History of the Thirty-Ninth Congress of the United States

by William Horatio Barnes

In answer to the objection that the proviso in the proposed amendment seemed to acknowledge the right to deny or abridge the elective franchise on account of race or color, Mr. Bingham said: "I beg the gentleman to consider that a grant of power by implication can not be raised by a law which only imposes a penalty, and nothing but a penalty, for a non-performance of a duty or the violation of a right. Within the last hundred years, in no country where the common law obtains, I venture to say, has any implication of a grant of power ever been held to be raised by such a law, and especially an implied power, to do an act expressly prohibited by the same law. The guarantee of your Constitution, that the people shall elect their Representatives in the several States, can not be set aside or impaired by inserting in your Constitution, as a penalty for disregarding it, the provision that the majority of a State that denies the equal rights of the minority shall suffer a loss of political power.

"I have endeavored to show that the words of the Constitution, the people of 'the States shall choose their Representatives,' is an express guarantee that a majority of the free male citizens of the United States in every State of this Union, being of full age, shall have the political power subject to the equal right of suffrage in the minority of free male citizens of full age. There is a further guarantee in the Constitution of a republican form of government to every State, which I take to mean that the majority of the free male citizens in every State shall have the political power. I submit to my friend that this proviso is nothing but a penalty for a violation on the part of the people of any State of the political right or franchise guaranteed by the Constitution to their free male fellow-citizens of full age.

"The guarantee in the first article of the second section of the Constitution, rightly interpreted, is, as I claim, this: that the majority of the male citizens of the United States, of full age, in each State, shall forever exercise the political power of the State with this limitation: that they shall never by caste legislation impose disabilities upon one class of free male citizens to the denial or abridgement of equal rights. The further provision is, that the United States shall guarantee to each State a republican form of government, which means that the majority of male citizens, of full age, in each State, shall govern, not, however, in violation of the Constitution of the United States or of the rights of the minority."

In closing his address, Mr. Bingham said: "I pray gentlemen to consider long before they reject this proviso. It may not be the best that the wisest head in this House can conceive of, but I ask gentlemen to consider that the rule of statesmanship is to take the best attainable essential good which is at our command. The reason why I support the proposed amendment is, that I believe it essential and attainable. I do not dare to say that it could not be improved. I do dare to say that it is in aid of the existing grants and guarantees of the Constitution of my country, that it is simply a penalty to be inflicted upon the States for a specific disregard in the future of those wise and just and humane grants 'to the people' to elect their Representatives and maintain a republican government in each State.

"Mr. Speaker, the republic is great; it is great in its domain, equal in extent to continental Europe, abounding in productions of every zone, broad enough and fertile enough to furnish bread and homes to three hundred million freemen. The republic is great in the intelligence, thrift, industry, energy, virtue, and valor of its unconquered and unconquerable children, and great in its matchless, wise, and beneficent Constitution. I pray the Congress of the United States to propose to the people all needful amendments to the Constitution, that by their sovereign act they may crown the republic for all time with the greatness of justice."

Mr. Broomall, of Pennsylvania, presented an objection to the resolution which had not been alluded to by any gentleman on the floor. He said: "The resolution provides that whenever the elective franchise shall be denied or abridged in any State, on account of race or color, all persons of such race or color shall be excluded from the basis of representation. Now, there is a great deal of indefiniteness in both those terms, 'race' and 'color.'

"What is a race of men? Writers upon the subject of races differ very materially on this point. Some of them would make four or five races; others fifteen; and one, whom I might name, seems inclined not to limit the number short of a thousand. I myself am inclined to think that the Celtic race is a distinct one from ours. I think that any gentleman who has studied this subject attentively will at least have doubts whether or not the race that appears to have inhabited Europe in the early historic period, and has been partly dispossessed there by ours, is not a distinct race from ours.

"Again: the word 'color' is exceedingly indefinite. If we had a constitutional standard of color, that of sole-leather, for example, by which to test the State laws upon this subject, there might be less danger in incorporating this provision in the Constitution. But the term 'color' is nowhere defined in the Constitution or the law. We apply the term to persons who are of African descent, whether their color is whiter or darker than ours. Every one who is familiar with the ethnological condition of things here in the United States, and who sees the general mixing up of colors, particularly in the Democratic portion of the country—I allude to that portion south of Mason and Dixon's line—must say with me that the word 'color' has no very distinct meaning when applied to the different peoples of the United States of America."

Two Representatives from New York—Mr. Davis and Mr. Ward—expressed opinions favorable to a modification of the basis of representation, and yet were opposed to the details of the proposition before the House.

Mr. Nicholson, of Delaware, in emphatic terms, denounced the acts of a majority of the House in attempting to amend the Constitution. "If they shall finally triumph," said he, "in the mad schemes in which they are engaged, they will succeed in converting that heretofore sacred instrument, reverenced and obeyed till the present dominant party came into power, from a bond of union to a galling yoke of oppression—a thing to be loathed and despised."