The Montrose Democrat. (Montrose, Pa.) 1849-1876, May 15, 1866, Image 1

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    A. J. 6ERRITSON, Publisher. t
Hon. Charles Denison,
On amending the tonstitution ; delivered
in the House of Representatives,
January 31, 1866.
The House being in the Committee of
the Whole on the State of the Union--
Mr. DENISON said,;
Mr. CLIAIDMAN : I voted a few days
since against a proposition to amend the
Constitution of the United States in such
manner as to prevent any State from levy
itez taxes to pay debts contracted in car
rying on the rebellion ; and as my vote
was different from that of all the Demo
crats of my own State, and most of the
Democrats of the House, I have desired
this opportunity to explain, not the vote,
but the reasons for the vote, as a mark of
respect for the opinions of my colleagues
and the three hLn Ired and fifty thousan 1
Democratic voters in my own State,
whose i.iterests and opinions we are pre
slimed in some manner, to represent; and
as I intend to give the same vote upon
some twenty-five or thirty similar propo.
t,itions now pending before Congress, I
shall explain my views of the power to
amend the Federal Constitution more ful
ly on that account. And yet I am not
unmindful of the fact that one who pro
poses to discuss the power to amend the
Constitution must appear like one repeat
big a tale twice told. And 1 further state
that I do not speak for any side of this
House, nor any party of men, not even
for my own district, unless my constitu
ents choose to adopt what I have to say ;
so that no one is accountable for such
views as I may utter excepting myself.
The proposition against which I voted
was introduced in this House, and under
the pressure of the previous question
passed without debate, v. ithout consider
ation, and with very extraordinary and in
decent haste, considering the great pow
er which it proposes to moister from the
States to the Federal Government and
the Federal courts.
Under this amendment the Federal
Government would have the right and the
power to inquire into the constitutionali
ty of an act levied to repair a township
bridge; to stand between the State and
its tax-payer, and superint:nd ti e collect
ine and disbursing of all taxes in a State
lest the detest paid may have been con
tracted in carrying on the rebellion ;
a tax levied and collected f ,r a lawful
purpose might be diverted af,. r . it had
reached the treasury, and it would then
he a tnost interesting employment for the
Supreme Curt to compel the State to re
fund to the citizens the taxes improperly
collected or improperly laid out.
The only good I can see in this
-very great change in the organic law of
this nation, is that the Supreme Curt
would not be idle for the want of besi
ness, and its judges would not have flute
to travel about the country mal.i tg
speeches to the negroes, and in Oat way
electioneering f n- the office of Pi e-ident.
The provision will be found to be imprac
ticable and worthless.
Nor would I desire that the Federal
Government or any State government
should assume to pay or levy taxes upon
the citizen to pay, debts contracted in
carrying on the rebellion. God knows we
have debts enough of our own to pay.—
Nor do I know of but one class of men
who intend that the Federal Government
shall assume and pay the debts of the
confederate States, and that embraces ex
treme abolitionists, or that class of men
who claim that such States were alien en
emies, and are now conquered provinces,
for they well know that, as such, the con
queror takes the provinces with their bur
dens upon them ; that if they are success
ful in thus holding, they must, according
to the laws of nations,paytheirdebts. And
they must further know, that in pursu
ance of this well settled principle of in
ternational law, Great Britain is even
now gathering up her accounts to make
a demand upon our Government for the
payment of the debts of the confederacy,
and if the theory of the Radicals be true,
she will make you pay them. But I am
not willing to pay their debts, nor in fa
vor of so treating them as to make the
Federal Government in any manner liable
for them. Nor is it necessary to alter the
Constitution to meet this end, a remedy
already being provided in the Supreme
Court for the express purpose, and which
would most assuredly decide against the
paymedtof any suolrdebt.
But, sir, "I have ottier reasons for my
vote, and to my mind higher considera
tions than can arise from taxes or debts
in any form. It will be observed that the
proposed amendment is to-give' the Fed
eral Government the power and the right
to dictate to sovereign, States the debts
which they shall not pay. This is a very
extraordinary, power to place iq the Fed
eral Constitution, to compel States to re;
pudiate debts, a course which States, like
individuals, are sufficiently orone to fol
low without the excuse which you pro
pose to furnish. And this may be the'
wrong time to set the example of, repudi
ation, until we see ear own vast debt pro:
vided for. More than two thirds of this
House appear to have no doubt of the
policy or the power to make so great a
change in the organic law of this nation.
I deny the policy, and very much doubt
the power, even though you hang upon
your proposal the odious words "rebel
By looking at our files it will be seen
that you have one proposition to grant
the right of suffrage to certain negro sol
diers who served in the war, another to
grant certain lands in pursuance of some
military order of one General Hunter, an
other that no State shall make any dis
tinction of the civil rights of persons re
biding therein on account of color or de
scent, and another providing for colored
persons sitting as jurors, and I believe
some twenty or thirty others.
There is one peculiarity which runs
through all these proposed amendments,
and that is, to add to the powers delega
ted to the Federal Government, and to
that extent take from the reserved rights
of the States.
These propositions have come upon us
with such rapidity and profusion as to in
dic tte that Congress had no other busi
ness to require its attention ; and that the
people bad become so weary of " the best
Government ever devised by the wisdom
of man" t hat they had selected and sent
here the most ultra men in the land to de
stroy it by usurpations of power under
the guise of constitutional amendments.
In my judgment, it is a matter of grave
responsibility to make vital changes 171
the organic law of a nation, mid should
not be done except upon the most urgent
necessity, and upon points wherein we
hive the undoubted right, and at a time
when the public mind is in condition for
s2.rious deliberation. Surely not when
one third of the States arc unrepresented
in Ci:ngress.
It becomes us, as we regard the oath
which we have taken, to look well at the
charter by which weclaim these powers, to
see if we have the right to make these
changes lest we place acts upon the re
cord of this nation which are evidence of
our presumption, as well as our imbecility,
wickedness and folly.
In order to understand what powers
are placed under the control of two-thirds
of Congress and three fourths of the
States, it is important to look at the--c—on
dition of the States and the people before
the adoption of the Constitution of 1789,
as well as the Constitution itself.
In looking at that period in our history
as a people, the first important paper that
we find is the Declaration of Indepen
dence, standing comparatively alone, and
marking the birth of a great nation. In
that instrument we find three distinct
propositions. The first is, " that all men
are created equal ;" but they did not
state that as the reason for their inde
pendence, or they would have enunciated
the fact, and claimed by virtue thereof
the right to be free; nor did they regard
this abstract proposition the basis of gov
ernment, excepting so far as it applied to
themselves and the white people whom
they represented, for they then had two
distinct races of men in their midst who
were not then, nor have they since, been
permitted to realize the great truth, "that
all men are created equal." Neither the
Indian nor the negro have been permitted
to participate in the affairs of this Gov
ernment up to this hour. The negro was
enslaved and the Indians have been re
moved from land to land, and we appear
to have kept him as an excuse for squan
dering millions of money, which we gen
erally p!ace in the hands of a band of well
organized thieves, who stand between the
Treasury Department and the Indian ;
and that is a most fortunate tribe which
receives one tenth of the money appropri
ated. And yet we continually hear re
peated, " All men are created equal."
The country is now filled with latter
day saints, who claim that it has special
reference to the negro, and are willing to
sacrifice their own Government and the
liberties of their own children to make it
true. And yet it would be fair to pre
sume that the meat men who made our
system of government, understood the
great. truths which they tittered and-the
provisions of the Constitution which they
had established, and were able to apply
them to the ruling of the people.
The second proposition in that instru
ment is that all just, Governments are
founded upon the consent of the govern
ed ; and based upon this second proposi
tion, the colonies no longer consenting to
be governed by Great Britain because
certain of their chartered rights had been
violated and disregarded, the authors of
the Declaration proclaim their third pro
position, "that these colonies are, and of
right ought to be, free and independent
States." And to maintain this conclus
ion they enter into Articles of Confedera
tion, put their men and means in a com
mon fund, fight the battles of the Revolu
tion, obtain their independence, and repu
diate their debts.
The Confederation was merely an
agreement between sovereign Powers,
and provided, in so many words, that each
State should maintain Its sovereignty in
all respects wherein the power had not
been delegated to the Confederation.—
The independence thus acquired left each
State not only free and independent of
Great Britain, but of each other, and, as
such, they had a right to declare war,
make peace, contract alliances with any
other or foreign Power and do any and
all things which sovereign Powers may
do. And it was the representatives of
these Powers that made the Constitution,
and they stated in the beginning of their
labors the objects at which they aimed.
They represented sovereign powers, and
they intended to relinquish enough of the
powers they represented to accomplish
the objects of the Federal Union, and no
more. They left us a very peculiar sys
tem of government, and if sovereignty
means that power over which there is no
superior, whose decrees when made are
final, then our whole system of govern
ment is made up of local sovereignties,
each abso!ute wi•bin its own local
jurisdiction, and acting as so many checks
against the flowing of power into a cen
tralized despotism.
When the people of a township, a coun
ty, or State, have determined by ballot
the choice of officers to execute the laws
of each municipal corporation, they have
exercised one of the attributes of Boyer-
The States furnish the courts to protect
the citizens in his rights — of person and of
property, the descent of estates, and regu
late all of the domestic relations of the
citizen under. the Government. Each
State is as entirely independent of every
other State as if it were a foreign Power,
and just as independent of the Federal
Government within the reserved powers
and in all respects wherein the powers
have not been delegated in the Coustitu-
Lion. And the Federal Government is as
completely a consolidated Government and
as perfect a Union, within the delegated
powers, as it would be if there were no
State governments in existence ; and each
is as completely master of their respective
powers as they would be if the other did
not exist.
It is to the Constitution alone that we
must look to ascertain what powers were
delegated and what reserved, and in the
condv ion of the reserved rights, whether
reserved absolutely to the States, or
whether the reserved rights were to be
taken away by the will of any other power
than the people of the State for whose
benefit the reservation was made.
Any person may invest a portion of his
estate in the stock of a bank, and thus
place that much of his earnings under the
control of the majority of the stockholders
or directors of such bank, but they do not
thereby get any right to control that por
tion of his estate which he retains ; that
part of his property still belongs to him,
and is under his control as much as if he
had no interest in the bank, and he can
not be made to part with it except with
his own free will. So it was competent
for the States when they created this
governmental organization called the Uni
ted States, by the Constitution, to dele
gate therein certain powers and the right
to do certain things, and thus place the
powers delegated under the control of
the Federal majorities, and reserve cer
tain other powers to be controlled by the
people of each State, and for the exercise•
and control of which they were not to be
answerable to any other power.
If the States did thus absolutely and
unconditionally reserve these powers,
then they cannot be taken away by two
thirds of this House and three fourths of
the States any more than the majority of
the stockholders of a bank, in which I
might have stock, could take my horse or
my farm for the use of the corporation,
because the States never placed these re
served powers in the common fund of
powers to be controlled by Federal ma
jorities. Their condition was the same as
to these reserved powers after the adop
tion of the Constitution as before. The
people of each State constituted a sover
eignty before the adoption of that instru
ment. They were.equally sovereign over
the reserved rights after its adoption, and
they cannot be taken away, except by the
will of each State, unless there be some - -
thing in the Constitution to authorize it ;
for a State, like an individual, cannot be
hound further than it agrees to bind itself.
Have the States parted with their abso
lute control over these reserved rights by
agreeing to the power to amend the
Federal Constitution ? If so, then these
powers were not reserved absolutely, but
only retained until the Federal majorities
as represented by two thirds of Congress
and three fourths of the States may choose
to transfer them, against the will of the
people of a State, or it may be one fourth
of the States, from the respective States
to the Federal Government. This point
ought to be settled by the Constitution,
and I think it is. We find there two pro
visions bearing directly upon the power of
amendment. The first is the fifth article,
and is in these words:
"The Congress, whenever two thirds of
both Houses shall deem it, necessary, shall
propose amendments to this Constitution,
or, on application of the Legislatures of
two thirds of the several States, shall call
a convention for proposing amendments,
which in either case, shall be valid to all
intents and purposes, as part of this Con
stitution, when ratified by the Legislatures
of three fourths of the several States, or
by conventions in three fourths thereof; as
the one or the other mode of ratification
may be proposed by the Congress: Pro-
vided, That no amendment which may be
made prior to the year 1808 shall in any
manner affect the first and fourth clauses
in the ninth iiection of the first article ;
and that no State, without its consent,
shall be deprived of its equal suffrage in
the Senate."
And the other is the tenth amendment,
and in the following words :
" The powers not delegated to the Uni
ted States by the Constitution, nor pro
hibited by it to the States, are reserved to
the States respectively, or the people."
The tenth amendment fixes the type of
limitation upon the organic law, and makes
the Federal Government ma of delegated and
not original powers. We are not, there
fore, to take any power by inference.—
The power to be exercised must be clearly
expressed iu the Constitution, or we can
not take it. We have in the fifth article
of the Constitution the right to amend,
for such is the word used, but not to make
anew. It would not be an amendment to
abolish this Constitution and adopt the
old Articles of Confederation, or the un
written constitution of England, or the
laws and customs of France or Russia.
An amendment must, therefore, be of
something germane to the instrument; it
must be of something which we already
have in the Constitution or it, is not an
amendment, but the making of a new
Constitution, and would only be binding
upon such States as agree to be bound by
it, and could not become a part of the
Constitution until every State should
adopt the same. If one State should re
fuse its consent, it would not, by virtue
of our Constitution, be binding upon any,
because while that instrument provided
that when it should be ratified by nine
States it should be binding upon the nine,
it made no provision either for making a
new Constitution, nor fur its own de
This view would limit the amendatory
power of the Constitution to the scope of
the delegated powers from the States to
the Federal Government., and prohibit the
taking of any powers not delegated ; and
that the men who made the Constitution
so understood it is shown by the instru
ment itself. The first exception to the
power of amendment, in the fifth article,
refers to delegated power—the right to
control foreign commerce. The
. second
exception to the exercise of the power re
fers to the manner of voting by States or
a method of doing business under the Con
stitution, and not a delegated power. As
germane to the general power to regulate
foreign commerce, an amendment could
have been made prohibiting the slave
trade before 1808, and for this reason a
particular limitation upon the amendatory
power of the Constitution was necessary
to guard it. As an incident to the legis
lative power vested in a Congress of the
United States in providing methods to do
business under the Constitution, it would
be competent to change the Constitution
by amendment in such manner as to de
prive a State of its equal vote in the
Senate, and to prevent this the second
particular limitation is found in the
From this it appears that the framers of
the Constitution regarded the amendatory
power as applicable to its delegated dele
gated powers or grants and its methods of
doing business, and for that reason made
these exceptions to the exercise of the
power. These exceptions furnish the rule
for the exercise of the power of amend
ment. Under this rule you may so modi
fy the Constitution by amendment in its
delegated powers and methods of doing
business as to give it upon its own prin
ciples a more complete effect.
This construction would give sufficient
scope and influence to the power: of
amendment in the fifth article. It can set
upon any and all of the delegated powers..
Two thirds of Congress and three fourths
of the States may so change the Consti
tution as to make the justices of the Su
preme Court elective. They might make
the office of President to continue for ten
or twenty years. Under the potter to
coin mon , and regulate the value there
of, you might so amend the Constitution
as to get power to make a " greenback "
a legal tender for the payment of debts;
and so on through all of the delegated
powers. But it is claimed as a fair rule
of construction, that denying the power
to amend in two particulars admits 'the
power in all other respects; and this i 8
the correct rule, and the men who made
the Constitution so understood it, and to
avoid the operation of this rule, and that
there should be no implied or constructive
powers in the Constitution, they adopted
the tenth amendment, declaratory of its
meaning, namely, that " the powers not
delegated to the United States are re
served to the States respectively or the
The tenth amendment was in , lieu of
the article in the Confederation providing
for the sovereignty of the States, and was
placed there for the express purpose of
keeping the reserved rights of the States
from the control of the Federal majorities.
And this restriction ripen authority or
scope of the Constitution includes its
amendatory power, as well as all other
powers and grants it contains.
Unless, the scope of amendment is lirm
ted, it, is diffiCalt fusee the use of the ex
ceptions in the proviso,orin yhß t man
ner the restriction htttacheri to the powor
of amendment in the fifth article. The
amendatory power of the fifth article in
the Constitution is as much within the
general restriction of the tenth amend
ment attaching to all the other delegated
powers contained in the organic law as it
is within the two special limitations con
tained in the proviso; otherwise the power
of amendment could be resorted to in de
fiance of the two special limitations, and
they could be taken from the Constitution
by amendment. To assume this conclu
sion would not do justice to the patriot
ism or wisdom of the great men who
made and adopted the Constitution for the
welfare of this people.
This construction affords abundant room
and scope for the amendatory power of
the fifth article to act upon and modify any
and all of the delegated powers, and gives
a clear and distinct office to be filled by
the tenth amendment. Each provision is
consistent with the other, and the Consti
tution consistent with itself. For a pe
riod of more than seventy years no other
use was ever attempted to be made of this
power of amendment. The first ten amend
ments to the Constitution were only de
claratory of its meaning and in limitation
of its power, and stand as a bill of rights
for the citizen or a perpetual protest against
any encroachment upon the reserved rights
of the States or the people of the States.
The eleventh amendment was proposed
in 1794, and is a limitation upon the judi
cial power of the United States. The
twelfth amendment,in 1803, was a change
in the mode of electing the Vice Presi
dent, preserving the system of Electors as
provided in the Constitution. It, would
be competent for two thirds of Congress
and three fourths of the States to abolish
the Electors and provide for a direct vote
of the people for the office of President
and Vice President by amendment ; for it
would be within the amendatory power
of the fifth article, as it only relates to the
delegated powers or a method of proceed
ing'as provided in the Constitution. No
attempt has ever been made to make a
different use of this power of amendment
until this war uprooted and overturned
the foundations of all law, and substituted
the wicked passions of angry men in their
If the opposite view of this power be
correct, then there is no limit to the power
of amendment excepting the discretion of
two thirds of Congress and three fourths
of the States, and it renders the tenth
amendment of the Constitution without
force or meaning. This provision speaks
of delegated powers. What are delegated
powers? I employ en agent to buy me a
farm ; he acts under delegated power.—
The original power is with me, and he
must act according to his power or he
acts without authority. This provision
also speaks of reserved rights. What! a
reserved right taken away without the
consent.of the party for whose benefit the
reservation was made! Was ever such a
right called a reserved right? A person
may sell his farm and reserve the minerals
under the same with the power to remove
them, or he may sell the minerals and re
, serve the farm. Upon this simple princi
ple, which no one ever doubted, depends
the title to millions of property in my
county alone. What would the owners of
those rich coal mines think of reserved
rights if told that they could be taken
from them without their consent ? And
' yet you ignore their title by the construc
tion which you adopt- to take reserved
powers from the States to the Federal
Government. Your construction would
enable you so to amend the Constitution
as to strike from the fifth article the words
two thirds and three fourths, and substi
tute the word majority; making our Con
stitution a mere barometer to measure the
ups and downs of party, and worthless.
The same power which will enable you to
control the gathering of taxes in a State
would enable you to remove from the
Constitution the injunction that you shall
guaranty to each State a republican form
of government, and then abolish the
Legislature and the local or State courts,
and the State itself. Then the American
Congress becomes what the British Par
liament always has been, omnipotent, and
the Constitution becomes an instrument
of original and no longer delegated pow
ers. Some of the majority in this House
appear to talk as if there were rights re
served to the States, but they do not
state what they are nor where the
rights of the States cease and those
of the Federal Government begin. Let
them make.the point where the Constitu
tion has. Those not delegated are re
served. cannot be that a solemn pro
vision of the,Constitntioni like the tenth
amendment, was placed there for no
No, sir, it' was by this that the framers
of the Constitution intended to seal up
the reserved rights of the States, as a
miser does his wealth, beyond the reach
of profane hands. It lifts the Constitution
above the filth of party politics and be
yond the reach of party malice, and makes
it truly national ; for nothing less than
the whole nation can change it In Its
powers.. Like the heavens, which are over
all, and send upon all the bright sunshine
and showers, . with the early and
later rains " fill the earth wttb rich boun
ties anti hlessiugs for
,all, and yet . is be
yond.the i reael of all,tin . does tins gape
ttte'Conititation around and over all,pro
teoting all, and furnishing prosperity and
happiness and liberty for all, and yet is
beyond the reach of any less than all.
These amendments speak of the rights of
trial, the qualifications of jurors, the right
of suffrage. If these rights are ndt sacrid,
and sacredly reserved to the States, then
we have none that are. These are the
richest jewels of this people, any one of
which is of more value than all the gems
that were ever dug from the mountains
and all the pearls the ocean ever con
cealed. And yet you propose to take
this rich and priceless inheritance, which
descended from our fathers, and bestow it
upon another and a foreign race
Such being my view of the powers dele
gated to the Federal Governtnent and the
rights reserved to the States, I cannot
vote for any amendment of the Constitu
tion, excepting such as relate to the dele
gated powers' or the 'methods of doing
business, giving it a more complete effect
upon its own principles. The propositioe
before us are not amendments, but new
and additional powers, and if adopted,
would be usurpations and invasions upon
the reserved rights of the States or the
people. I cannot vote for any amendment
which will confer any new or additional
power to those already delegated in the
I Constitution. I am fully satisfied that
sufficient power was delegated in that in
strument, to say nothing of the enlarged
powers by construction, and the still
greater by congressional, executive, and
military usurpations. But, as it is, this
war never could have taken place if the
rights of each State had been respected
by Congress and the people of every other
State. We have heard very much of
" the first gun "in this rebellion. That
first gun was not fired by the rebels at
Fort Sumpter, nor by old John Brown in
Virginia, but it was tired by the American
Congress when that body passed the Mis
souri compromise and usurped the right
to legislate upon the subject of slavery, a
mere domestic institution, resting with
the people of each State, as other domes
tic institutions now do; and that usurpation
having been acquiesced in by the people
North and South, led to the belief that at
least one of the reserved rights, one of
the domestic institutions, was liable to be
influenced and controlled by Federal ma
jorities. And .the people of New England
have been firing guns ever since; and af
ter forty years of insult and outrage they
had a return shot, ending in war ; and
after four years of most bloody conflict,
not instituted but perverted for that pur
pose, slavery has been abolished. And I
say, peace to its ashes! I would not dis
turb the slumbers of the dead if I had the
power, and I hope that every State which
ever . was in this Union will ratify the
amendment of the Constitution, that there
be no slavery in this land, and we shall
then have at least one question settled
If this war had been carried on for the
purpose of compelling the States North
and West to adopt slavery against the
will of the people of such States, then yon
could appreciate the view which I now
take, and you would point to the provi
sion of the Constitution to which' have
called your attention, and claimed that
the organic law protected your domestic,
institutions and justified you in changing
or abolishing them, as the people of each
State might choose, and all men would
have said that you were right.
A leading and highly respecLable jour
nal in the city of Philadelphia declares
that by casting the vote to which I have
alluded I have rendered myself infamous,
and that I do not represent the true senti
ment of my district. When I think Ido
not represent the views of my constituents
I will resign and go home ; bat all the
men in mf district or my State could not
get me to vote for any of these usurpations
of power, even though they are called
amendments. I must be permitted to
keep my oath and support the . Constitu
tion as I understand it.
And it is to be expected that I should
be misunderstood, misrepresented, and
abused; such has been the 'sure fate of
men with firmness enough to stand in the
face of popular prejudice and uphold what
they believe to be right. St. Paul dared
to be a Christian, and for this he was
twice beaten with rods, once stoned, and.
made to fight with wild beasts at Ephesus.
And before and ever since the ignorant
and the prejudiced have been ready,to
sing peens and songs of praise to the
party in power, however corrupt and
wicked, and shout " Great is Diana of the
Ephesians," . " Release unto to us, Barab
bas !" and they can now add, "for be is
one of us." But so long as I am in this
House you shall have one vote for the old
Constitution, and with God's help, one
vote against all of your efforts to usurp
new powers for the FederafGovernment ;
and that. embraees. all of your proposed
amendments. ' I have no desire to change
the Constitution 'which the fathers gave
us, the Bible which they read, nor the
God which they worshiped. But I 'do
not expect this House to listen to me or
heed what I say. "If they hear not Mo
ses and the prophets, neither will'they be
persuaded though one rose from the deid."
If you believe not. the Constitution and
the laws, neither would you be persuaded
if God should send Washington and Jef
ferson and Jackson and Webster and Clay
and all the dead patriots and- heroes of
oar land to tastily against • you, You'