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"Being detained at home by indisposition, I was glad of the privilege of at once reading your latest views on the great questions of the day in connection with Reconstruction. For them, and for the heroic spirit with which you take your stand, and determine 'to fight it out on that line,' I offer you my most sincere and fervent thanks. May God preserve your life and health, and enable you to fight it out to a complete victory!"
Hon. Charles Durkee, formerly Senator of the United States from Wisconsin, and then Governor of Utah, wrote from Salt Lake City to Governor Farwell, of Wisconsin :
"I have just finished reading Mr. Sumner's great speech delivered at the Massachusetts State Convention. What a masterly argument! It embodies the condensation of Calhoun, the strength of Webster, and more than the eloquence of Clay. In logic, in illustration, in simplicity of truth, I have never read a state-paper that equals it. Its timely utterance how fortunate for the country! He inspires some of the most vital parts of the Constitution (which heretofore have been a dead letter) with new life and activity. Washington and Lincoln led in the first and second revolutions, but it was left for Charles Sumner to lead in the third, -a revolution in Constitutional and Republican ideas. Be so kind as to thank him, in my name, for this timely effort in behalf of his country and in the cause of the oppressed."
Such words from distant places were an encouragement to the speaker. Evidently he was not alone, nor had he spoken in vain.
QUORUM OF STATES NECESSARY IN ADOPTION OF A CONSTITUTIONAL AMENDMENT.
LETTER TO THE NEW YORK EVENING POST, SEPTEMBER 28, 1865.
TO THE EDITOR OF THE NEW YORK EVENING POST.
S a faithful reader of the "Evening Post" for many years, I have perused your article insisting that all present effort for guaranties of national security and national faith must be postponed, in order to obtain the ratification of the Constitutional Amendment by which slavery is abolished throughout the United States., If the Constitutional Amendment were not already ratified by the requisite number of States, I should doubt if even this most desirable object could be a sufficient excuse for leaving the national freedman and the national creditor exposed to peril, when exertions now can save them. But allow me to inquire if you do not forget, that, according to usage of the National Government in analogous cases, this Amendment has been already. ratified by the requisite number of States, so that at this moment it is valid, to all intents and purposes, as part of the Constitution? There was a butcher once who looked everywhere for his knife, forgetting that he held it between his teeth; there also was the good Dr. Dove, who was in love without knowing it; and you
have laughed, I am sure, at the story told by Southey to illustrate this condition, where the traveller, asking how far it was to a place called "The Pan,” was answered directly, "You be in the Pan now." It seems to me, that, like the traveller, the doctor, and the butcher, you already have what you desire; so that, even according to your programme, the way is clear for insisting upon those other things embraced under "Security for the Future."
The Constitution of the United States decides that "the Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, . . . . which shall be valid, to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States." On these words the simple question arises, What constitutes the quorum?
But the usage of the National Government in analogous cases has determined that the quorum is founded on the States actually participating in the Government. This has been decided in both Houses of Congress. The House of Representatives led the way in fixing its quorum according to actual representation, or, in other words, at "a majority of the members chosen."1 The Senate, after careful consideration and protracted debate, followed in establishing a similar rule.2 The Constitutional Amendment was adopted by both houses organized according to this rule. The national debt has been sanctioned by both houses thus organized. Treaties
1 Thirty-seventh Cong. 1st Sess., July 19, 1861: House Journal, p. 117; Cong. Globe, p. 210.
2 Thirty-eighth Cong. 1st Sess., May 4, 1864: Senate Journal, p. 401; Cong. Globe, p. 2087. See, ante, Vol. VII. pp. 169-175, Speech on the Constitutional Quorum of the Senate.
also with foreign powers have been sanctioned in the Senate thus organized.
Applying this rule, the quorum of States requisite for the ratification of the Constitutional Amendment is plainly three fourths of the States actually participating in the Government, or, in other words, three fourths of the States having "Legislatures." Where a State has no Legislature, it may be still a State, but it cannot be practically counted in the organization of Congress; and I submit that the same rule must prevail in the ratification of the Constitutional Amendment. The reason of the rule is the same in each case. If you insist upon counting a rebel State, having no Legislature, you make a concession to rebellion. You concede to a mutinous State the power to arrest, it may be, the organization of Congress, or, it may be, amendments to the Constitution important to the general welfare. This is not reasonable. Therefore, on grounds of reason as well as usage, I prefer the accepted rule.
If this conclusion needed the support of authority, it would find it in the declared opinion of one of our best law-writers, who is cited with respect in all the courts of the country. I refer to Mr. Bishop, who, in the third edition of his "Commentaries on the Criminal Law," published within a few days, discusses this question at length. In the course of his remarks he uses the following language: "If the matter were one relating to any other subject than Slavery, no legal person would ever doubt, that, when there are States with Legislatures and States without Legislatures, and the Constitution submits a question to the determination of 'the Legislatures of three fourths of the several States,' the meaning is, three fourths of the States which have
Legislatures. In fact, it does not require either legal wisdom or legal acumen to see this, provided we look at the point disconnected from the peculiar subject of Slavery." The learned author then proceeds to illustrate this statement in a manner to which I can see
To my mind all this seems so plain that I am disposed to ask pardon for arguing it. Of course there is no question whether a State is in the Union or out of the Union. It is enough that it is without a Legislature, and on this point there can be no question. Being without a Legislature, it cannot be counted in determining the quorum.
Therefore, beyond all dispute, the Constitutional Amendment has been already ratified by the requisite number of States; so that Slavery is now constitutionally abolished twice,-first, by the Proclamation of President Lincoln, under the war powers of the National Constitution; and, secondly, by Constitutional Amendment. It remains that we should provide supplementary safeguards, and complete the good work that has been begun, by taking care that Slavery is abolished in spirit as well as letter, and that the freedmen are protected by further needed guaranties. Without this additional provision, I see small prospect of that peace and reconciliation which are the object so near our hearts.
I am, Sir, your obedient servant,
BOSTON, 28th September, 1865.
1 Vol. I. § 776, note.