Mr. HIGBY. Mr. Speaker, I differ from a great many members O this House, and I presume that I shall differ from a great many in authority as to the question of amending the Constitution of the U.S. I do not believe in making any amendments that are going by very slow degrees to a proper conclu1sion. either do I believe in making such amendments as will occasion a division in the public mind as to whether any improvement has been made or not. But an amendment that will aive strength to the Government of the U.S., an increased strength over what it may have now under the present constitution, will meet with my hearty concurrence. I understand this JtResolution, should it.come part of the Constitution of the U.S., will only have the effect to give vitality )and life to portions of the Constitution that probably were intended from the beginning to are life and vitality, but which have received such a construction that they have been entirely ignored and have become as dead matter in that instrument. When we read this proposed amendment we will think it already embraced, in the Constitution, but so scattered through, dififerent portions of it that it has no life or en, ergy. But by condensing it, as we find it in this jomt resolution, should it become a portion of the Constitution, it will then become operative and beneficial. Mr. Speaker, the article proposed, the adoption of which by 2/3rds of this House and of the 0ther branch of Congress would be only a preliminary step to its becoming a part of the Constitution, is in these words: whTichhe s Congress escheasll shall opwroepretro to make all laws secureto the citizens of cach State a l privileges and immunities of citizens in the severnl Stutes and to all perso the several States equal protection in the righ of life, libertY and property. Well, sir, I find in the beginning of the 8th section of the 1st article the words, “Con gress shall have power;” and in fiie latter portion of the same section are the words, “to make all laws which shall be necessary and proper “To secure to” are new words embraced in this amendment. The citizens ofeach State, ” and “all privileges and immunities of citizens in the several States, ” are words which are found in the Constitution in another place. The 5th article of the amendments of our present Constitution provides that “No person shall be deprived of life liberty or property without due processof law." The language of this proposed amendment is very little ifferent. t provides that congress shall secure To all personsin the several Statesequal protection in the rights of life, liberty, and property. Thus, sir, we find by an examination of the Constitution that it was intended to provide in these separate portions precisely what will be provide by this article, should it become aportion of the Constitution. Vh, sir, what force or value is there in article our, section one, of the Constitution, in these words: The citizens of each State shall be entitled to all gtnazielloa!cand immunities of citizens in the several If that provision had been enforced hereto fore, how ifferent would have been the condition of the various States of this Union. Had that provision been enforced, citizen of NewYork would have been treated as a citizen in the State of SCarolina; a citizen of Massachusetts would have been regarded as a citizen in the State of Mississippi or Louisiana. The man who was a citizen in one State would have been considered and respected as a citizen in every other State of the Union. But, sir, that provision of the Constitution has been trampled under foot; it has been considered in certain States of this Union as nngatory and of no force whatever. The intent of this amendment is to give force and effect and vitality to that provision of the Constitution which has been regarded heretofore as nugatory and powerless. Mr. Speaker, this resolution comes to this House from the JtComReconstruction, a committee that was appointed at the commencement of this session, not to exercise the power of a star chamber not to assume a despotic control over both branches of congress or any portion of this Government, but to of the servi c work of Congress. That committee was appointed for the purpose of collectin information in reference to the condition O those States that have been in rebellion, and when fully informed to report their action and conclusions to both branches of Congress. This committee have no power of legislation. They have no power to prescribe. T ieir only power is to procure information and to report to each branch of Congress their proceedings, giving this body and the body at teother end of the Capitol light in reference to the condition of the States lately in rebellion. Sir, in what I shall say, I shall forbear to dwell upon the condition of those States as to the facts or details that may be produced, for the simple reason that we have a body of men who have been appointed for the purpose of laying before Congress facts as to the true condition of those States. and, sir, it is toolate in the day for me to dwell upon those points, when so many who are abler have long since spoken on those facts and have presented them so clearly to this body. But, sir, I propose to dwell upon some points that are of very great importance at this time and in the present condition of the country. I wish to calI attentionto a few points which I consider of interest to all the members, and particularl to those who were members of the 3Iii th Congress. I proposeto examine whether this 39th on ress is consistent with the course pursued y the 38li Congress, or whether we have shot off from the true line, and the Executive has taken it up and is pursuing it; whether we are now adhering to the great principles which we deemed it our duty to [Ulntalll during the 38 h Congress, or whether we have deserted them and perhaps I will satisfy members we are consistent, and that the true course for the conservatives of this Government in the great principles of humanity lies here with this body, and with the one at the other end of the Ca itol. Mr. Speaker, I as this question: when can each House assume the duties in reference to the election, returns, and qualifications of its members? The Constitution of the U.S. in the 1st article answers the question. The very 1st article of the Constitution tells us what are States in the Union. The 1st article of the Constitution tells us how man representatives there may be in each State of the 13. Section 5 provides that “each House shall be the judge of the elections, returns, and qualifications O its members." I answer the question thus: whenever, either by virtue of the Constitution or by law of Congress, which the Constitution provides, a State may be admitted into the nion under the Constitution, when by act of Congress a State is admitted into the Union, and the number of its Representatives is settled by law, then and then only can each branch of ongress take up the question of the elections, returns, and qualifications of its own members. Sir, let us look a little further into this section of the Constitution and sec what it does provide. I invite the attention of members to this section, and I do it for this purpose, that they will find on examination that it does not provide for legislation, but simply for the or nization of each bod. There is no legislaive power given in the 5th section of the 1st article of the Constitution. It is essential to the organization of each bod to allow them to make rules by which each body shall be controlled. It is provided that each body shall be the judge of the elections, returns", and qualifications of its own members; and it is urther provided that a majority of each House shall constitute aquorum to do business, but a smaller number may adjourn from day today, and may be authorized to coin el the attendance of ab sent members, in such manner and under such penalties as each House may provide. It has reference to organization an nothing else. It says, further, that each House may determine the rules of its proceedings, punish its members for disorderly.ehavior, an with the concurrence of 2/3rds expel a member. It provides that each House shall keep a Journal of its proceedings, and from time to time publish the same, except such parts as may, in their judgment, require secrecy; and the yeas&nays of the members of either House on any question shall, at the desire of one 5th of those present, be entered on the Journal. It also provides that neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than 3 days. nor to any other place than in which the 2 Houses shall be sitting. Mr. Speaker, I have given you the whole of the 5th section, showing what its revisions are. It has reference to the organization of Congress and the government O each House while in session, and gives no legislative power whatever. In this section do we find what we are required to do, and what is insisted upon by the hxeeutive that we shall confine ourselves in considering the cases of these 11 States which have been in rebellion and which have occasioned the sacrifice of 500,000 lives and the burial of millions of the substance of the Union? Their Representatives have vacated these seats for 4 years of their own accord, and in the mean time those States have occasioned the lossesl have stated. when they come to our doors and ask to be admitted we are told by the Executive of the Union we shall act only under the 5th section of the 1st article of the Constitution, which has reference only to the organization of each body, nd where no legislative power whatever is giv to congress. We are told that it is only for the separate action of each body. If SCarolina presents her Representatives at our doors and asks to be admitted, we are told all we can do, if any question is raised as to their right to seats, is simpl to refer their credentials and papers to the ComElections and that they are to consider the whole matter. They are to be empowered by this dictum to consider this whole matter and ! to decide the condition of the scater tea. I simply say this: that if each branch of Congress was to assume to decide a question of this character it would be usurping the powers of this Government. Sir, the moment the relationship of States to the General Government is disturbed we can go behind these propositions laid down in the 5th section. the moment the inquiry is raised as to the condition of any State in the Union, it becomes a matter of legislation, and when it does it is taken away from each branch by itself and must be the joint act of both branches of Congress. What is his opinion? Let me refer to his annual message to see what language he uses: “ The amendment to the Constitution being adopt ed, itwould remain for the States whose powers have been so long in abeyanee, to resumetheir places in the 2 branches of the national Legislature and thereby complete the work of restoration. Here it is for you. fellow citizens of the Senate and for you. fellow citizens of the HoRep. to judge, each of you for yourselves, of the elections, returns, and qualifications of your own members." The POTUS brin 5 them to the doors of Congress and then tel s as all we have a right to do is that each branch for itself shall consider this question. We find the same thing reported in the veto message. We find that e is persistent on this point. He says:. “ I would in now iso interfere with the discretion of Congress with regard to the qualifications of mem TS The elections, returns, and qualifications of members are embraced in the annual messa e, and only the qualifications are found in the veto message. Mr. Speaker, I have no animadversion to make, and it is not my business in the brief hour I have to speak. My business is to show the distinction between the course Congress is pursuing in vindication of its acts and that pursued by the Executive, and which has occasioned so much disquiet and discussion through out the country. It is simply this: Congress insists it did so during the 38 h congress, and is doing so now it is a work of legislation to place these States which have been in rebellion in the condition of the loyal States, and that they may be entitled to representation, while the POTUS insists there shall be no legislation on that subject. That is the grand an distinctive difference between the two. Mr. Speaker, very much has been said in this House as to whether the States which were in the rebellion are in or out of the Union. I am not particular whether the one or the other is admitted so long as we can act in reference to this great object. But whether in or out of the Union I insist that it is within the power of a State to destroy, and destroy entire, its internal State organization, whether for legislative purposes or for representative purposes in Congress. Let me make this statement it is a truism there is no Representative in Congress unless he comes from a State. It commenced in the Constitution, the original foundation of the Government. It has continued there ever since. It is there now. The State has its representatives by 2 Senators in the other House; but those who come to this body represent the people. The people do not get their representation until the State is organized. The original 13 had the inherent power to create themselves into State organizations, and the same power was reserve under the Constitution to the States which may be admitted by Congress. Where have we had an instance that this central Government goes to work and makes a government for a State? The only one I now remember approaching it in any degree is the case of Kansas under the Administration of Buchanan. The Adminis tration took the Lecompton constitution, put in additions, and gilded them, and then tried to get the people to send it back; but it was voted down by an overwhelming majority. Each State makes its constitution foritself, and the Government has no business to do in that work. It has simply to see that the State govern“ment shall be republican in form. Once a State always a State!" It may be so for Federal purposes, but if a State does not see fit to send any representatives to Congress, I do not know how the Government of the U.S. can force them to send them here. If a State should refuse to keep upits State organization, should refuse to elect a Governor, to elect representatives to their State Legislature, to elect or appoint judges for their State courts, or officers for their counties or townships, I do not know what power the General Government has to force them to do it. The governmentis based upon the will of the people and if they are disposed to lose by inaction, if you please, or by rebellion, their State organization, it is entirely within their power to o it; and, sir, whenever a community that has been a State in this Union, after a lapse either by non-action or by resistance to the General government, comes and asks that its members shall be restored to seats after a long absence, we have not the power, under the 5th section of the 1st article, which I have read, to admit the members to seats here, and if we should do so, we would not only bid high for reboflion, but we would usurp the power of the Government, we would be trampling the Constitution beneath our feet which makes that provision ample, sufficient, and distinct. That is the view of this subject that was held by the 38 h Congress. We find that there was a disposition manifested on the part of that Congress to have the States comeback into this Union when they should have observed certain rules and regulations laid down as a test of loyalty. I call attention, for I presume the country has not been advised as yet as to what it was, or what was done, or what was its character, but I call attention to a certain bill which never became a law, but which passed both branches of Congress at the 1st session of the 38 h Congress; and I have some rec ords upon that subject. I have tried to procure the bil precisel, verbatim, as it finall passed both Houses. I have not succeeded in doing that, but I have the bill as it passed the House, and it passed the Senate with some slight amendments in which the House agreed, and it became a law as far as it could become a law until it went to the President to receive his signature or veto. Since I could not find the bi l as it passed both branches verbatim, I have made an abstract of its provisions. The reconstruction bill, as it passed the House May 4 1864, which was during the 1st session of the 38 h Congress, provided very briefly as follows: The 1st section provides for each of the States declared in rebellion a provisional governor, to be appointed, with the advice and consent of the Senate, by the President, to be charged with the civil administration of such State until a State government is recognized as therciuafter provided. The seeon section provides, so soon as resistance is supressed and obedience restored, for an enrolment of citizens and taking the oath, and if the majority enrolled take the oath, delegates are to be elected to meet in convention to declare the will of the people relative to reestablishing State government. The 3rd section provides for the number of delegates to attend the convention the day fixed for elections and places of voting by the Goveiqmr. The 4th section provides who may vote, and where. The 5th section provides how the election shall be conducted. The 6th section provides for convening the delegates, and the place where, and the qualification by oath. The 7th section provides through the convention a State constitution, which, when recognized by Congress as a government for the State, Senators and lie resenlntives and electors for President and VEEP may be elected. The bill further provides, on failure of the 1st effort to establish a State government acceptable to Congress, a further means to establish such a one as will be acceptable. such, in brief, is the substance of the bill on reconstruction. It will be observed that a State government must be 1st established before Sens&Reps and electors for President and VEEP may be elected. Mr. Speaker, I wish to call the attention of the House to the vote on this question. My friendfrom Pennsylvania [Mr. STEVENS] is charged with publishing very starth ng principles here at the commencement of this Congress. Now, let us see whether those principles are entirely new. I am now speaking more particularly to those members of this House who were members of the 38th Congress, because, having been here, and knowing what was said at the time, and taking part in what was done, they can state whether I make any mistake. The bill of last Congress which I have referred was House bill No.; and by reference to page 624 of the Journal of the HoRep for the 1st session of the 38 h Congress, it will be found that the Gentfrom Pennsylvania [Mr. STEVENS] moved the following preamble to the bill: “Whereas the so ealled confederate States are a public enemy waging an unjust war, whose injustice is so glarin that they have norihtto claim the mitigation of the extreme rights O war which are accordedby modern usage to an enemy who has a right to consider the war a just one; and whereasnone of the Stateswhich by aregularly rewrded majority of its citizens have joined the socalled southern confederaeycan be consideredand treatedas entitled to he representedin Congressto take any part in the political government of the nation: Therefore, " “Be it enacted, ” ($30., as I have already stated. A vote was taken a on agreeing to that preamble, and the yeas an on s were called, and by examinin the record find that 57 members O this Hofle voted in favor of this preamble; the majority, however, voted against it and of those 57 who voted for that reamble, I find 40 who are members of this House. The preamble was lost. Then came the vote on the bill, and I find from this record that the vote, upon the eas and uays, stood 74 in favor of the bill an 66 against it and of the 74 who voted in favor of the bill, of which I have given a sync sis, there were 57 who are now members of this House, and there are other members of this House who were then members of the House, whose names are not recorded upon that bill. My friendfrom Maine [Mr. BLAINE] was not then present, for I do not find his vote in either instance.My friendfrom Peunsylvania, [Mr. Srnvsns] who moved the preamb e, voted for that, but he did not vote either for or against the bill. Now, sir, that is afact of legislative history. That is something that was done by the 30 8th Congress at its 1st session. It shows that the true and loyal men in this body believed that that was the only policy proper to be pursued. they were not dispose to usurp any power but t cy believed it required the Congress of the U.S. to settle this great question of the right of representation. hat is the way this work began, so far as I have knowledge of it persona ly. That vote settles the question as to mens acts in reference to this matter. Who, then, have tried to get up an issue with the POTUS? This bill went to the Senate, and received the sanction of that body and there are far more members in that body now who were in the 38 h Congress than in this body, in reportion to its numbers and m1 opinion ist int if a vote should be taken upon t lat question in that body today we should find a majority of Senators right there who voted on that occasion for the passage of this bill. This shows the legislative action of Congress while he who now sits in the presidential chair was provisional governor of the State of tennessee, and was bein supported there by the military arm of the Fedora Government against the rebellion, whose fiery billows were threat ening to roll Over that State. Congress was then pursuing its legitimate business. It was pursuing the course it deemed not only politic and wise, butjust and equitable. It was pursuing the course it deemed it must pursue under the Constitution of the U.S., in order to aid in the reconstruction of these States as soon as it was possible to do so. While those southern States were seething and boiling in the fiery billows of the sultry hell of rebellion, Congress was deliberating here, and making provisions for those States to come back into this Union, if they saw fit to do so, under the provision that was then being made. Mi. Speaker, I will omit nothing. It is true that our lamented President, the one who fell by the hand of the assassin, did not sanction that bill, or give it his approval. It is also true that this is the same bill, in reference to which atSenfrom Ohio and amember from this House from Maryland, came out with their protest. But, sir, that does not affect the position of Congress; thatdoes not affect the position that members fiicre took to do what ttle the could do in these Halls to save this country an the Government. Even if the present occupant of the presidential chair does claim to have assumed the mantle of the dead President, and to be following in his footsteps, it does not show any inconsistency on this question in this body or the body at the other end of the Capitol. Sir, I think that President Lincoln did wrong in refusing to sign that bill; and the terrible death which he received at the hands of an assassin has not sanctified his position in my estimation. While I respect him for his great honesty, his integrity of ur so, and the most excellent qualities of head and of heart, I cannot any the more believe in the correctness of his course upon that subject. I trust, Mr. Speaker, that I have now made myself well no erstood in the points which I have submitted in Qference to the distinction between the executive and the legislative Dept and this is all that I desi ned to accomplish in that res eet. But, sir, there is another point to which wish to call the attention of every member of this House. It is one which, I think, has been to a great extent overlooked. An amendment to the Constitution has been recently made. It passed this House on the last day of January, 1865, and since that time has received the sanction or the ratification of the Legislatures of 3/4ths of the States of this Union, and has become apart of the Constitution of the U.S. What does that amendment provide? Its provisions are as follows: " “ARTICLE 13 Size. 1. Neither slavery nor involuntary servitude. except as a punishment for crime whereof the party shall have sen duly convicted shall crist Within the U.S or any place subjact to theirjuris “ Size.2. Congresss hall have power to enforcethis article by appropriate legislation.” Now, sir, the Government of the U.S. cannot do own with the force of the exceptional portion of that article, which allows a State to frame its laws so that a man may be sold into slavery “as a punishment for crime." The legislation of a State may prescribe as the penalty for a particular O ense, that the offen er shall pay a fine, or be imprisoned in the State prison, or be sold into slavery. Is there any powerin the Government of the U.S. by which it can declare that a State shall punish crime in only one certain way? Is there in this Union a single State whose criminal code does not provide alternative penalties? The law of my own State provides that for an assault with a deadly weapon with an intentto commit bodily injury, the offender on conviction may be sent to the State prison for 2 years, or be fined in the sum of $5,000. If the judge who renounce the sentence sees fit to impose a Ine, the fender, if hB be able to pay it, suffers no other penalty. By paying the line, he saves himself from imrisonnient., Now, et me suppose a case which not Only may happen, but has happened, in the southern States. Grant that the laws must be made equal; that they must be administered equally upon all classes, without regard to color or race. Suppose that a State enacts a provision that a party guilty of a particular offense shall, on conviction, be imprisoned in the State rison for 2 years or be sold into slavery. such a provision operates equally upon all classes, but the judge could discriminate, and could say to the white offender, “ Go to the State.prison, ” while he could say to the black man, “ Go into slavery.” You cannot prevent such things as that by any legislation in these Halls. such things arebeing done now in the southern States, as organized under executive authority. Let Congress admit that those are States of this Union, with the right of representation, and we shall have given that system an irrevocable sanction beyond the future control of the Government of the U.S., because those States are acting under the amendment of the Constitution, and can pass such laws in spite of anything which we may do in this Hall, and on leave slavery sealed upon the Government. 1 but is one of the results, if the Executive is right in his position. We are tied and bound, and we cannot get by it; but if it requires legislation, then we hold the power. But we cannot, except we can get through an amendment of the character of the one now pendin before this body, if they are States now, and have the right to come upon this floor, and we can only judge of the elections, returns, and qualifications of our own members. I have heard a great deal here. Mr. Speaker, about taxing the people of the South and not allowing them representation. I cannot see any objection that the people who have buried so many of the noble men of this Union in their soil, as well as millions of our substance; I can see no objection that they are doing penance and probation, and that some fruit is coming from them to this Government. Why, sir, we have been taxing without rere sentation; and we are now taxing the people of Nebraska, which is only a Ierrtory, having only a voice upon this floor and no pics at the other end of the Capitol. Nebraska furnished money and furnished soldiers for the Government. Nebraska was taxed during the war, although she had no vote here. how much better is rebel SCarolina than loyal Nebraska?