It was not, of course, without some misgiving, without a certain timidity and distrust, that many Republicans were brought to the support of these measures. They did not object to their inherent and essential justice and rightfulness, but with instinctive caution they feared that an attempt to wipe away the prejudices of two centuries in a single day might lead to a dangerous re-action, and to a consequent change in the political control of the country. Many who were borne along in the irresistible current of aggressive reform dreaded all the more the effect of the votes which the moral and political pressure of their constituents compelled them to give. In the Constitutional amendment abolishing slavery they went forward without distrust, with complete approbation of conscience, with undoubting belief in the expediency of the act. They knew that the great mass of the North was heartily opposed to slavery: they knew that its abolition was not merely right but was destined to be popular. It affected moreover only that great section of country which had engaged in the crime of rebellion; and if it were viewed only as a punishment of those who had sought the destruction of the Government, they felt more than justified in inflicting it.
But the legislation now accomplished was of a different type. In no State of the North had there ever been social equality between the negro and the white man. It had been most nearly approached in New England, but still there were points of prejudice which time had not effaced nor custom changed. In the Middle and Western States the feeling was much deeper. In many of their laws a discrimination was made against the negro, and a direct interference with the habits of loyal communities on this subject involved many considerations which did not in any degree attach to legislation affecting only the Southern States. There was among Democratic leaders a confidence as marked as the timidity on the part of the Republicans. They were sure of a re-action in their favor; they believed that the Republicans had taken the step which would prove fatal to them, and that with the prejudices of the people supplemented by the patronage of the President a serious division would ensue, which would prove fatal to Radical ascendency in a majority of the Northern states. Overcome in both chambers by the aggressive force of a majority which transcended the limit of two-thirds, they congratulated themselves that this very power, beyond the restraint of the Executive and exercised in defiance of his opinions, would prove the pitfall of Republicanism wherever race prejudice was kept alive.
The passage of these bills by Congress, their persistent veto by the President and their re-enactment against his objections, produced, as had been anticipated, not only an open political hostility, but one which rapidly advanced to a condition in which violent epithet and mutual denunciation indicated the deplorable relations of the two great departments of the Government. The veto of the Freedmen's-Bureau Bill, on the 19th of February, was followed by a large popular meeting in Washington, on the 22d, to approve the President's action. The meeting adjourned to the White House to congratulate the President, and he in turn made a long speech in which he broke through all restraint, and spoke his mind with exasperating frankness. "I have," said the President, "fought traitors and treason in the South. I opposed Davis, Toombs, Slidell, and a long list of others whose names I need not repeat, and now, when I turn around at the other end of the line, I find men—I care not by what name you call them (a voice: 'Call them traitors')—who still stand opposed to the restoration to the Union of these States. (A voice: 'Give us their names.') A gentleman calls for their names. Well! suppose I should give them? I look upon them, I repeat it as President or citizen, as being as much opposed to the fundamental principles of this Government, and believe they are as much laboring to pervert or destroy them, as were the men who fought against them in the Rebellion. (A voice: 'Give us the names.') I say Thaddeus Stevens of Pennsylvania. (Tremendous applause.) I say Charles Sumner. (Tremendous applause.) I say Wendell Phillips and others of the same stripe are among them. (A voice: 'Give it to Forney.') Some gentleman in the crowd says, 'Give it to Forney.' I have only to say that I do not waste my ammunition upon dead ducks." (Laughter and applause.) . . . "They may traduce me," continued the President, "they may slander me, they may vituperate, but let me say to you that it has no effect upon me; and let me say in addition that I do not intend to be bullied by my enemies. . . . There is an earthquake coming, gentlemen: there is a ground-swell coming of popular judgment and indignation. The American people will speak for their interests, and they will know who are their friends and who their enemies. What positions have I held under this Government?—beginning with an alderman and running through all the branches of the Legislature. (A voice: 'From a tailor up.') Some gentleman says I have been a tailor. (Tremendous applause.) Now that did not discomfit me in the least; for when I used to be a tailor I had the reputation of being a good one and of making close fits (great laughter); always punctual with my customers and always did good work. (A voice: 'No patchwork.') No: I do not want any patchwork. I want a whole suit. But I will pass by this little facetiousness. . . . I was saying that I held nearly all positions, from alderman, through both branches of Congress, to that which I now occupy; and who is there that will say Andrew Johnson ever made a pledge that he did not redeem or made a promise that he did not fulfill?"
Some one had spoken in Congress about the Presidential obstacle to be gotten out of the way. Mr. Johnson interpreted this as meaning personal violence to himself. "I make use," said he, "of a very strong expression when I say that I have no doubt the intention was to incite assassination and so get out of the way the obstacle to place and power. Whether by assassination or not, there are individuals in this Government, I doubt not, who want to destroy our institutions and change the character of the Government. Are they not satisfied with the blood which has been shed? Does not the murder of Lincoln appease the vengeance and wrath of the opponents of this Government? Are they still unslaked? Do they still want more blood? I am not afraid of the assassin attacking me where a brave and courageous man would attack another. I only dread him when he would go in disguise, his footsteps noiseless. If it is blood they want let them have courage enough to strike like men."
The speech produced a very unfavorable impression upon the country. Its low tone, its vulgar abuse, recalled Mr. Johnson's unhappy words at the time of his inauguration as Vice-President, and produced throughout the country a feeling of humiliation. His effort to make it appear that his political opponents meditated assassination was regarded as a thoroughly unscrupulous declaration, as an unworthy attempt to place himself beside Lincoln in the martyrdom of duty—to suggest that as Lincoln had fallen, sacrificed to the spirit of hostility in the South, so he, in pursuing his line of duty, was in danger of being sacrificed to hostility in the North. The delivery of this speech was the formal forfeiture of the respect and confidence of the great majority of the people who had elected him to his place, and he failed to secure compensation by gaining the respect or confidence of those who had opposed him. A few Democrats who wished to worry and divide the Republican party, the place-hunters who craved the favor of the Executive, a few deserters from the Republican ranks unable to pursue the path of exacting duty, represented by their combination a specious support for the President. Natives of the border States, who had been unwilling to join in treasonable demonstrations against the Government but who had not been inspired with sufficient loyalty to join actively in its defense, now naturally rallied around Mr. Johnson. The residents of Washington, consisting at that time of Southern men and Southern sympathizers, now applauded the President because they saw an opportunity to distract and defeat the Republican party. But the entire mass of those who were now eager to sustain the President exhibited but a pitiable contrast with the magnificent party which he had voluntarily abandoned.
The increasing fierceness of the struggle between the President and Congress gave rise to every form of evil suspicion and evil imputation. The close vote on the Civil Rights Bill admonished the Republicans of their danger. If Mr. Dixon had not been confined to his house by illness, if Mr. Stockton had not been a few days before deprived of his seat, the Administration would have been able to rally seventeen votes in the negative, leaving but thirty-three to the Republicans out of a Senate of fifty members. The exigencies of the situation presented the strongest possible temptation to take every fair advantage, and this naturally led to the imputation of unfair advantage. A large number of honest-minded opponents believed that a careful calculation had been made by the Republican leaders, and that they had found the margin so close as to be unsafe in a contest with the President. If the margin had been broader and the two-thirds vote assured past all reasonable danger, it was asserted, and no doubt believed, that the Constitution would not have been strained to exchange Mr. Stockton for a Republican senator, who was sure to succeed him. It was the first attempt in our history to establish the policy of the Government without regard to the President, and indeed against his power. In the case of President Tyler the reverse had been practically attempted. In his controversy with the Whigs his friends constituted more than a third in each House —thus making his veto effective and leading him to attempt the administration of the Government without regard to the opinions of Congress. Mr. Tyler had failed; but thus far in the controversy with Johnson, Congress had succeeded. It was said, however, with great pertinacity by the friends of the President, that Congress was enabled to do this only by the exclusion of eleven States of the Union from representation; and from this fact came the Democratic denunciation of the Republican party for administering the affairs of the Government in a revolutionary spirit.
The narrow escape of the measure again created great uneasiness, not only among the Republicans in Congress but throughout the country. One or two more defections would imperil Republican control of the Senate. The loyalty of every member to his party was therefore scanned with closest observation. Rumors, gossip, inventions of all kinds were set afloat in the public press,—hinting first at one man and then at another among the Republican senators as likely to weaken, as about going over to the Administration, as having just had a confidential interview with Mr. Seward, as dining the evening before with the President, or as being concerned in some matter of even less consequence. When public interest is heightened the imagination of the people is stimulated, until trifles light as air have fatal significance in one direction or the other. Throughout the spring and early summer of 1866 (the tentative period, as it may be called, in fixing the relations of the President and Congress) this suggestion of doubt, this latent apprehension, continued, and was not indeed wholly removed until the political lines were definitely drawn by the elections for representatives to Congress in the ensuing autumn.
The situation in all its bearings was one of peculiar embarrassment, beset with extraordinary difficulties to those who directed the proceedings of Congress. In reviewing the events of that day, whatever may be thought respecting their wisdom and expediency, candid men of all parties will concede that the Republican leaders exhibited great determination of purpose, remarkable steadiness of nerve and unflagging devotion to principle. They were absolutely without precedent to guide them in the exigencies and emergencies of the situation. It was well said at the time that the framers of the Constitution in 1787 were not confronted with difficulties so grave or surrounded with problems so complex and unproved, as were the leaders of Congress during the period of Reconstruction. The framers of the Constitution met for one purpose, upon which all were agreed. They had only to reconcile differences of detail and to adjust the jealousies of local interest; but in 1866 Congress was called upon to exclude the President practically from all share in the law-making power, and to charge him on his oath of duty to faithfully execute laws, against which he had constantly entered his solemn protest, not only as inexpedient but as unconstitutional. Perhaps a man of more desperate resolution than Mr. Johnson might have used his Executive power more effectively against Congress, but he must have done so at the expense of his fidelity to sworn obligations. The practical deduction as to the working of our Governmental machinery, from the whole experience of that troublous era, is that two-thirds of each House, united and stimulated to one end, can practically neutralize the Executive power of the Government and lay down its policy in defiance of the efforts and the opposition of the President.
The defection of Senator Lane of Kansas from the ranks of the most radical Republicans caused great surprise to the country. He had been so closely identified with all the tragic events in the prolonged struggle to keep slavery out of Kansas, that he was considered to be an irreconcilable foe to the party that tolerated or in any way apologized for its existence. The position he had taken in voting against the Civil Rights Bill worried and fretted him. He keenly felt his separation from the sympathy of such men as Sumner, Chandler, Wade, and the whole host who had nobly fought the battle of Kansas in the halls of Congress. He felt still more keenly the general and somewhat indignant disapproval of his action, freely expressed by the great mass of his constituents. One of his intimate friends said that on the very day of his vote he received a telegram warning him that if he voted against the bill it would be the mistake of his life. The telegram reached him after the roll had been called. He said excitedly, "The mistake has been made. I would give all I possess if it were undone." He was still further disturbed by imputations upon his integrity in connection with some transactions of the Indian Bureau—imputations which were pronounced baseless by the two senators from Indiana (Thomas A. Hendricks and Henry S. Lane), one a political opponent and the other a political friend, who had impartially examined all the facts. But under the mortification caused by parting with old political associates, and the humiliation to which he was subjected by groundless imputations upon his character, his mind gave way and on the 11th of July, 1866 he committed suicide.
General Lane was a native of Indiana, son of a reputable lawyer, Amos Lane, who was a representative in Congress during the Administrations of Jackson and Van Buren. He thus inherited Democracy of the most aggressive type. He was a man of violent passions and marked courage. He commanded a regiment of Indiana volunteers at the battle of Buena Vista, and in 1852 was elected a member of the House of Representatives. He was a warm supporter of Douglas and voted for the repeal of the Missouri Compromise. He immediately afterwards emigrated to Kansas, as he said, "to see fair play under the doctrine of popular sovereignty." His career thenceforward formed a large part of the history of Kansas. He contributed perhaps as largely as any other one man to the victory of the Free-State policy, and became as violent in his hostility to the Democratic party as he had formerly been in its advocacy. When his State was admitted to the Union in 1861 he was rewarded with the honor of being one of her first senators in Congress. His course in the Senate, until the time of his defection, had been specially marked for its aggressiveness in support of the war and the destruction of the institution of slavery. He was profoundly attached to Mr. Lincoln and had received many marks of his friendship. The motive for his strange course under President Johnson was never clearly disclosed. He was in the full vigor of life when he closed it with his own hands, being a few weeks beyond his fifty-first birthday.
The Administration of Mr. Johnson had, before the death of Mr. Lane, been unhappily associated in the popular mind with another suicide. A few days before the assembling of Congress Mr. Preston King, collector of the port of New York, had drowned himself in the Hudson River by leaping from a ferry-boat. He had been for more than twenty years an intimate friend of Mr. Johnson and held, as already narrated, a confidential relation to him at the time of his accession to the Presidency. He had been especially influential in the National Republican Convention of 1864 in securing for Mr. Johnson the nomination for the Vice-Presidency. The original disagreement with Mr. Seward was generally ascribed to the influence of Mr. King upon the President, but when, with Mr. Seward in the Cabinet, Mr. King was appointed collector of customs for the port of New York, it was understood to mean that a perfect reconciliation had taken place between all the Republican factions in his State. The change in the President's position was a complete surprise to Mr. King and left him in a peculiarly embarrassing situation. He was essentially a radical man in all his political views, and the evident tendency of the President towards extreme conservatism on the question of reconstruction was a keen distress to him. He was at a loss to determine his course of action. If he should resign his position it would be the proclamation of hostility to one to whom he was deeply attached. If he should remain in office he feared it might be at the expense of forfeiting the good will of the tens of thousands of New-York Republicans who had always reposed the utmost confidence in his fidelity to principle, and who had rewarded him with the highest honors in their power to bestow. He had not desired the collectorship, and consented to accept it only from his sincere friendship for the President and from his earnest desire to harmonize the Republican party in New York and bring its full strength to the support of the Administration. The office had given him no pleasure. It had indeed brought him nothing but care and anxiety. The applications for place were numerous and perplexing, the daily routine of duty was onerous and exacting, and his pecuniary responsibility to the Government, much exaggerated by his worried mind, constantly alarmed him. Mr. King found himself therefore so situated that, whichever way he turned, he faced embarrassment in his career, and as he imagined, disaster to his reputation. In the conflicting emotions incident to his entangled position, his brain was fevered, and his intellect became disordered. From the anguish which his sensitive nature could not endure, he sought relief in the grave.
Mr. King was born in 1806 at Ogdensburg, St. Lawrence County, New York, which throughout his life continued to be his home. He became prominent in political affairs, while still a young man, as a zealous supporter of President Jackson in whose interest he edited a paper. He attached himself to that strong school of New-York Democrats of whom Silas Wright was the acknowledged leader. After conspicuous service in the New-York Legislature, he entered Congress in 1845 and remained until 1851. When the South demanded the abrogation of the Missouri Compromise Mr. King followed his personal convictions, broke from his Democratic associations and aided in the organization of the Republican party. He adhered steadily to the fortunes of the new party and brought with him a strong popular support—the large Republican majorities in Northern New York being originally due in no small degree to his personal influence and earnest efforts.
The controversies between the President and Congress, thus far narrated, did not involve what have since been specifically known as the Reconstruction measures. Those were yet to come. The establishment of the Freedmen's Bureau was at best designed to be a temporary charity; and the Civil Rights Bill, while growing out of changes effected by the war, was applicable alike to all conditions and to all times. The province of the Special Committee on Reconstruction was to devise and perfect those measures which should secure the fruits of the Union victory, by prescribing the essential grounds upon which the revolted States should be re-admitted to representation in Congress. The principal objects aimed at were at least four in number. That which most largely engaged popular attention at the outset was the increased representation which the South was to secure by the manumission of the negroes. In the original Constitution only three-fifths of the slaves were permitted to be enumerated in the basis of apportionment. Two-fifths were now added and an increase of political power to the South appeared probably as the somewhat startling result of the civil struggle. There was an obvious injustice in giving to the white men of the South the right to elect representatives in Congress apportioned to their section by reason of the four and a half million of negroes, who were enumerated in the census but not allowed to exercise any political power. By permitting this, a Confederate soldier who fought to destroy the Union would be endowed with a larger power of control in the National Government than the loyal soldier who fought to maintain the Union. To allow this to be accomplished would be a mere mockery of justice, the utter subversion of fair play between man and man.
Another subject deeply engaging Northern thought was the definition of American citizenship. There was a strong desire to place it on such substantial foundation as should prevent the possibility of sinister interpretation by the Judiciary, and guard it at the same time against different constructions in different States. This was an omission in the original Constitution—so grave an omission, indeed, that the guarantee entitling citizens of each State to the privileges and immunities of citizens of the several States, was in many cases ignored, often indeed defied and destroyed. If we were now to have a broader nationality as the result of our civil struggle, it was apparent to the mass of men, as well as to the publicist and statesman, that citizenship should be placed on unquestionable ground—on ground so plain that the humblest man who should inherit its protections would comprehend the extent and significance of his title.
A third point had taken possession of the popular mind, quickened and intensified as it was by the conflict between the President and Congress. The President, as already stated, had by the lavish use of the pardoning power signalized his change on the subject of Reconstruction. Many of the worst offenders in the Confederate cause had received Executive clemency. Not only had the general mass of rebels been pardoned by the amnesty proclamation of May 29th, but many thousands of the classes excepted in that instrument had afterwards received special pardons from the President. The crime of treason, which they had committed, was thus condoned, and the Executive pardon could be pleaded against any indictment or any attempt to punish by process of law. If there should be no provision to the contrary, these pardoned men would thus become as eligible to all the honors and emoluments of the Republic as though they had not for four years been using their utmost efforts to destroy its existence. It was therefore the general expectation of the people that by some law, either statute or organic, the political privileges of these men, so far as the right to hold office was involved, should be restricted, and that, without contravening the full force and effect of the President's pardon, they might justly be deprived of all right to receive the honors of the Nation and of the State. From the crime of rebellion they had been freed by the President, but it was expected that Congress would clearly define the difference between pardoning a rebel for treason to his county and endowing him with the right to enjoy the honors and emoluments of office.
Other subjects had entered into the public apprehension and were brought prominently to the attention of Congress, and by Congress referred to the Reconstruction Committee. There was a fear that if, by a political convulsion, the Confederates of the South should unite with the Democratic opponents of the war in the North and thus obtain control of the Government, they might, at least by some indirect process if not directly, impair the public obligations of the United States incurred in suppressing the Rebellion. They feared that the large bounties already paid to Union soldiers, and the generous pensions already provided or which might afterwards be provided, for those who had been maimed or for the orphan and the widow of those who had fallen, might, in the advent of the same adverse political power in the Government, be objected to, unless at the same time a similar concession should be granted to the misled and deceived masses of the South, who had with reckless daring been forced into the service of the ill-starred Confederacy. It was therefore expected that Congress would, so far as organic law could attain that end, guard the sacredness of the public debt and the equal sacredness of the National pensions, and that to do this effectively it should be provided that no recognition should ever be made, either by the National Government or by any State Governments, of debts incurred in aid of the Rebellion.
Still another subject was considered to be of grave consequence. Preventive measures of the most stringent character were demanded against a threatened danger to the National credit. With the single exception of land, which is the basis of all property, the South had lost the largest aggregate investment held in one form in the entire country. The money value of Southern slaves, reckoned at current prices, was larger when the war broke out than the money value of railroads or of manufacturing establishments in the United States. For the defense of this great interest the war had been avowedly undertaken. Perhaps it would be more truthful to say that the ambitions and conspiring politicians of the South had assumed the danger to this vast investment as the pretext for destroying the Government; and they had met with the fate so solemnly foretold in Sacred Writ,—they had drawn the sword and perished by the sword. As the one grand consummation of the struggle, the institution of slavery had disappeared. It was probably, nay, it was certainly to be expected, that in the destruction of so large an investment great suffering would come to many who had not participated in the Rebellion; to many indeed who had opposed it. That remuneration for losses should be asked was apparently inevitable.
Men of financial skill and experience saw that if such a contingent liability should overhang the National Treasury the public credit might be fatally impaired. The acknowledged and imperative indebtedness of the Government was already enormous; contingencies yet to be encountered would undoubtedly increase it, and its weight would press heavily upon the people until a firmly re-established credit should enable the Government to lower the rate of interest upon its bonds. So long as the Government was compelled to pay its interest in coin, while the business of the country was conducted upon the basis of suspended paper, the burden upon the people would be great. It would be vastly increased in imagination (and imagination is rapidly transformed to reality in the tremulous balance which decides the standard of public credit) if the Nation should not be able to define with absolute precision the metes and bounds of its aggregate obligation. Hence the imperious necessity of excluding all possibility of the payment of from two to three thousand millions of dollars to the slave-holders of the South. If that were not accomplished, the burden would be so great that the Nation which had survived the shock of arms might be engulfed in the manifold calamities of bankruptcy.
The magnitude of the reforms for which the popular desire was unmistakable, may in some degree be measured by the fact that they involved the necessity of radical changes in, and important additions to, the Federal Constitution. It was frankly acknowledged that if the President's plan of Reconstruction should be followed, involving the instant admission of senators and representatives from the revolted States, these Constitutional changes could not be effected, because the party desiring them would no longer control two-thirds of both Senate and House. Mr. Seward, in his persuasive mode of presenting his views, had urged as a matter of justice that legislation affecting the Southern States should be open to the participation of representatives from those States; but Mr. Thaddeus Stevens, who had as keen an intellect as Mr. Seward and a more trenchant style, declared that view to involve an absurdity. He avowed his belief that there was no greater propriety in admitting Southern senators and representatives to take part in considering the financial adjustments and legislative safeguards rendered necessary by their crime, than it would have been to admit the Confederate generals to the camp of the Union Army, when measures were under consideration for the overthrow of the Rebellion.
The great mass of Republicans in Congress maintained that it was not only common justice but common sense to define, without interposition or advice from the South, the conditions upon which the insurrectionary States should be re-clothed with the panoply of National power. "In no body of English laws," said Mr. Stevens, in an animated conversation in the House, "have I ever found a provision which authorizes the criminal to sit in judgment when the extent of his crime and its proper punishment were under consideration." The argument, therefore, which Mr. Seward had made with such strength for the President was, in the judgment of the great majority of Norther people, altogether ill-founded. By the caustic sentence of Mr. Stevens it had been totally overthrown. The average judgement approved the sharply defined and stringent policy of Congress as set forth by Mr. Stevens, rather than the policy so comprehensively embodied and so skilfully advocated by Mr. Seward on behalf of the Administration. Whatever may have been the temptations presented by the apparent magnanimity and broad charity of Mr. Seward's line of procedure, they were more than answered by the instincts of justice and by the sense of safety embodied in the plan of Reconstruction announced and about to be pursued by Congress.
The Joint Special Committee on Reconstruction, appointed at the opening of the Thirty-ninth Congress in December, did not meet for organization until the 6th of January, 1866. As an indication of the respectful manner in which they desired to treat the President, and the care with which they would proceed in their important duties, they appointed a sub-committee to wait on Mr. Johnson and advise him that the committee desired to avoid all possible collision or misconstruction between the Executive and Congress in regard to their relative positions. They informed the President that in their judgment it was exceedingly desirable that while this subject was under consideration by the joint committee no further action in regard to Reconstruction should be taken by him unless it should become imperatively necessary. The committee plainly declared that mutual respect would seem to require mutual forbearance on the part of the President and Congress. Mr. Johnson replied in effect that, while desiring the question of Reconstruction to be advanced as rapidly as would be consistent with the public interest, he earnestly sought for harmony of action, and to that end he would take no further steps without advising Congress. This promise of each branch of the Government to wait patiently on the other was no doubt sincere, but it soon proved difficult, if not impossible, to maintain the compact. When two co-ordinate departments were holding antagonistic views on the vital question at issue, collisions between them could not be averted. As matter of fact the resolution, as has been seen by events already narrated, so far from proving itself to be an adjustment did not serve even as a truce between the President and Congress. It was found impracticable to secure repression and the contest went forward with constantly accelerating speed.
The first question on the subject of Reconstruction which engaged the attention of Congress, was the re-adjustment of the basis of representation; and for a time it absorbed all others. The first proposition to amend the Constitution in this respect had been made by Mr. Stevens on the 5th of December, providing "that representatives shall be apportioned among the States which may be within the Union according to their respective legal voters, and for this purpose none shall be named as legal voters who are not either natural born citizens of the United States or naturalized foreigners." During the month of December the question of representation was discussed, partly in public debate, but more in conference among members; and the plan of placing the basis upon legal voters, at first warmly urged, was quickly abandoned as its probable results were scrutinized. When Congress convened after the holidays, on Friday the 5th of January, Mr. Spalding of Ohio, in a speech already referred to, proposed an amendment to the Constitution in regard to representation in Congress, directing that "people of color shall not be counted with the population in making up the ratio of representation, except it be in States where they are permitted to exercise the elective franchise," and this was probably the earliest foreshadowing of the real change in the basis of representation that was made by the Fourteenth Amendment.
On the ensuing Monday Mr. Blaine of Maine proposed the following, in lieu of the Constitutional provision then existing: "Representatives and direct taxes shall be apportioned among the several States which shall be included within this Union according to their respective numbers, which shall be determined by taking the whole number of persons,except those whose political rights or privileges are denied or abridged by the constitution of any State on account of race or color." Mr. Blaine objected to taking voters as the basis of representation. "If," said he, "voters instead of population shall be made the basis of representation, certain results will follow, not fully appreciated perhaps by some who are now urgent for the change. I shall confine my examination of these results to the nineteen free States, whose statistics are presented in the census of 1860, and the very radical change which the new basis of apportionment would produce among those States forms the ground of my opposition to it. The ratio of voters to population differs very widely in different sections, varying, in the States referred to, from a minimum of nineteen per cent to a maximum of fifty-eight per cent; and some of the changes which its effect would work in the relative representation of certain States would be monstrous. For example, California has a population of 358,110 and Vermont a population of 314,369, and each has three representatives on this floor to-day. But California has 207,000 voters and Vermont had only 87,000. Assuming voters as the basis of apportionment and allowing to Vermont three representatives, California would be entitled to eight. The great State of Ohio, with nearly seven times the population of California, would have but little more than two and a half times the number of representatives; and New York, with quite eleven times the population of California, would have, in the proposed method of apportionment, less than five times as many members of this House."
Mr. Blaine adduced some other examples less extreme than those quoted, but the generalization was no doubt too broad and presented in some respects an erroneous conclusion. The only mode of getting at the number of voters was by the ballots cast at the general elections, and the relative ratio was varied by so many considerations that it did not correctly represent the actual number of voters in each State. But the facts presented by Mr. Blaine and elaborated by other speakers turned the attention of the House away from an apportionment based on voters.
Mr. Conkling, a few days later, in referring to Mr. Blaine's argument, maintained that "the ratio, in dividing the whole population of the United States into two hundred and forty-one representative districts, leaving out such extreme cases as California, would not be seriously affected by assuming the white male voters as the basis of apportionment." On the 15th of January Mr. Conkling submitted a Constitutional amendment on the subject, in two forms; making the proviso in one case that "whenever in any one State the political rights or privileges of any man shall be denied or abridged on account of race or color, all persons of such race or color shall be excluded from the basis of representation," and the other providing that "when the elective franchise in any State shall be denied or abridged on account of race or color, all persons of such race or color so denied shall be excluded from the basis of representation."
On the 22d of January the Reconstruction Committee, both in the Senate and House, reported their proposed amendment to the Constitution on this subject. It was in these words: "Representatives and direct taxes shall be apportioned among the several States which may be included within this Union according to their respective numbers, counting the whole number of persons in each State—excluding Indians not taxed; provided, that whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons of such race or color shall be excluded from the basis of representation." The amendment was substantially the second form of that proposed by Mr. Conkling. He was a member of the Reconstruction Committee and opened the discussion on the subject with a carefully prepared speech. The peculiar feature of this amendment was that if any portion of the people should be excluded by reason of race or color, every individual of that race or color would be excluded from the basis of apportionment. As Mr. Stevens expressed it, if one man should be excluded from the ballot-box on account of his race, then the whole race should be excluded from the basis of apportionment.
The proposition led to a long debate, the differences being to a great extent among members on the Republican side. Mr. Jenckes of Rhode Island objected to it, because it would not effect the object aimed at. "Suppose," said he, "this amendment is adopted by three-fourths of the States and becomes a part of the Constitution, and after its adoption the State of South Carolina should re-instate her old constitution, striking out the word 'white,' and re-establishing the property qualification of fifty acres of land or town-lots or the payment of taxes, there would then be no discrimination of color in South Carolina; yet, while the number of her voters would not be enlarged five hundred, the representation would be exactly as it is, with the addition of two-fifths of the enfranchised freedmen." Mr. Blaine objected that "if by ordinary fair play we exclude any class from the basis of representation they should be excluded from the basis of taxation, and therefore we should strike out the word 'taxes.' Ever since the Government was founded taxation and representation have gone hand in hand. If we exclude that principle from this amendment we shall be accused of narrow, illiberal, mean-spirited, money-grasping policy."
Mr. Donnelly of Minnesota supported the measure, not as a finality but as a partial step,—as one of a series of necessary laws. Mr. Sloan of Wisconsin made an urgent argument for the basing of representation upon voters, "as those voters are determined by the States." Mr. John Baker of Illinois objected to the amendment, because it "leaves any State of the Union perfectly free to narrow her suffrage to any extent she pleases, imposing proprietary and other disqualifying tests and strengthening her aristocratic power over the people, provided only she steers clear of a test based on race or color." Mr. Ingersoll of Illinois followed the speech of his colleague, Mr. Baker, by moving to add to the Constitutional amendment these words: "and no State within this Union shall prescribe or establish any property qualifications which may or shall in any way abridge the elective franchise." Mr. Jenckes of Rhode Island argued against Mr. Ingersoll's amendment as needlessly abridging the power of the States. On the 24th of January Mr. Lawrence of Ohio moved that "the pending resolution and all amendments be recommitted to the Committee on Reconstruction, with instructions to report an amendment to the Constitution, which shall, first, apportion direct taxation among the States according to the property in each, and second, apportion the representation among the States upon the basis of male voters who may be citizens of the United States."
Mr. Shellabarger followed his colleague, giving objections to the amendment as reported by the Committee on Reconstruction: "First, it contemplates and provides for and in that way authorizes the States to wholly disfranchise an entire race of people; second, the moral teaching of the clause offends the free and just spirit of the age, violates the foundation principle of our own Government and is intrinsically wrong; third, associated with that clause in our Constitution relating to the States being republican this amendment makes it read thus: 'the United States shall guarantee to every State in this Union a republican form of government, provided, however, that a government shall be deemed republican when whole races of its people are disfranchised, unrepresented and ignored.'" Mr. Eliot of Massachusetts moved an amendment that representation should be based upon the whole number of persons, "and that the elective franchise shall not be denied or abridged in any State on account of race or color."
Mr. Pike of Maine made a strong speech against the amendment, the spirit of which was in favor of declaring universal suffrage. He added to the illustrations already given of the inefficacy of the proposed amendment to reach the desired end, one of special force and pertinency. "Suppose," said he, "this Constitutional amendment to be in full force, and a State should provide that the right of suffrage should not be exercised by any person who had been a slave or who was the descendant of a slave, whatever his race or color?" He suggested that it was "a serious matter to tell whether this simple provision would not be sufficient to defeat the Constitutional amendment which we here so laboriously enact and submit to the States." Mr. Conkling argued that "the amendment we are proposing is not for Greece or Rome, or anywhere where anybody besides Africans were held as slaves. It is to operate in this country, where one race, and only one, has been held in servitude." Mr. Pike replied that "in no State has slavery been confined to one race." "So far," added he, "as I am acquainted with their statutes, slavery has not been confined to the African race. I have examined the matter with some care, and I know of no slave-statute which says that Africans alone shall be slaves. Well-authenticated instances exist in every slave State, where men of Caucasian descent, of Anglo-Saxon blood, have been confined in slavery and they and their posterity held as slaves, so that not only were free blacks found everywhere but white slaves abounded."
On the 29th of January the debate closed, and the resolutions originally reported from the Committee on Reconstruction, together with the suggested amendments, were again referred to that committee. Especial interest was taken by many members in the language proposed by Mr. Schenck of Ohio: "Representatives shall be apportioned among the several States which may be included within this Union, according to the number of male citizens of the United States over twenty-one years of age having the qualifications of electors of the most numerous branch of the Legislature;" and also in the proposition of Mr. Broomall of Pennsylvania, providing that "when the elective franchise shall be denied by the constitution or laws of any State, to any proportion of its male citizens over the age of twenty-one years, the same proportion of its entire population shall be excluded from the basis of representation." Two days afterwards, on the 31st of January, Mr. Stevens reported from the Joint Committee on Reconstruction the proposition in this form: "Representatives shall be apportioned among the several States which may be included within this Union according to their respective numbers, counting the whole number of persons in each State—excluding Indians not taxed;provided that whenever the elective franchise shall be denied or abridged in any State on account of race or color, the persons therein of such race or color shall be excluded from the basis of representation." Mr. Schenck submitted his amendment basing apportionment upon the number of male citizen of the United States who are voters, but it was rejected by an overwhelming vote, only twenty-nine of the entire House voting in the affirmative. The amendment, as reported from the committee, was then adopted,—yeas 120, nays 46. It was substantially a party division, though some half-dozen Republicans voted in the negative.
The amendment reached the Senate on the thirty-first day of January and on the sixth of February was taken up for consideration. Mr. Fessenden, chairman of the Joint Committee on Reconstruction, was entitled to open the debate, but yielded to Mr. Sumner. Mr. Sumner, with his rigid adherence to principle, opposed the amendment. "Knowing as I do," said he, "the eminent character of the committee which reports this amendment, its intelligence, its patriotism and the moral instincts by which it is moved, I am at a loss to understand the origin of a proposition which seems to me nothing else than another compromise of human rights, as if the country had not already paid enough in costly treasure and more costly blood for such compromise in the past." He declared that he was "painfully impressed by the discord and defilement which the amendment would introduce into the Constitution." He quoted the declaration of Madison in the convention of 1787, that it was wrong to admit into the Constitution the idea of property in man. "Of all that has come to us from that historic convention, where Washington sat as President and Franklin and Hamilton sat as members, there is nothing having so much of imperishable charm. It was wrong to admit into the Constitution the idea than man could hold property in man. Accordingly, in this spirit the Constitution was framed. This offensive idea was not admitted. The text at least was kept blameless. And now, after generations have passed, surrounded by the light of Christian truth and in the very blaze of human freedom, it is proposed to admit into the Constitution the twin idea of inequality in rights, and thus openly set at naught the first principles of the Declaration of Independence and the guarantee of republican government itself, while you blot out a whole race politically. For some time we have been carefully expunging from the statute-books the word 'white,' and now it is proposed to insert into the Constitution itself a distinction of color."
Upon this foundation Mr. Sumner spoke at great length, his speech filling forty-one columns of theCongressional Globe. It would hardly be proper indeed to call it a speech. It was a great historic review of the foundation of the Republics of the world, an exhaustive analysis of what constituted a true republic, closing with an eloquent plea for the ballot for the freedmen. He demanded "enfranchisement for the sake of the public security and public faith." He pleaded for the ballot as "the great guarantee." The ballot, he declared, "is a peacemaker, a schoolmaster, a protector." "Show me," said he, as he approached the conclusion of his speech—"show me a creature with erect countenance and looking to heaven, made in the image of God, and I show you a man who, of whatever country or race—whether darkened by equatorial sun or blanched with the northern cold—is an equal with you before the heavenly Father, and equally with you entitled to all the rights of human nature." . . . "You cannot deny these rights without impiety. God has so linked the National welfare with National duty that you cannot deny these rights without peril to the Republic. It is not enough that you have given liberty. By the same title that we claim liberty do we claim equality also. . . . The Roman Cato, after declaring his belief in the immortality of the soul, added, that if this were an error it was an error that he loved; and now, declaring my belief in liberty and equality as the God-given birthright of all men, let me say in the same spirit, if this be an error it is an error which I love; if this be a fault it is a fault which I shall be slow to renounce; if this be an illusion it is an illusion which I pray may wrap the world in its angelic form."
Mr. Sumner's speech may be regarded as an exhaustive and masterly essay, unfolding and illustrating the doctrine of human rights. As such it remains a treatise of great value; but as a political argument calculated to shape and determine the legislation of Congress, it was singularly inapt. As a counter-proposition he submitted a preamble and joint resolution in these words: "Whereas it is provided by the Constitution that the United States shall guarantee to every State of the Union a republican form of government, and whereas, by reason of the failure of certain States to maintain governments which Congress might recognize, it has become the duty of the United States, standing in the place of guarantor," . . . "Therefore be it resolved, that there shall be no oligarchy, aristocracy, caste or monopoly invested with peculiar privileges or powers, and there shall be no denial of rights, civil or political, on account of race or color within the limits of the United States or the jurisdiction thereof, but all persons therein shall be equal before the law, whether in the court-room or at the ballot-box, and this statute, made in pursuance of the Constitution, shall be the supreme law of the land, any thing in the constitution or laws of any State to the contrary notwithstanding."
Mr. Fessenden replied to Mr. Sumner in an elaborate speech in justification of the amendment proposed by the Reconstruction Committee. His argument was marked with all his peculiar ability, and the two speeches contain within themselves the fullest exposition of the difference in mental quality of the two eminent New-England statesmen who were so long rivals in the Senate of the United States. Mr. Fessenden was above all things practical; he was unwilling at any time to engage in legislation that was not effective and direct; he had no sympathy with mere declarations, was absolutely free from the vanity so often exhibited in legislative bodies, of speaking when there was no question before the body for decision, or of submitting resolutions merely in response to a popular sentiment, without effecting any valuable result. In short, Congress was with him a law-making body. It met for that business and so far as he could direct its proceedings, Mr. Fessenden, as chairman at different times of leading committees, held it to its work. He was felicitous with his pen beyond the rhetorical power of Mr. Sumner, though not so deeply read, nor so broad in scholarship and general culture.
He made an able argument for the pending amendment as the most effective method of bringing the South to do justice to the colored race. He believed that if the Southern States should feel that they could derive larger political power in the Government of the United States by admitting colored men to the elective franchise, they would in time conclude to do so; and doing so they would be compelled in the mere process to realize their indebtment to that race, and thus from self-interest, if not from a sense of justice, would extend equal protection to the whole population. Mr. Fessenden could not refrain from some good-natured ridicule of the declaratory resolutions which Mr. Sumner had offered. "Sir," said he, "does the Constitution authorize oligarchy, aristocracy, caste or monopoly? Not at all. Are you not as safe under the Constitution as you are under an Act of Congress? Why re-enact the Constitution merely to put it in a bill? What do you accomplish by it? What remedy does it afford? It is merely as if it read this way: 'Whereas it is provided in the Constitution that the United States shall guarantee to every State of the Union a republican form of government, therefore we declare that there shall be a republican form of government, and nothing else.' That is all there is of it. Of what particular use it is as a bill, practically, is more than I can tell. I presume the Honorable Senator from Massachusetts will very easily explain it, but it reminds me (I say it with all due respect to him) of a political travesty of a law argument by an eminent lawyer of his own State, running somewhat in this way;—
'Let my opponents do their worst,Still my first point is point the first,Which fully proves my case, because,All statute laws are statute laws.'
Thesequituris obvious,—the case is proved because, inasmuch as the Constitution provides that there shall be no aristocracy, no oligarchy, no monopoly, therefore Congress has resolved that there shall not be any thing of the kind."
Mr. Fessenden would not admit the essential justice of the argument which Mr. Sumner made in behalf of universal suffrage, and showed that he was not consistent in the ground which he took. "While," said he, "the Honorable Senator from Massachusetts argued with great force that every man should have the right of suffrage, his argument, connected with the other principle that he laid down, and the application of it, —that taxation and representation should go together,—would apply with equal force and equal equity to woman as to man; but I notice that the Honorable Senator carefully and skillfully evaded that part of the proposition. If a necessary connection between taxation and representation applies to the individuals in a State, and that is the application which the Honorable Senator made of it,—an application never made by our ancestors, but applied by them to communities and not to individuals,—I should like him to tell me why, according to his own argument, every female that is taxed should not be allowed to have the right of suffrage."
"There are," said Mr. Fessenden, "but two propositions to be considered in the pending amendment; one is whether you will base representation on voters, and the other is the proposition which is before the Senate. I suppose the proposition to base representation upon actual voters would commend itself to the Honorable Senator from Massachusetts. I believe I have in my desk a proposition he made to amend the Constitution (laid before the Senate so early in the session that the bell which called us together had hardly struck its note before it was laid upon the table), in which he proposed that representation in the United States should be based on voters. Let me ask him if that does not leave in the hands of the States the same power that exists there now, and has existed heretofore? What is the difference? How does the Honorable Senator find the pending proposition so objectionable, and the one he offered so suitable to accomplish the purpose which he desires to accomplish? The two propositions, in respect to the point upon which the gentleman has made his speech, are identical in effect."
The Constitutional amendment was debated earnestly until the 9th of March. One of the boldest and most notable speeches was made by Mr. Henderson of Missouri, who surprised the Senate by taking a more radical ground than the Reconstruction Committee. He moved the following as a substitute for the committee's proposition to amend the Constitution: "No State, in prescribing the qualifications requisite for electors therein, shall discriminate against any person on account of color or race." Mr. Henderson, though representing a State lately slave-holding, was in advance of the majority of his associates from the free States; but he defended his amendment with great ability. He said, "I am aware that the Senate will vote it down now. Let them vote it down. It will not be five years from to-day before this body will vote for it. You cannot get along without it. You may adopt the other proposition, but the States will not accept it. The Northern States in my judgement will not accept it, because they will misapprehend the meaning of it." When the vote was reached ten senators, including Mr. Henderson, sustained his proposition in favor of negro suffrage. The resolution of the Reconstruction Committee, after several attempts to modify it, came to a vote,—yeas25,nays22. Two-thirds being required the amendment was defeated. A reconsideration was made for the purpose of resuming the discussion, but the resolution was never taken up again, having become merged in a new proposition.
Pending the consideration of the Constitutional amendment so long before Congress, the Reconstruction Committee reported, and both Houses of Congress agreed to adopt, a resolution declaring that "No senator or representative shall be admitted into either branch of Congress from any of said States until Congress shall have declared such State entitled to representation." It was the pressure of the State of Tennessee for admission which brought about this declaration. Her condition was regarded as peculiar, and her senators and representatives were seeking admission to their appropriate bodies, claiming exemption from the general requirements of the Reconstruction policy, because they had, without the aid of Congress, established a loyal State government. This was regarded as totally inexpedient, and the committee reported the resolution, as they declared, "in order to close agitation upon a question which seems likely to disturb the action of the Government, as well as to quiet the uncertainty which is agitating the minds of the people of the eleven States which have been declared to be in insurrection." The objection to this course was, that in a certain degree it involved the renunciation on the part of both Senate and House of their right to be the exclusive judge of the qualification of members of their respective bodies. Mr. Stevens was the author of the resolution and it really included, as its essential basis, the view which he had so strenuously insisted upon, that the insurrectionary States must be treated by Congress, in all that related to their restoration to the Union, as if they were new States seeking admission for the first time. Instead of each House acting as the judge of the qualifications of its members, both Houses agreed that neither should take a step in that regard until there had been common action declaring the State entitled to representation. A similar proposition at the opening of the session had been defeated in the Senate: its ready adoption now showed how the contest between the President and Congress was driving the latter day by day to more radical positions.
After the defeat in the Senate of the amendment touching representation, and the postponement by the House of another amendment reported from the Committee on Reconstruction touching the protection of citizens in their rights and immunities, there was a general cassation of discussion on the question of changing the Constitution, and a common understanding in both branches to await the formal and final report of the Committee. That report was made by Mr. Stevens on Monday, the 30th of April.(1) It consisted of a joint resolution proposing an amendment to the Constitution of the United States, in which were consolidated under one article the several amendments which had been proposed, and which in their aggregate, as finally shaped, made up the famous Fourteenth Amendment. In addition to this was a bill reciting the desirability of restoring the lately revolted States to full participation in all political rights, and enacting in substance that when the Constitutional amendment should be agreed to by them, their senators and representatives in Congress might be admitted. A further bill was reported, declaring certain persons who had been engaged in rebellion to be ineligible to office under the Government of the United States.
The debate on the consolidated Fourteenth Amendment was opened on the 8th of May by Mr. Stevens. The House had agreed that all speeches should be limited to half an hour. The debate was therefore condensed and direct. Mr. Stevens complained of the Senate for having defeated the amendment relating to representation, and though assenting to that which was now reported by the committee, thought it inferior to, and less effective than, the one which had failed. The third section he thought too lenient. "There is," said he, "a morbid sensibility sometimes called mercy, which affects a few of all classes from the priest to the clown, which has more sympathy for the murderer on the gallows than for his victim. I hope I have a heart as capable of feeling for human woe as others. I have long since wished that capital punishment were abolished. But I never dreamed that all punishment could be dispensed with in human society. Anarchy, treason and violence would reign triumphant. The punishment now prescribed is the mildest ever inflicted upon traitors. I might not consent to the extreme severity pronounced upon them by a provisional Governor of Tennessee—I mean the late lamented Andrew Johnson of blessed memory—but I would have increased the severity in this section. . . . In my judgment we do not sufficiently protect the loyal men in the rebel States from the vindictive persecutions of their rebel neighbors."
Mr. Blaine of Maine called the attention of Mr. Stevens to the fact that on the 17th of July, 1862, Congress had passed an Act of which the following was one section: "That the President is hereby authorized, at any time hereafter, by proclamation, to extend to persons who may have participated in the existing rebellion in any State or part thereof, pardon and amnesty, with such exceptions, at such times and on such conditions as he may deem expedient for the public welfare." "Under and in pursuance of this Act," said Mr. Blaine, "the late President Lincoln issued a proclamation granting a great number of pardons upon certain specified conditions, and subsequently President Johnson issued his celebrated amnesty proclamation granting pardons to certain specified classes in the South that had participated in the Rebellion. . . . Do we not by the proposed action place ourselves in the attitude of taking back by Constitutional amendment that which has been given by Act of Congress, and by Presidential proclamation issued in pursuance of the law? and will not this be justly subjected to the charge of bad faith on the part of the Federal Government?"
Mr. Stevens replied that a pardon, whether by the President having the power or specifically by Act of Parliament or Congress, extinguishes the crime. "After that," said he, "there is no such crime in the individual. A man steals and he is pardoned. He is not then a thief and you cannot call him a thief, or if you do you are liable to an action for slander. None of those who have been fully pardoned are affected by this provision."
Mr. Blaine replied that the Constitutional amendment would be held to override the President's proclamation, being organic in its nature and therefore supreme. "That," said Mr. Blaine, "is my understanding and that, it seems to me, would be the legal construction; but if the gentleman from Pennsylvania is correct, then I maintain that it is the bounded duty of this House to make the language so plain that he who runs may read—that there may be no doubt about its construction."
Mr. Garfield said that "the point made by the gentleman from Maine shows that, whatever may be the intention of the committee or of the House, the section is at least susceptible of double construction. Some may say that it revokes and nullifies in part the pardons that have already been granted in accordance with law and the proclamation of the President. Others may say that it does not apply to the rebels who have been pardoned."
Mr. Stevens interrupted Mr. Garfield and said, "I was not perhaps sufficiently explicit in what I stated in answer to the interrogatory of the gentleman from Maine. I admit that a pardon removes all liability to punishment for a crime committed, but there is a vast difference between punishment for a crime and withholding a privilege. While I admit that the pardon will be full and operative so far as the crime is concerned, it offers no other advantage than an exemption from punishment for the crime itself."
Mr. Garfield, resuming, said that he was about to remark that "if the section does not apply to those who have been pardoned then it would apply to so small a number of people as to make it of no practical value, for the excepted classes in the general system of pardons form a very small fraction of the rebels."
Mr. Boyer, a Democratic member from Pennsylvania, declared that the effect of the amendment if adopted would be to disfranchise for a period of four years nine-tenths of the voting population of eleven States.
The point was subsequently alluded to by the leading lawyers of the House, with the general admission that, whatever might have been the implied pledge of the President or of Congress, or whatever might be the effect of the pardon of the President, it did not in any limit the power of the people to amend their Constitution. To the proposition to exclude those who had been engaged in the Rebellion from the right of suffrage for National office until 1870, there was a strong hostility from two classes—one class opposing because it was a needless proscription, and the other, equally large, because it did not go far enough in proscribing those who had been guilty of rebellion. The amendment came to a vote on the 10th of May and the result was 128ayesto 37noes. Not a single Republican vote was cast against it. Mr. Raymond voted in the affirmative, and his ringing response elicited loud applause both on the floor and in the galleries.
When the Senate proceeded to consider the Constitutional amendment it soon became evident that it could not be adopted in the form in which it came from the House. The first important change was suggested by Mr. Howard of Michigan on behalf of the Senate members of the Joint Committee on Reconstruction. He proposed to prefix these words to the first clause of the amendment: "All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside." Mr. Doolittle moved to insert "excluding Indians not taxed," but Mr. Howard made a pertinent reply that "Indians born within the limits of the United States, who maintain their tribal affiliations, are not in the sense of this amendmentborn subject to the jurisdiction of the United States." Mr. Doolittle's amendment was supported by only ten senators on a call of theayesandnoes, and the amendment proposed by Mr. Howard was then agreed to without division. Mr. Howard next proposed to amend the second section of the constitutional amendment by striking out the word "citizens" and inserting "inhabitants, being citizens of the United States." This was done, as Mr. Fessenden explained, "to prevent a State from saying that though a person is a citizen of the United States he is not a citizen of the State, and to make it conform to the first clause as just amended."
Mr. Howard offered next to change the third clause as it came from the House by inserting a substitute, which is precisely that which became formally incorporated in the amendment as it passed. Mr. Hendricks of Indiana moved to amend by inserting after the word "shall" the words "during the term of his office," so as to read, "shall, during the term of his office, have engaged in insurrection or rebellion." Mr. Hendricks understood "the idea upon which this section rests, to be that men who held office, and upon assuming the office took the oath prescribed by the Constitution, became obligated by that oath to stand by the Constitution and the oath," and that "going into the Rebellion was not only a breach of their allegiance but a breach of their oath," and that "persons who had violated the oath to support the Constitution of the United States ought not to be allowed to hold any office." Mr. Howard hoped the amendment would not be adopted. "If," said he, "I understand the senator from Indiana right, he holds that although a person may have taken that Constitutional oath, if he has not committed insurrection during the continuance of the term of his office, but committed that act after the expiration of that term, the previous taking of the oath by him adds to the act no additional moral guilt. I do not concur with him in that view. It seems to me that where a person has taken a solemn oath to support the Constitution of the United States, there is a fair implication that he cannot afterwards commit an act which in its effect would destroy the Constitution of the United States, without incurring at least the moral guilt of perjury."
Mr. Reverdy Johnson supported Mr. Hendricks's amendment. "The effect of the amendment of the committee," said he, "would be to embrace nine-tenths, perhaps, of the gentlemen of the South, to disfranchise them until Congress shall think proper, by a majority of two-thirds of each branch, to remove the restriction. If the suggestion of the senator from Indiana is not adopted," continued Mr. Johnson, "then all who have at any time held any office under the United States, or who have been in any branch of the Legislature of a State, which they could not be without taking the oath required by the Constitution of the United States, are to be excluded from holding the office or senator or representative, or that of an elector for President or Vice-President, or any office, civil or military, under the United States." Mr. Fessenden reminded the senator from Maryland that the provision, as proposed by the committee, included exactly those classes to whom the obligation of an oath to support the Constitution was prescribed in the sixth article of the Constitution, namely "Senators and representatives and the members of the several State Legislatures, and all executive and judicial officers, both of the United States and the several States, shall be bound by oath or affirmation to support this Constitution."
Mr. Sherman of Ohio pointed out that the amendment of Mr. Hendricks would exclude from the operation of the section those who had left the army of the United States to join the Rebellion. Mr. Hendricks's amendment received but eight votes in the Senate, falling short of the admitted Administration strength. Mr. Reverdy Johnson moved to strike out the words which included members of the State Legislatures, but the amendment secured only ten votes. He also moved to strike out the words "having previously taken," and insert "at any time within ten years preceding the 1st of January, 1861, had taken;" and this also received but ten votes. Mr. Van Winkle moved to amend so that a majority of all the members elected to each House should be empowered to remove the disability, instead of two-thirds as required by the amendment. This also received but ten votes.
In further discussion of the extent to which the pardon of the President goes, Mr. Reverdy Johnson cited a case which had just been argued by himself and others but was not yet decided, in the Supreme Court of the United States, as to whether an attorney in that court could be bound to take the ironclad oath as prescribed by Act of Congress, January 24, 1865. He had no doubt, he said, that the operation of the pardon was to clear the party pardoned from the obligation to take that oath. The case referred to was that since so widely known asex parteGarland, and decided by the Supreme Court adversely to the Constitutionality of the statute. Mr. Howe of Wisconsin interrupted the senator from Maryland and asked him whether he knew "of any authority which has gone to the extent of declaring that either an amnesty or a pardon can impose any limitation whatever upon the power of the people of the United States, through an amendment to their Constitution, to fix the qualifications of officers." Mr. Johnson replied, "That is not the question to which I spoke. It is quite another inquiry. I was speaking of the operation of astatute."
Mr. Doolittle also answered his colleague by saying, "I know it may be said that by an amendment to the Constitution, which is the supreme law of the land, you can annul all existing rights. You could, perhaps, by an amendment to the Constitution, enact a provision which would deprive individual citizens of their property, and vest the whole of it in the Government of a State or in the Government of the United States. You might, perhaps, by a Constitutional amendment, pass a bill of attainder by which certain men would be sentenced to death and to corruption of blood. But, sir, would it be right? That is the question." Mr. Doolittle was discussing it on the ground of its moral rightfulness and not upon the ground of the power of the people to amend their Constitution. An attempt was made to insert the word "voluntarily" in the amendment, so that only those would be under disabilities who had voluntarily taken part in the Rebellion; but this received only ten votes. The Senate rejected it for the obvious reason that it would open the entire amendment to evasion.
The amendment, as supported by Mr. Howard, was finally agreed to with only ten votes in the negative. Mr. Hendricks, in lieu of the amendment on the subject of representation, moved to add a clause excluding two-fifths of "such persons as have been discharged from involuntary servitude since the year 1861, and to whom the elective franchise may be denied." He did this in order that representation should be maintained on the same numerical basis that existed before the war. The amendment was rejected without a division. Mr. Doolittle offered an amendment on the subject of representation, embodying the two propositions of making voters the basis of representation and providing that "direct taxes shall be apportioned among the several States according to the value of the real and personal taxable property situated in each State, not belonging to the State or to the United States;" but after elaborate debate it received only seven votes. On motion of Mr. Williams of Oregon the amendment to section two was still further amended by substituting the words "the right to vote" for "elective franchise," as already agreed to. Mr. Clarke of New Hampshire, who had shown throughout the discussion great aptness at draughting Constitutional provisions in appropriate language, now moved to substitute for section four, which had gone through various mutations not necessary to recount here, the precise section as it now stands in the Constitution.
In the course of the discussion Mr. Doolittle had moved that in imposing political disabilities, those should be excepted "who have duly received pardon and amnesty under the Constitution and laws." He had just admitted the broadest possible power of a Constitutional amendment duly adopted, and, recognizing that the amendment as it stood would certainly include those who had received pardon from the President, desired to avert that result. His amendment was very briefly debated and on a call of theayesandnoesreceived only ten votes. The effect of this vote unmistakably settled, in the judgment of the law-making power of the Government, that the operation of the Fourteenth Amendment would not in the least degree be affected by the President's pardon. Before the proposed amendment of Mr. Doolittle, Mr. Saulsbury had tested the sense of the Senate practically on the same point, by moving to make the clause of the amendment read thus: "Congress may by a vote of two-thirds of each House and the President may by the exercise of the pardoning power, remove such disabilities;" but it was rejected by a large majority, and every proposition to permit the pardon of the President to affect the disabilities prescribed by the Fourteenth Amendment in any way whatever was promptly overruled.