be done each of these States by not giving it the additional Fractions. Representative than to the other States by giving it. By this apportionment nine States, to wit: New Hampshire, Vermont, New York, Pennsylvania, Indiana, Tennessee. Louisiana, Alabama, and Florida, get each one more member than the number assigned by the bill which has already become a law, and the committee report the accompanying bill, giving each of these States an additional Representative, and recommend its passage. Ho. Doc. 42d Cong. 2d Sess., No. 28. counted. By this census three-fifths of four and a half million of Two-fifths "other persons" are counted in the basis of representation who would have been excluded under their former condition. This adds 20 members to the section where they reside. The grievance of those claiming the increase and all the political status for themselves, is, that the race votes, and is eligible to the honors, and divides them. To complete the numbers of people of the United States the following population of the territories is added. The population of the States corresponds with the foregoing table, with a slight variation of 388: 50S. BUT WHEN THE RIGHT TO VOTE AT ANY If the right to vote be ELECTION, &C., IS DENIED, THE BASIS OF REPRESENTATION denied, THEREIN SHALL BE REDUCED," &c. Although some of what is the the States still have a property or educational basis, it is not consequence! remembered that any reduction has been claimed on that account. None are now excluded from right to vote because of participation in the rebellion. The attempt in Tennessee, Missouri, and Arkansas broke down. No deduction was made for disqualification of any of the male population as voters. All it did. What are the relations of the Indians not taxed? How has regarded them? This reduction of representation establishes that the question as to who should vote was still left with the States; and it excludes the idea that women, who are not allowed to vote by the State constitutions, may yet assert the right under this amendment. Minor v. Happersett, 21 Wall., 177. 509. "EXCLUDING INDIANS NOT TAXED." The fourteenth amendment has no effect whatever upon the status of the Indian tribes within the limits of the United States, and does not annul the treaties previously made. The relations which exist between the Government and the Indian tribes, making it plain that Congress has uniformly respected the right of the Indians to govern themselves. Congress has never regarded the Indian tribes as subject to the municipal jurisdiction of the United States. On the contrary they have uniformly been treated as nations, and in that character held responsible for the crimes and outrages committed by their members, even outside of territorial limits. Indians na- And inasmuch as the Constitution treats Indian tribes as betions? longing to the rank of nations, capable of making treaties, it is evident that an act of Congress which should assume to treat the members of a tribe as subject to the municipal jurisdiction of the United States would be unconstitutional and void. In the opinion of the committee the Constitution and the treaties, acts of Congress, and judicial decisions referred to, all speak the same language upon this subject, and all point to the conclusion that the Indians, in tribal condi tion, have never been subject to the jurisdiction of the United States in the sense in which the term "jurisdiction" is employed in the fourteenth amendment to the Constitution. The Government has asserted a political supremacy over the Indians, and the treaties and laws quoted from, present these tribes as "domestic, independent nations," separated from the States of the Union, within whose limits they are located, and exempt from the operation of State laws, and not otherwise subject to the control of the United States other than is consistent with their character as separate political communities or States. Their right of self-government and to administer justice among themselves after their rude fashion, even to the extent of inflicting the death penalty, has never been questioned. And while the United States have provided by law for the punishment of crimes committed by Indians straggling from the tribes, and crimes committed by Indians upon white men lawfully within the reservations, the Government has carefully abstained from attempting to regulate their domestic affairs and from punishing crimes committed by one Indian against another in the Indian country. Whenever we have dealt with them it has been in their collective capacity as a tribe, and not with their individual members, except when such members were separated from the tribe to which they belonged, and then Crimes. tion. we have asserted such jurisdiction as every nation exercises Jurisdicover the subjects of another independent sovereign nation entering its territory and violating its laws. During the war, slavery had been abolished and the former Slavery. slaves had become citizens of the United States, consequently, in determining the basis of representation in the fourteenth amendment, the clause "three-fifths of all other Page 67, persons" is wholly omitted, but the clause "excluding In- clause 3. dians not taxed" is retained. The inference is irresistible that the amendment was intended to recognize the change in the status of the former slave which had been effected during the war, while it recognizes no change in the status of the Indians. *The Indians were excluded because Why the they were not citizens. For these reasous the committee do Indians are not hesitate to say that the Indian tribes within the limits of the United States, and the individuals, members of such tribes, while they adhere to and form a part of the tribes to which they belong, are not, within the meaning of the fourteenth amendment, "subject to the jurisdiction" of the United States, and therefore that such Indians have not been made citizens of the United States by virtue of that amendment; and the committee say that if they are correct in this conclusion it follows that the treaties heretofore made between the United States and the Indian tribes are not annulled by that amendment. excluded. tions exist? The committee say, in conclusion, "it is pertinent to re- How can mark that treaty relations can properly exist with Indian treaty rela. tribes or nations only; and that when the members of a tribe are scattered they are merged in the mass of our people and become equally subject to the jurisdiction of the United States. It is believed that some treaties have been concluded and ratified with fragmentary straggling bands of Indians who had lost all just pretensions to the tribal character, and this ought to admonish the treaty-making power to use greater circumspection hereafter." (Carpenter's Report, 14 Dec., 1870.) So far as this report denies citizenship to the Indian tribes Remarks. it may be correct, because the people did not intend otherwise in adopting the amendment. But the assumption that the tribes are independent sovereign States is not supported by judicial authorities or legislative action. They are dependent subordinate States. Worcester v. Georgia, 6 Pet., 515. disqualify SECTION 3. No person shall be a Senator or Repre- Repeat the sentative in Congress, or elector of President and ing clause Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of The officers Congress, or as an officer of the United States, or as disquali fied. Who are included in the disability? Page 250, note 412. What is the true grammatical construc tion of this phrase? Page 250, clause 3, note 412. a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability. 510. "HAVING PREVIOUSLY TAKEN AN OATH." It will be observed that the persons included in this disability clause are the same who had taken an official oath under clause 3 of article VI. It was intended to make the obligations of the official oath to support the Constitution of the United States higher than the natural allegiance which every man bears to his Governinent. And it is not confined to those who are or were in official position at the time of engaging in insurrection, rebellion, or treasonable practices. 511. "SHALL HAVE ENGAGED IN INSURRECTION OR REBELLION," &c. The grammatical form of the sentence places the verb in the future perfect tense, or, as older grammarians called it, in the future pluperfect tense. The nomin ative or subject of this verb is "who," which is the pronoun for the antecedent "person." Grammatically construed, the sentence would mean that no person, who, having taken the official oath required by article VI, clause 3, who afterward shall have engaged in insurrection, &c., shall be a Senator, Representative in Congress, or hold office. And viewed as an amendment to article VI, clause 3, (to which it properly belongs,) it would read: The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound, by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States." With the amendment: But if any of these persons, after having taken this oath, shall engage in insurrection or rebellion against the United States, or give aid or comfort to the enemies thereof, he shall not hold any of these offices, until Congress, by a vote of two-thirds of each House, shall have removed such dis What is the ability." grammatic Thus viewed it would have no reference to the past, and, al construe. for the future it would be a wholesome, conservative guaranty sentence? for peace. Those who oppose this grammatical construction tion of the derive little aid from the participial phrase, who having Criticism. previously taken an oath." This fixes a point of time anterior to the act of treason, which is necessary to the idea of a perfect future tense. Indeed, they would force the sentence to read: "No person, who, having previously taken an oath to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same," "shall be a Senator," &c. But the grammatical construction has never arrested the The comattention of the Congress which proposed the amendment, mon error. the thousands of legislators who voted its ratification, the thousands whose disabilities have been removed, nor the Congressmen who have voted the acts of oblivion. By common consent they construe the sentence as though it read "No person shall be a Senator, &c., who, having previously taken the official oath to support the Constitution of the United State has engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." Thus the amendment has been made to apply to, and exhanst itself upon, the late rebellion. The author would be called little less than a lunatic who should insist that the future form of the verb is never substituted for the imperfect or perfect tense. And did not the author believe that his book will be read after the generation which perpetrated the literary and more serious blunders of the unhappy civil war, shall have passed away, he would not have ventured upon the suggestion of inapt grammar. 66 this remov al of disa bitities. 512. BUT CONGRESS MAY BY A TWO-THIRDS VOTE RE- Repeat the MOVE SUCH DISABILITY." It has been variously estimated history of that at the time of its original insertion in the Constitution it included somewhere from 15,000 to 30,000 persons, but as near as I can gather from the facts in the case it included only 18,000 men in the South. This disability was hardly fixed on the South until we began in this hall and in the Senate chamber, (when we had more than two-thirds Republican in both branches,) to remove it, and the very first bill took that disability from 1,578 citizens of the South. The next bill took it from 3,526 gentlemen. After these bills specifying individuals had passed through, small bills, which I will not further refer to, were passed. In 1872 the Congress of the United States, by the vote of two-thirds of both branches, passed this general law: "That all political disabilities imposed under the third section of the fourteenth amendment of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives in the Thirty-sixth and Thirty-seventh Congresses, officers of the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States." Since that act passed a very considerable number of gentlemen included in it have been specially by name relieved |