"The President pro tempore: The question is on the amendment.

"Mr. Buckalew: I ask for the yeas and nays.

"The yeas and nays were ordered, and being taken resulted: yeas 32, nays 6.”

This is the whole record except the recording of the names on the yea and nay vote.

The Senate then immediately went again into executive session. Those proceedings in both Houses took place on March 12, 1868, and, looking from the record that contained all that was said and done, could not have occupied as much as ten minutes in both Houses.

It will be seen that the same tactics prevailed in the Senate that effected the passage of the bill in the House. Artifice and disingenuousness were practised to conceal the true character of the amendment in both Houses. In the Senate there was a direct appeal made by Mr. Buckalew for an explanation of the character and the force of the bill, an explanation of particular reasons for taking away the jurisdiction, and of the character of the jurisdiction to be destroyed. And there was a refusal to make any explanation at all. There was also an appeal made for postponement for a single day in order that he might examine for himself the amendment, which he had in vain asked the Senator in charge of the bill to explain. This was denied. An appeal was then made for time to get the statute and read it, and this was not granted. It will be observed that this appeal for information and explanation was not sympathized in by any of the Republican Senators. Every one of them was prepared to vote for a bill, without inquiry into its character and without information as to its meaning, unless, as is certain, this material amendment had been considered by them outside of the Senate, and its offering was the result of a prearranged scheme for the enactment of a law of the most important character without allowing its meaning and effect to be exposed to the Senate, or rather to the members of the opposition.

In this way and by these means, disreputable in the highest degree, was the Supreme Court deprived of its jurisdiction, and the decision of the most momentous constitutional

question ever submitted to a court was withdrawn from the tribunal appointed by the Constitution for its settlement.

These proceedings, with the attendant consequences, constitute a chapter in the history of the world that must arrest the attention of mankind.

These

In the great republic in the New World had grown up institutions framed by the liberty-loving Anglo-Saxon race to guarantee personal liberty, the free exercise of political and civil rights, "to insure domestic tranquillity and to provide for the common defense, promote the general welfare and to secure the blessings of liberty," to that race and its posterity forever. This Government had been framed and administered by that race through a written Constitution that had been recognized as the supreme law of the land. institutions had been so organized by the aptitude and genius. of that race for self-government that checks and balances,— equipoise of power, were provided so as to insure minorities against oppression and ruin and hold majorities animated by passion and inflamed with the possession of undisputed powers within the limits of the great charter, the Constitution. Among these checks, and one of the most important and essential, was the Supreme Court of the United States, which had been made the final arbiter of the powers of the Government. The Court was provided for in the Constitution itself, and was, therefore, as much an essential organism of the Federal Government as Congress or the Executive. It was the head and the director and supervisor of the Judicial Department, which was itself a co-ordinate Department of the Government. It could not be destroyed except by a destruction of the Constitution itself. It could not be crippled or maimed in the exercise of its high functions of constitutional arbitrament in the last resort, but by a maiming and disfiguring of the scheme of the Constitution itself.

The Court was venerable and venerated both because of the men that then constituted its membership and because of the long line of illustrious judges that had preceded them. Here were ten millions of freemen of the Anglo-Saxon race that had framed the Constitution, the countrymen and kinsmen of him who had led the armies of the Confederacy in its infancy and weakness through the struggle for independence, the countrymen and kinsmen of Mason, Jefferson,

Madison, Marshall, Clay, and Jackson, and of a long list of illustrious warriors and statesmen who had rendered the greatest services to the whole country; these millions, through the appellant, were suitors before this august tribunal pleading for a share in that constitutional liberty that their fathers had established. These millions were the subjects of military rule in time of peace; they were denied the great writ of habeas corpus and the right of trial by jury, this denial being the appointed agency of forcing them to consent to such changes in the Constitution as were designed for their ruin and their humiliation. These millions had, in pursuance of what they believed to be the inalienable rights of freemen, sought safety outside of the Union. Their success had been prevented by irresistible force, wielded and applied under a solemn declaration of the Congress that the war on them was waged not for oppression or subjugation, or for the overthrow of their established institutions, "but to defend and maintain the supremacy of the Constitution of the United States and to preserve the Union with all the dignity, equality, and rights of the several States unimpaired. They now appealed to this great court for the supremacy of the Constitution and for the unimpaired equality and rights of the States of which they were citizens.

This people had not always conceded that this Court was the final judge, as against the States, of constitutional questions, and in this view many of the Northern people had at one time concurred. They had leaned to the view of Mr. Jefferson, that the Constitution was a compact between the States, and that in all cases, as to the extent of the powers of the States as affected by the grant of power to the Federal Government, each State was the rightful judge for itself. On this theory they had acted in seceding, and on it they had been vanquished. On the other hand, those who then controlled the Government denied this State authority to judge of infractions of the Constitution, and asserted that the Supreme Court was the final arbiter. That had been the view of the victorious section. Yet now the vanquished, as a necessity of their defeat, relinquished their former opinions, assented to the view of the victor, and appealed to the tribunal that was asserted by their late antagonists to be legitimate. This tribunal was an established organism of the

Government of the United States. Every member of it had adhered to that Government in the civil war just ended. Five of the eight Judges belonged to the political party of the majority in Congress, and they all were citizens and residents of that section that had triumphed, and they all had concurred in the judgments of the Court that held that the war was constitutional and legitimate on the part of the United States. Not one of the Judges was from the Southern States, nor had any of them shown the slightest sympathy for the cause of those States. So if this great Court had prejudices, they were not in favor of the South. Besides this, it would have required the concurrence of five of the eight Judges to reverse the judgment under review and to establish the constitutional rights claimed by the South. The question involved grew out of the late war; the Judges were part and parcel of the victor, and the rights of the vanquished were at stake.

Yet such are the changes produced by revolutions in human affairs that the vanquished South, bereft of all other hope, and yielding to an inexorable necessity, sought protection for its rights as freemen under the Constitution from this great tribunal which, in the days of its power and equality in the Union, it had refused as the final arbiter; and the North, flushed with victory and inflamed with passion and revenge, now took away from the tribunal the jurisdiction that had been accorded to it. Men's passions were substituted for the Constitution. The policies of statesmen caused them to refuse obedience to the Constitution, to secure the supremacy of which they had made war. The South was not allowed to obey the very Constitution in the name of which its people had been vanquished.

CHAPTER X

PRESIDENTIAL ELECTION OF 1868

ALL the reconstructed States having been admitted to representation in the House, and all but Georgia having been admitted to representation in the Senate, there were but three of the Southern States,-Virginia, Mississippi, and Texas,remaining wholly unrepresented.

We recur now to the Presidential election of that year. We recall the position of the Republican National Convention held in May, as expressed in the resolution hereinbefore quoted, at which it was announced that while Negro suffrage was to be inflicted on the South, yet the pledge of the party was given that each Northern State should retain its conceded power over suffrage within its own borders.

In pursuance of this policy of leaving the Northern States their full power over the elective franchise, while imposing Negro suffrage on the South, Congress had,-in July, 1868, as we have seen,-resorted to the unconstitutional expedient of imposing the fundamental condition in the acts admitting the reconstructed States to representation in Congress, whereby it was attempted to make Negro suffrage in those States irrevocable. Some reliance, it is true, was placed on the constitutional validity of these conditions, yet, as we have seen, many of the ablest Senators of the majority denied this, and the condition in the case of Arkansas,—that being the initial case, failed to be stricken out by a majority of one vote only. The main reliance, however, was on the impossibility of recalling the right when once granted. This view was expressed with great force by Mr. Edmunds in a subsequent debate when opposing the Fifteenth Amendment.

He said: "In all the Southern States . . . . they [the Negroes] have acquired a right to vote under local Constitutions, to say nothing of the Fourteenth article; and they will never lose it except through a convulsion as great as any we