that tribunal against all unjust reproach. It is no light thing to pronounce a decision given by such a tribunal as that as a disgrace.… I cannot, therefore, stand still and hear a tribunal like that assailed, as I think unnecessarily, by anybody, and particularly by the honorable member from Massachusetts.”

Mr. Sumner replied:—

MR. PRESIDENT,—The multiplication table tells us that two and two make four. Now, if a tribunal honored like the Supreme Court should undertake to declare that two and two make five, and a Senator as distinguished as the Senator from Maryland should uphold the high tribunal in its decision, I am not satisfied that it would be presumptuous in me to call that decision in question. But the Dred Scott decision was as absurd and irrational as such a reversal of the multiplication table, besides shocking the moral sense of mankind. The Senator will pardon the little scruple with which I denounce it. I claim nothing for myself; I may be weak; but, according to the measure of my abilities as God has given them to me, I enter a standing protest against that atrocious judgment, which was false in law, and also false in the history with which it sought to maintain its false law.

The Senator seems to imply that I am not familiar with the case. Sir, I know it too well. I have read carefully the opinion of the Chief Justice, which the Senator now vaunts, and I have read, also, the opposing opinions, by the side of which that much vaunted opinion is dwarfed into the pettiness proper to a production in such a cause, ignoble in character, and impotent except in that little brief authority incident to judicial rank. The Senator pleads for this judgment in the name of jurisprudence, of justice, and of the nation. Sir, by the same title I denounce it,—in the name of jurisprudence, which it disgraces, of justice, which it denies, and of the nation it has offended.

Among the influences and agencies that helped forward the present Rebellion, and set fellow-citizens in bloody conflict with each other, the Dred Scott decision must always be held in dismal memory. It gave conspirators new confidence. It filled patriots for a while with despair. It became the platform of Slavery, whose tyrannical behests would have triumphed, had this decision been allowed to prevail. Hating the Rebellion in its origin and all the circumstances that nursed it into wicked being, we must hate this decision.

But the Senator wandered into eulogy of that old Supreme Court, now departed, when Marshall was Chief Justice, and from the past claimed consideration for the present. Sir, I have been no careless student of that court in its great and palmy days. I know the learning, wisdom, and ability of its judgments, and am proud that there are such pages in the jurisprudence of my country. My sentiments toward the court of that day are warmed, also, by personal experience. It is among the cherished reminiscences of early life, that I was privileged to know, as a youth might know, the illustrious magistrate whom the Senator praises so well. He received me at his table, and allowed me to accompany him in his morning walks to the court-room. He was a venerable character. But I pray the Senator not to claim for the Dred Scott decision any of the reverence justly belonging to his name. There is no question of tribute to Chief Justice Marshall, or respect for the tribunal while he presided over it. The Dred Scott decision is more noticed from contrast with all that is good and great in the decisions of other days. It is sad that the tribunal that had established such an authority among us should do an act by which its authority has been endangered.

This whole debate is in the nature of a diversion or a deviation, and therefore I bring it back to the precise point from which it started. The Senator from Maryland invoked the Dred Scott decision as a reason why Congress should not recognize colored persons as citizens. In reply I simply asserted the right of Congress to interpret the Constitution without constraint from the Supreme Court, and this I now repeat. Each branch of the Government must interpret the Constitution for itself, according to its own sense of obligation under the oath we have all taken. And God forbid that Congress should consent to wear the strait-jacket of the Dred Scott decision!

Mr. Johnson closed his reply by saying: “And without meaning to offend the honorable member from Massachusetts, and with all the personal regard which I feel for him, and recollecting the courtesy that he has extended to me, and which I have reciprocated from the bottom of my heart, I say to him, without any purpose of offence, that, if I am obliged to act upon the weight of authority upon all questions of Constitutional Law, I shall prefer holding to the opinion of Taney than holding to the opinion of the honorable member.” Mr. Hale, of New Hampshire, after remarking that he differed from Mr. Sumner, said: “I do not believe that I think any better of that decision than he does. I think it was an outrage upon the civilization of the age and a libel upon the law; but I do not think it was a disgrace to the Supreme Court of the United States.” [Laughter.]

The bill passed,—Yeas 29, Nays 8.

The House of Representatives disagreed to the Senate amendment, and a Committee of Conference was ordered, which reported in its favor. But the House again disagreed, and, April 15th, another Committee of Conference was appointed, under instructions, moved by Mr. Webster, of Maryland, “to agree to no report that authorizes any other than free white male citizens, and those who have declared their intention to become such, to vote.” The vote of the House on these instructions stood, Yeas 75, Nays 67. The Senate refused a further conference upon the terms proposed, which were abandoned by the House, and a conference without limitation was agreed to. May 19th, the Conference Committee reported, in lieu of the Senate amendment, the following clause: “All citizens of the United States, and those who have declared their intention to become such, and who are otherwise described and qualified under the fifth section of the Act of Congress providing for a temporary government for the Territory of Idaho, approved March 3, 1863.” The reference to the Idaho Act required explanation, when the following dialogue took place.

Mr. Sumner. I should like to know the nature of the substitute, if the Senator from Maine [Mr. Morrill] will be good enough to state it.

Mr. Morrill. I will state in a word that the effect of the amendment of the Committee of Conference is to authorize the temporary organization of the Government of Montana by that class of persons that were authorized to organize the Territory of Idaho.

Mr. Sumner. What class of persons was that?

Mr. Morrill. They were, as I recollect the qualification, white citizens of the United States, and such others as had declared their intention to become citizens. As it now stands, the qualification in Montana will be that the voters at the first election will be citizens of the United States, and such as have declared their intention to be citizens of the United States, and such as are qualified by the fifth section of the Act organizing the Territory of Idaho.

Mr. Sumner. That is, free white persons, I understand.

Mr. Morrill. That is what it comes to.…

Mr. Sumner. Is not the new proposition almost identical with the original House proposition on the question of color?

Mr. Morrill. On the question of the exclusion of colored men it is identical. It does exclude colored men.

Mr. Sumner. I understand that the point of difference between the two Houses was simply as to the word “white” or “black.”

Mr. Morrill. That was the principal question, and on that point I desire to say precisely how the Committee found the question.…

Mr. Sumner. Then the proposition, as I understand it, is, that the Senate shall abandon its position. Why so? Because the House of Representatives will not abandon its position.

Mr. Morrill. No, Sir, the Senator will allow me: because there did not seem to be any practical sense in adhering to it; because to adhere to it defeated the bill; because to adhere to it accomplished no earthly purpose, gave nobody any right.

Mr. Sumner. For the other House to adhere on the other side defeated the bill also.

Mr. Morrill. Yes.

Mr. Sumner. And the question is, Which shall adhere, the side that is right or the side that is wrong?

Mr. Morrill. And that is the question the Committee submit to the Senate.

Mr. Sumner. I hope the Senate will adhere to its original position, and I believe that the assertion of that principle at this moment is more important than the bill.

In the debate that ensued, Mr. Harlan said that he should “vote against the report of the Committee, chiefly, however, because he did not think there was a pressing necessity for the organization of another Territory in that part of our domain.” Mr. Sumner called attention to the Ordinance for the organization of the Northwest Territory, and then said:—

It will be observed that in this Ordinance, to which we so often refer as a commanding authority, there is no discrimination of color. Now I ask if this is not a good precedent. Like the present bill, it was applicable to a vast unsettled Territory. Senators may say that our fathers, in the Ordinance, were not practical. I am not of that number. Senators may say that our fathers, in the Declaration of Independence, were not practical. I am not of that number. Senators may say that our fathers, in the Constitution of the United States, which contains no discrimination of color, were not practical. I am not of that number. Sir, I believe that the authors of this Ordinance, and the authors of the Declaration of Independence, and the authors of the Constitution were eminently practical, when they excluded from those instruments any discrimination of color. But it is said that there are no persons in the new Territory to whom the principle is now applicable. This can make no difference. It is something to declare a principle, and I cannot hesitate to say that at this moment the principle is much more important than the bill. The bill may be postponed, but the principle must not be postponed.

Mr. Morrill. I will suggest to the Senator, if he will permit me,—

Mr. Sumner. Certainly.

—that the statement I made about its applicability was this: it is not by possibility applicable to any man of African descent. There are some five or six thousand Indians, to whom a bill in general phrase, without limitation of “white,” might possibly apply; I do not say that it would apply to them in this case.

Mr. Sumner. Practically, the subject-matter of this clause is not Indians, but the well-known African race of this continent; and it is proposed, by specious words wrapped up in a clause borrowed from another bill, to exclude them from the right of suffrage in this Territory; and the argument for this injustice, as my friend from New Hampshire [Mr. Hale] has so ably stated, is only a reproduction of that well-known ancient argument for Slavery in the Territories. How often were we in those days compelled to encounter the charge that we were not practical,—that we were urging a prohibition, when there was no occasion for it! For myself, I believe you cannot too often assert a prohibition of Slavery, nor too often assert human rights, wherever they may be called in question; and especially do I believe in the importance of such assertion when you are laying the foundations of a new community. “Just as the twig is bent the tree’s inclined.” These are familiar words of childhood. Would my friend from Maine have the tree that he plants grow up with a generous and protecting shelter for all mankind, or shall it be the bent and crabbed product of unhappy prejudices which are only a growth of Slavery? I know my friend means no such thing; but I insist that the policy he recommends tends to such fatal end. For myself, Sir, I am satisfied with the Declaration of Independence; I am satisfied with the Constitution on this important subject; and, adopting the language of our Lieutenant-General in the field, I desire to say, “I will fight on this line to the end, even if it takes all summer.” There is no line better than that of human rights. While fighting on that line, I cannot err; there is no pertinacity too great; there is no ardor that is not respectable. I thank General Grant for these words. They express his own steadfast purpose, and we all thank him. But each, in his sphere, may make them his own. I make them mine, wherever human rights are in question.

The report of the Conference Committee was adopted,—Yeas 26, Nays 13. And so this first battle for colored suffrage was lost.