to 15, with the following amendment offered by Mr. Edmunds of Vermont:

    And be it further enacted, That this act shall take effect with the fundamental and perpetual condition that within said state of Nebraska there shall be no abridgment or denial of the exercise of the elective franchise or of any other right to any person by reason of race or color, excepting Indians not taxed.
   On the 15th of January the House passed the bill by a vote of 103 to 55 after adopting the following amendment, offered by Mr.

Franklin Sweet


Early settler, Richardson county, Nebraska

Boutwell of Massachuusetts (sic), as a substitute for the Edmunds amendment:

    Strike out the third section in the following words: And be it further enacted, That this act shall take effect with the fundamental and perpetual condition that within said state of Nebraska there shall be no abridgment or denial of the exercise of the elective franchise, or of any other right to any person by reason of race or color (excepting Indians not taxed,) And insert in lieu thereof the following:
    And be it further enacted, That this act shall take effect with the fundamental and perpetual condition that within said state of Nebraska there shall be no abridgment or denial of the exercise of the elective franchise or of any other right to any person by reason of race or color, excepting Indians not taxed; and upon the further fundamental condition that the legislature of said state, by a solemn public act, shall declare the assent of said state to the said fundamental condition, and shall transmit to the president of the United States an authentic copy of said act, upon receipt whereof the president by proclamation, shall forthwith announce the fact, whereupon said fundamental condition shall be held as a part of the organic law of the state; and thereupon, and without any further proceeding on the part of congress, the admission of said state into the union shall be considered as complete. Said state legislature shall be convened by the territorial government within thirty days after the passage of this act, to act upon the condition submitted herein.

   The following day the Senate concurred in this amendment. On the 29th of January President Johnson vetoed the bill on the ground that the part of it composed of the Boutwell amendment was unconstitutional, and he suggested that the conditions ought to be submitted to a vote of the people.
   On the 8th of February the bill was passed in the Senate over the President's veto by a vote of 31 to 9. The nine in opposition were Charles R. Buckalew of Pennsylvania, Garrett Davis of Kentucky, James R. Doolittle of Wisconsin, LaFayette S. Foster of Connecticut, Thomas A. Hendricks of Indiana, Edwin D. Morgan of New York, Daniel S. Norton of Minnesota, David T. Patterson of Tennessee, and Willard Saulsbury of Delaware. Four of these -- Doolittle, Foster, Morgan, and Norton -- were republicans, and Foster was president of the Senate. In the list of the ayes are such well-known names as John Sherman, Charles Sumner, Lyman Trumbull, and Benjamin F. Wade. The next day the bill passed the House by a vote of 120 to 43.

   The question of the right of Congress to impose the negro suffrage condition precedent to admission occasioned a great debate in the Senate, the most polemical part of which was contributed by two great lawyers -- Edmunds of Vermont on the affirmative and Reverdy Johnson of Maryland on the negative. Some of the ablest republican senators opposed the contention of Edmunds -- among them Wade and Sherman of Ohio, Fessenden of Maine, Kirkwood and Grimes of Iowa, and Doolittle and Howe of Wisconsin. The strongest opponents of Edmunds's position, in addition to




Franklin Sweet


Governor of Nebraska, 1908-1910



Reverdy Johnson, were Doolittle of Wisconsin, Howard of Michigan, and Hendricks of Indiana. Wade at first opposed the condition as unconstitutional, but while he did not seem to think it was worth while to press it, he admitted that he had been technically converted by the argument. Reverdy Johnson argued with great force that the effect of Edmunds's contention was that "Congress has a right to form a constitution for the people of a territory who may desire to come in as a state." Mr. Sherman said emphatically: "I am in

Franklin Sweet


Prominent lawyer, Omaha, Nebraska

favor of admitting Nebraska without any amendment, without any qualification, without any condition, and I think it is an unwise policy to impose conditions on the admission of Nebraska." But while the polemical power and habit of Edmunds did not convince, neither did the insistent moral consistency of Sumner move or trouble the evasively practical Sherman; and so he added:

    But still as the friends of the measure think that the declaration drafted by the senator from Vermont will strengthen the bill, I am rather disposed to vote for it. I believe it will be entirely nugatory. I do not believe that we have the power by any act of Congress to restrain the people of Nebraska from framing such a constitution, republican in form, as they choose. I have no doubt they can amend this constitution or they can disregard this condition; it does not operate on them; it is not really in the nature of a condition. I vote for it simply because I believe its adoption will strengthen the main measure and enable us to admit the state of Nebraska into the union.
   Wade and Sherman emphasized the fact that the constitution of their own state, Ohio, had the same white restriction of the suffrage as that of Nebraska. Wade pressed also the proposition that this was a question for the states alone. "Up to this hour the regulation of the elective franchise has been regarded as a state question. It belongs, under the constitution as it now stands, exclusively to the states of the union." Wade urged also that "one reason why the territory of Nebraska should be very soon admitted is that the land there is being taken up by your college scrip, by your railroad grants, &c." Soon there would not be enough left "to give to the state for school purposes and for various other purposes those grants which we have uniformly made to new states." Sherman argued along the same general lines, and, like Wade, insisted that the question of relative population was not important, and that, at any rate, Nebraska had more inhabitants than most of the existing states contained at the time of their admission. Wade said that the bureau of statistics of the treasury department had been ordered "to make out as well as they could the number of inhabitants"; and their return showed 88,530. When it was pointed out that the vote at the last October election was only 9,136, Wade insisted that owing to the scattered condition of the population this vote was an uncertain guide. The fact that the federal census of 1870 showed a population of 122,993 tends to support Wade's contention that the estimate of the bureau of statistics was very conservative; but since the impetus to growth resulting from the advent of the railways to the territory was very strong in the years immediately following 1867, no accurate deduction can be made from a comparison of the



estimate of that year and of the census of 1870.
   Though the advocates of the condition were clearly beaten in the debate, the majority seemed disposed to take Sherman's and Wade's view, that it would not be of practical importance. This indeed turned out to be the fact, because before the provision was tested in the courts, as it otherwise would have been, the adoption of the fifteenth amendment to the constitution superseded it. Charles Sumner strongly advocated the amendment of Senator B. Gratz Brown of Missouri, which provided that the people should ratify at the polls an agreement against restriction of negro suffrage. This he thought would clinch the question, while ratification by the legislature might not. Mr. Sumner took the broad view of the moralist that discrimination against the negro as to suffrage was repugnant to the principles of the Declaration of Independence and therefore of the federal Constitution. The restrictive provision of the Nebraska constitution if not annulled by the act of Congress, would render the government unrepublican. Mr. Kirkwood very pertinently retorted that the constitutions of twenty out of the twenty-six states then comprising the Union contained this very restriction against negro suffrage, and he thought it strange that Congress should not have known what a republican form of government was when it admitted all these states; and then he demanded, "Why do you not require us in Iowa to make our constitution republican in form?"
   Wade attacked Sumner for calling Nebraska a "rebel state" and the proposed constitution a "rebel constitution"; but Sumner replied that he read that language from a letter from a citizen of Nebraska. Wade retorted that the republican members of the legislature had voted unanimously for the constitution and only copperheads voted against it. He said the constitution was copied almost literally from that of Wisconsin, "and as to the negro restriction they seem to have followed the usual form."
   Mr. Hendricks of Indiana criticised the indifference of those who believed the restriction unconstitutional. "This precedent," he said, "will establish that the Congress of the United States and the territorial legislature have the power to change a constitution that the people have deliberately made." He was willing to accept Brown's amendment -- which Sumner favored, but for a different reason, -- to submit the question to the people instead of the legislature. But party spirit and exigencies demanded haste, and won the day, alike

Franklin Sweet


over constitutional conservatism and the determination of Sumner to have the restriction insured beyond question of a popular vote.
   The debate in the House was no less spirited than in the Senate. George S. Boutwell, the mover of the conditional restriction as it passed, Thaddeus Stevens, James A. Garfield, and William B. Allison were the leading republicans who supported the measure, but such noted members of the same party as John A. Bingham, James G. Blaine, Henry L. Dawes, Columbus Delano, and Robert S. Hale stoutly opposed it. Mr. Boutwell rose to the same transcendental or speculative moral heights as Mr. Sumner occupied in the Senate, and insisted that "when a state deprives a particular class of men of participation in the govern-



ment in which they live, just to that extent the government fails to be republican in form." To this Mr. Delano retorted in the same strain as Kirkwood's retort in the Senate, that "it is worse than idle for us to assert that the form of government presented by Nebraska (in her constitution) is not republican in form. The whole history of the nation gives the lie to the assertion that the Nebraska state government is not republican in form. . . . Upon what principle can we say to the people who live in Nebraska, 'You shall not come into this Union as a state unless you come upon conditions other than those which have been recognized as fit to constitute a state a partner in the great government of the United States ever since that government was formed?"
   Mr. Maynard took issue with the contention that the adoption of the condition by the legislature would give moral assurance of its observance. "I submit that the moral assurance will be the other way. The people of Nebraska have adopted a constitution in which they have restricted the right of suffrage to white men . . . We may in passing this bill intimate to them and to the country what our views and principles are, but we have no assurance that those principles will be regarded or that our views will be adopted by them. On the other hand all the assurance we have is that they will be disregarded, and that our views will not be adopted."
   Mr. Bingham took the same ground as Sherman had taken in the Senate: "I would not vote for this bill but for the conviction that the section in question (the Edmunds amendment) has no more validity than so much blank paper, and that so much of the bill as is valid is just and ought to pass that the people of Nebraska may be admitted as a state of the Union." Again, if the third section is passed and is valid in law, Nebraska becomes a state, not upon the constitution made by the people but on a constitution made by Congress, "and I venture to affirm that the legislation which is attempted to be imposed upon this state by the third section of this bill has no parallel in anything that has ever before been attempted by an American Congress."
   Mr. Bingham was consistent and denounced the Boutwell amendment on the same ground: "What is proposed by this amendment? It is this: That the legislature of a state shall change its organic law in direct contravention of the express authority of the people of that state and only by authority of Congress."
   Mr. Blaine opposed the Edmunds amendment on the same ground -- its utter invalidity. "I protest for one against humbugging myself or being humbugged, or assisting in humbugging my constituents." But unlike Mr. Bingham, he would compromise with humbuggery by consenting to be half humbugged himself and to humbug the Nebraska constitution, and to this end he asked Mr. Ashley of Ohio, who had yielded him time to speak, for leave to propose an amendment providing for the assent of the legislature or of the people, but was refused.
   Mr. Dawes pointed out that the bill itself declared the constitution which the people of Nebraska had adopted to be republican in form, and the inconsistency of undertaking to interfere when this condition had been complied with, and he stoutly denied that Congress had any right to do so. But he thought the difficulty could be overcome by submitting it to a vote of the people; and again Mr. Ashley refused consent to an amendment for that purpose. Mr. Morrill of Maine showed, as Mr. Dawes had shown, that "the first section of the bill admits the state without any conditions, at all, 'upon an equal footing with the original states in all respects whatsoever,' while the last proposes fundamental and perpetual conditions." He rightly said that it would raise a question for the courts, "and I prefer not to go into the courts at all on such a question.
   He argued that there was not need to hurry -- "Let us welcome Nebraska but not until she is ready, as I have no doubt she soon will be." Mr. Allison of Iowa believed the condition precedent was within the power and the duty of Congress and would be binding upon the people of the state when assented to by the legislature. Mr. Garfield thought it was doubtful that the Boutwell amendment "does legally affix that condition," but he believed that the people would not break the covenant



they would make in accepting the condition through the legislature.1 It was generally assumed in the course of the debate that there were then about one hundred negroes in Nebraska who would be entitled to vote under the condition of the act. More than thirty years later Mr. Boutwell applied the same uncompromising moral spirit and broad moral principle to the Philippine question, and no doubt if Mr. Sumner had lived he would have stood with Mr. Boutwell in regard to this question as he did in regard to the Nebraska question. To the people of today who face the actual and generally recognized breakdown of the thirty years' experiment in universal negro suffrage, the matter-of-fact, confident assumption of the oratory of that Nebraska debate that it must and would be established as a matter of unquestionable moral obligation, without thought of its practicability, comes as an almost startling echo of the fallibility of human judgment and the vanity of human selfishness. Congress failed to pass the Colorado bill over the president's veto, and so Nebraska was the first and the last state to come into the Union on such capricious, ex post facto compulsion. It is true that Congress required that the constitutional convention of Nevada, held in 1864, "shall provide, by an ordinance, irrevocable without the consent of the United States and the people of said state, that there shall be neither slavery nor involuntary servitude in the said state." But that requirement was at most a condition precedent, while the Nebraska requirement was a condition subsequent. Besides, in 1864 there was no longer any slavery in fact, and it was well known that it was about to be formally abolished by the pending thirteenth amendment, while a large part of the most intelligent people of the country were of the opinion that universal enfranchisement of the negroes would be impracticable and pernicious -- an opinion which experience seems to have confirmed.
   Mr. Morrill's fear that the Boutwell condition would throw the question into the courts was justified. Reverdy Johnson wrote to a prominent democrat of Nebraska an opinion that the state constitution had not been amended or altered by the congressional scheme, and so statehood had better be accepted, "and thus in law and effect exclude negro voting."2 Accordingly, when twenty or more negroes attempted to vote at the Omaha municipal election, early in March, 1867, their constitutional right to do so was denied. The Herald charged that the negroes were marched up to the polls under armed leaders wanting a fight, and the Republican denied the truth of this charge and alleged that Mayor Miller and Sheriff Dellone both declared that the negroes had no right to vote and that a mob of four hundred armed democrats backed up their declaration.
   The constitution of Missouri, framed in June, 1820, contained this provision: "It shall be their [the general assembly's] duty, as soon as may be, to pass such laws as may be necessary to prevent free negroes and mulattoes from coming to, and settling in this state, under any pretext whatever."
   The principal reason for this drastic measure doubtless lay in the fear that free negroes coming in contact with the slaves might stir them to mutiny or other trouble. But the Congress imposed as a condition precedent to the acceptance of the constitution that the legislature of Missouri should agree, in substance, not to enforce this restriction. While the legislature -- June 26, 1821 -- assented to the condition, after a fashion, it did so in a spirit of independence and with a plainness of speech worthy of a better cause, and which Nebraska might have emulated to her honor and dignity.
   It insisted that as the state came into the Union under the constitution and laws of the United States, and were bound thereby, that sufficed.

   Although this general assembly are of opinion that the congress of the United States have no constitutional power to annex any condition to the admission of this state into the federal union, and that this general assembly have no power to change the operation of the constitution of this state, except in the

   1 These debates took place in January 1867, and are recorded in the Cong. Globe, pt. 1, 2d sess., 39th Cong.
   2 Omaha Republican, March 1, 1867, quoting Omaha Herald.

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