The and yeas nays 26. . . .

nays were ordered, and being taken resulted

yeas 22,

So the evidence proposed to be offered was decided to be inadmissible. Mr. EVARTS, (to the witness.) Mr. Welles, at any of the cabinet meetings held between the time of the passage of the civil-tenure act and the removal of Mr. Stanton, did the subject of the public service as affected by the operation of that act come up for the consideration of the cabinet? ...

The WITNESS. I answer yes.

By Mr. EVARTS:

Q. Was it considered repeatedly?

A. It was on two occasions, if not more.

Q. During those considerations and discussions was the question of the importance of having some determination judicial in its character of the constitutionality of this law considered?

Mr. Manager BUTLER. Stay a moment; we object. . .

The CHIEF JUSTICE. If the question be objected to it will be reduced to writing. . . .

The offer was handed to the desk and read, as follows:

We offer to prove that at the cabinet meetings between the passage of the tenureof-civil-office bill and the order of the 21st of February, 1868, for the removal of Mr. Stanton, upon occasions when the condition of the public service as affected by the operation of that bill came up for the consideration and advice of the cabinet, it was considered by the President and cabinet that a proper regard to the public service made it desirable that upon some proper case a judicial determination on the constitutionality of the law should be obtained.

Mr. Manager BUTLER. Mr. President and Senators, we, of the managers, object, and we should like to have this question determined in the minds of the senators upon this principle. We understand here that the determination of the Senate is, that cabinet discussions, of whatever nature, shall not be put in as a shield to the President. That I understand, for one, to be the broad principle upon which this class of questions stand and upon which the Senate has voted; and, therefore, these attempts to get around it, to get in by detail and at retail-if I may use that expression - evidence which in its wholesale character cannot be admitted, are simply tiring out and wearing out the patience of the Senate. I should like to have it settled, once for all, if it can be, whether the cabinet consultations upon any subject are to be a shield. Upon this particular offer, however, I will leave the matter with the Senate after a single suggestion.

It is offered to show that the cabinet consulted upon the desirability of getting up a case to test the constitutionality of the law. It is either material or immaterial. It might possibly be material in one view if they mean to say that they consulted upon getting up this case in the mode and manner that it is brought here, and only in that event could it be material. Does the question mean to ask if they consulted and agreed together to bring up this case in the form in which it has been done? If they agreed upon any other proceeding it is wholly immaterial; but if they agreed upon this case, then we are in this condition of things, that they propose to justify the President's act by the advice of his subordinates, and substitute their opinion upon the legality of his action in this case for yours.

Senators, you passed this tenure-of-office act. That might have been done by inadvertence. The President then presented it to you for your revision, and you passed it again notwithstanding his constitutional argument upon it. The President then removed Mr. Stanton, and presented its unconstitutionality again, and presented also the question whether Mr. Stanton was within it, and you, after solemn deliberation and argument, again decided that Mr. Stanton was within its provisions so as to be protected by it, and that the law was constitutional. Then he removed Mr. Stanton on the 21st of February, and presented the same question to you again; and again, after solemn argument, you decided that Mr. Stanton was within its provisions and that the law was constitutional. Now they offer to show the discussions of the cabinet upon its constitutionality to overrule the quadruple opinion solemnly expressed by the Senate upon these very questions-four times upon the constitutionality of the law, and twice upon its constitutionality and upon the fact that Mr. Stanton was within it. Is that testimony to be put in here? The proposition whether it was desirable to have this constitutional question raised is the one presented. If it was any other constitutional question in any other case, then it is wholly immaterial. If it is this case, then you are trying that question, and they propose to substitute the judgment of the cabinet for the judgment of the Senate. Mr. EVARTS. . . . Now, senators, the proposition can be very briefly submitted to you.

By decisive determinations upon certain questions of evidence arising in this cause, you have decided that, at least, what in point of time is so near to this action of the President as may fairly import to show that in his action he was governed by a desire to raise a question for judicial

determination, shall be admitted. About that there can be no question that the record will confirm my statement. Now, my present inquiry is to show that within this period, thus extensively and comprehensively named for the present, in his official duty and in his consultations concerning his official duty with the heads of departments, it became apparent that the operation of this law raised embarrassments in the public service, and rendered it important as a practical matter that there should be a determination concerning the constitutionality of the law, and that it was desirable that upon a proper case such a determination Ishould be had. I submit the matter to the Senate with these observations. . . .

The question being taken by yeas and nays, resulted yeas 19, nays 30.

So the Senate ruled the offer to be inadmissible.

Trial of Andrew Johnson . before the Senate

on Impeachment by the House of Representatives for High Crimes and Misdemeanors (Washington, 1868), I, 696–700 passim.

155. The Fifteenth Amendment (1869)

BY SENATOR HENRY WILSON

Although Wilson entered the Senate, in 1855, with the reputation of a skilful politician who had made use of the Know-Nothing movement in order to float hims If into office, his early and earnest attachment to the anti-slavery cause, and his great faith in the success of the Republican party, soon secured for him recognition as a worthy colleague of Sumner. His loyalty to freedom and the negro race continued during the reconstruction period, at the end of which he was elected vice-president. This extract is from a speech in the Senate. — Bibliography as in No. 145 above.

ST

IR, it is now past six o'clock in the morning a continuous session of more than eighteen hours. For more than seventeen hours the ear of the Senate has been wearied and pained with anti-republican, inhuman, and unchristian utterances, with the oft-repeated warnings, prophecies, and predictions, with petty technicalities, and carping criticisms. The majority in this Chamber, in the House, and in the country, too, have been arraigned, assailed, and denounced, their ideas, principles, and policies misrepresented, and their motives questioned. Sir, will our assailants never forget anything nor learn anything? Will they never see themselves as others see them? Year after year they have continuously and vehemently, as grand historic questions touching the interests of the

country and the rights of our countrymen have arisen to be grappled with and solved, blurted into our unwilling ears these same warnings, prophecies, and predictions, their unreasoning prejudices and passionate declamations. Time and events, which test all things, have brought discomfiture to their cause and made their illogical and ambitious rhetoric seem to be but weak and impotent drivel.

In spite of the discomfitures of the past, the champions of slavery and of the ideas, principles, and policies pertaining to it are again doing battle for their perishing cause. Again, sir, we are arraigned, again misrepresented, again denounced. Why are we again thus misrepresented, arraigned, and denounced? We, the friends of human rights, simply propose to submit to our countrymen an amendment of the Constitution of our country to secure the priceless boon of suffrage to citizens of the United States to whom the right to vote and be voted for is denied by the constitutions and laws of some of the States. This effort to remove the disabilities of the emancipated victims of the perished slave systems, to clothe them with power to maintain the dignity of manhood and the honor and rights of citizenship, spring from our love of freedom, our sense of justice, our reverence for human nature, and our recognition of the fatherhood of God and the brotherhood of man. This effort, sanctified by patriotism, liberty, justice, and humanity, is stigmatized in this Chamber as a mere partisan movement. Who make it a partisan movement? The men who are actuated by an imperative sense of duty, or the men who instinctively seize the occasion to arouse the unreasoning passions of race and caste and the prejudices of ignorance and hate? . . .

. . Because frivolity and fashion put their ban upon the black man, be his character ever so pure or his intelligence ever so great, statesmen in this Christian land of republican institutions must deny to him civil and political rights and privileges. Because social life has put and continues to put its brand of exclusion upon the black man, it is therefore the duty of statesmanship to maintain by class legislation the abhorrent doctrine of caste in this Christian Republic. This is the argument, the logic, the position of Senators. . .

Honorable Senators have grown weary in reminding us that it would be a breach of our plighted faith to submit to the State Legislatures this amendment to the Constitution to secure to American citizens the right to vote and to be voted for. They tell us we were pledged by our national convention of 1868; that we were committed to the doctrine that the right to regulate the suffrage properly belonged to the loyal States.

So the earlier Republican national conventions proclaimed that slavery in the States was a local institution, for which the people of each State only were responsible. But that declaration did not stand in the way of the proclamation of emancipation, did not stand in the way of the thirteenth article of the amendments of the Constitution, did not stand in the way of that series of aggressive measures by which slavery was extirpated in the States. Slavery struck at the life of the nation, and the Republican party throttled its mortal foe. The Republican party in the national convention of 1868 pronounced the guarantee by Congress of equal suffrage of all loyal men at the South as demanded by every consideration of public safety, gratitude, and of justice, and determined that it should be maintained. That declaration unreservedly committed the Republican party to the safety and justice of equal suffrage. The declaration that the suffrage in the loyal States properly belonged to the people of those States meant this, no more, no less that under the Constitution it belonged to the people of each of the loyal States to regulate suffrage therein.

Senators accuse us of being actuated by partisanship, by the love of power, and the hope of retaining power; yet they never tire of reminding us that the people have in several States pronounced against equal suffrage and will do so again. I took occasion early in the debate to express the opinion that in the series of measures for the extirpation of slavery and the elevation and enfranchisement of the black race the Republican party had lost at least a quarter of a million of voters. In every great battle of the last eight years the timid, the weak faltered, fell back or slunk away into the ranks of the enemy. Yes, sir; while we have been struggling often against fearful odds, timid men, weak men, and bad men, too, following the examples of timid men, weak men, and bad men, in all the great struggles for the rights of human nature, have broken from our advancing ranks and fallen back to the rear or gone over to the enemy, thus giving to the foe the strength they had pledged to us. But we have gone on prospering, and we shall go on prospering in spite of treacheries on the right hand and on the left. The timid may chide us, the weak reproach us, and the bad malign us, but we shall strive on, for in struggling to secure and protect the rights of others

we assure our own.

Appendix to the Congressional Globe, 40 Cong., 3 sess. (Rives and Bailey, Washington, 1869), 153-154 passim, February 8, 1869.