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 the _Congressional 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.'
The _sequitur_ is 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,--_yeas_ 25, _nays_ 22. 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 128 _ayes_ to 37 _noes_. 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 amendment _born subject to the jurisdiction of the United
States._" Mr. Doolittle's amendment was supported by only ten senators
on a call of the _ayes_ and _noes_, 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 as _ex parte_ Garland, 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 a _statute._"
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 the _ayes_ and _noes_ received 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.
As a result of this decision, Southern men who, under the Fourteenth
Amendment, had incurred disabilities by reason of participation in the
Rebellion, _could not assume office under the National Government until
their disabilities should be removed by a vote of two-thirds of the
Senate and House of Representatives, even though they had previously
been pardoned by the President._ The language of the amendment, the
very careful form in which the tense was expressed, appeared to leave
no other meaning possible, and the intention of legislators was
definitively established by the negative votes already referred to.
The intention indeed was in no wise to interfere with the pardon of the
President, leaving to that its full scope in the remission of penalty
which it secured to those engaged in the Rebellion. The pertinent
clause of the Fourteenth Amendment was regarded as merely prescribing
a qualification for office, and the Constitutional lawyers considered
it to be within the scope of the amending power as much as it would be
to change the age at which a citizen would be eligible to the Senate
or the House of Representatives.(2)
One of the singular features attending the discussion and formation
of this amendment, was that all the Democratic senators preferred the
third section as embodied in the Constitutional amendment finally
passed, to that which had been proposed as it passed the House. The
amendment could not probably be incorporated in the Constitution for
a year and according to the original proposition of the House,
therefore, it would only have excluded those who participated in the
Rebellion from the ballot-box for a period of three years,--until the
4th of July, 1870; whereas the third section, as adopted, perpetually
excluded the great mass of the leading men of the South from holding
public office, either in Nation or State, unless their disabilities
should be removed by a vote of two-thirds in each House of Congress.
No adequate explanation was given for the preference, and the final
vote substituting that which was incorporated in the Constitution for
the House proposition was 42 in the affirmative to 1 in the negative.
The negative vote was given by Reverdy Johnson; while such staunch
Democrats as Guthrie of Kentucky, Hendricks of Indiana, McDougal of
California and Willard Saulsbury of Delaware voted to prefer the one
to the other. Mr. Johnson afterward explained that he voted under a
misapprehension; so that the substitution was made, in effect, by a
unanimous vote of the Senate.
On the final passage in the Senate of the consolidated amendment the
_ayes_ were 33 and the _noes_ 11. When the amendment was returned to
the House, Mr. Stevens briefly explained the changes that had been made
in the Senate. The first section was altered to define who are
citizens of the United States and of the States. Mr. Stevens declared
this to be an excellent amendment, long needed to settle conflicting
decisions between the several States and the United States. He said
the second section had received but slight alteration. "I wish," he
continued, "it had received none. It contains much less power than I
could wish. It has not half the vigor of the amendment which was lost
in the Senate." The third section, he said, had been wholly changed
by substituting the ineligibility of certain high officials for the
disfranchisement of all rebels until 1870. Mr. Stevens declared that
he could not look upon this as an improvement. "It opens the elective
franchise to such as the States may choose to admit. In my judgment
it endangers the government of the country, both State and National,
and may give the next Congress and President to the reconstructed
rebels." The fourth section, "which renders inviolable the public debt
and repudiates the rebel debt, will secure the approbation of all but
traitors." "While I see," concluded Mr. Stevens, "much good in the
proposition I do not pretend to be satisfied with it; yet I am anxious
for its speedy adoption, for I dread delay. The danger is that before
any Constitutional guard shall have been adopted, Congress will be
flooded by rebels and rebel sympathizers." The House came to a final
test on the Senate amendments on the 13th of June and concurred in all
of them by a single vote--_ayes_ 120, _noes_ 32. The work of Congress
in securing the Fourteenth Amendment was thus made complete.
The Constitutional amendment not requiring the assent of the President
(for the good reason that the two-thirds of each House which can
override a veto are here required in advance), was submitted to the
Senate without delay. The notification to the States was dated June
16th. Connecticut was the first to assent to the amendment.--her
Legislature being in session and her ratification made complete on the
30th,--precisely a fortnight from the date of submission. New
Hampshire followed on the 7th of July. The third State was Tennessee.
Her Legislature ratified the amendment on the 19th of July, by a vote
of 58 to 17, counting both branches. Many of the States would
doubtless have held extra sessions of their Legislatures to expedite
the adoption of the amendment if such a course had been considered
desirable by the leading members of Congress. It was deemed best,
however, to leave the question open to discussion and deliberation, in
order that the provisions of the amendment, in all their length and
breadth, should be completely understood by the people before the
formal assent of the States should be urged. The three States named
were the only ones which ratified the amendment before Congress
adjourned.(3)
When the Reconstruction Committee reported the Fourteenth Amendment,
they reported with it a bill declaring that "whenever said amendment
shall become a part of the Constitution of the United States, and
any State lately in insurrection shall have ratified the same and shall
have modified its constitution and laws in conformity therewith," such
State should be admitted to representation. There had been during the
entire session of Congress a disposition to make an exception in favor
of the State of Tennessee. She had of her own motion elected her loyal
governor, and now for a year and a half the administration of the State
was in a comparative degree orderly and regular. When telegraphic
intelligence of the action of the Tennessee Legislature reached the
Capitol Mr. Bingham of Ohio moved a joint resolution, reciting in
effect by preamble, that as the "State of Tennessee has in good faith
ratified the Fourteenth Amendment, and has also shown to the
satisfaction of Congress, by a proper spirit of obedience in the body
of her people, her return to due allegiance to the Government, laws
and authority of the United States; therefore, be it resolved that the
State of Tennessee is hereby restored to her former, proper, practical
relations to the Union, and is again entitled to be represented in
Congress by senators and representatives duly elected and qualified,
upon their taking the oaths of office required by existing laws." Mr.
Boutwell of Massachusetts desired to add a condition that Tennessee, as
a prerequisite to the privilege of representation, should provide "an
equal and just system of suffrage for the male citizens within its
jurisdiction who are not less than twenty-one years of age." Mr.
Bingham declined to admit it, shutting off all amendments by the force
of the previous question, for which the House sustained his demand.
After a few hours' debate the House passed the joint resolution by 125
_ayes_ to 12 _noes_. The Democrats all supported the measure, though
they objected strenuously to some of the implications of the preamble.
The few votes in the negative were given by some radical Republicans,
though Mr. Stevens, the leader of that wing of the party, supported
the bill.
When the bill admitting Tennessee reached the Senate, there was a
discussion of some length in regard to changing the preamble which had
been adopted by the House, the principal aim being to insert the
declaration that "said State Government can only be restored to its
former political relations in the Union by the consent of the law-making
power of the United States." There was division among the Republican
senators in regard to the expedience of this change. It was the
judgment of the more conservative Republicans who followed Mr.
Fessenden, that it was needless to risk a veto of an important bill of
this character by confronting the President with a distinct negative of
his own theory in a place where it practically availed nothing. After
much discussion however it was concluded to change the preamble for
the sake of establishing a precedent in the first one of the
Confederate States restored to the right of representation in Congress.
The phrase, "hereby restored to her former, proper, practical relations
to the Union," was one much cherished, because it was the original
expression of Mr. Lincoln in his last public speech. The House readily
concurred in the change of preamble.
The President accepted the challenge of his theory embodied in the
preamble, not by veto, but in the more innocent form of argument.
"If," said he, in a special message of July 25th, "the ratification
of the Fourteenth Amendment to the Constitution of the United States
be one of the conditions of admitting Tennessee, and if, as is also
declared by the preamble, said State Government can only be restored
to its former political relations to the Union by the consent of the
law-making power of the United States, it would really seem to follow
that the joint resolution, which at this late day has received the
sanction of Congress, should have been passed, approved and placed on
the statute-books before any amendment to the Constitution was
submitted to the State of Tennessee for ratification. Otherwise the
inference is plainly deducible that while in the opinion of Congress
the people of a State may be too disloyal to be entitled to
representation, they may nevertheless have an equally potent voice
with other States in amending the Constitution, upon which so
essentially depends the stability, prosperity and very existence of
the nation."
The argument in the message was regarded as an ingenious censure of
Congress by the President, and was loudly applauded on the Democratic
side of the House. He concluded by declaring that notwithstanding the
anomalous character of the resolution, he had affixed his signature to
it. "My approval, however," he added, "is not to be construed as an
acknowledgment of the right of Congress to pass laws preliminary to the
admission of duly qualified representatives from any of the States."
The senators and representatives of the State were sworn in and took
their seats as soon as the President's message approving the bill was
read, and the reconstruction of Tennessee was complete. She had
regained all her rights as a member of the Union, coming in through the
gateway of two Constitutional Amendments, the Thirteenth and the
Fourteenth. It was evident from that moment that no one of the
Confederate States would ever again be admitted, so long as the
Republican party held power in the country, except by giving their
assent to the incorporation of the Fourteenth Amendment in the
Constitution. The bill from the Reconstruction Committee requiring
this as a condition was not enacted into law, but the admission of
Tennessee was a precedent stronger than law. Of all the seceding
States Tennessee was held to be the least offending, and the feeling
of kindliness towards her had been manifest from the first among
Republicans. It was evident therefore to the least observing, that
no other State which had been engaged in the Rebellion would be
permitted to resume the privilege of representation on less exacting
conditions than had been imposed on Tennessee. It might be that their
own conduct would cause more exacting conditions to be imposed.
Congress adjourned on the 28th of July. Elections were to be held
in the ensuing autumn for representatives to the Fortieth Congress,
and an opportunity was thus promptly afforded to test the popular
feeling on the issue raised by the President's plan of Reconstruction.
The appeal was to be made to the same constituency which two years
before had chosen him to the Vice-Presidency,--augmented by the vote
of Tennessee, now once more authorized to take part in electing the
representatives of the nation. Seldom in the history of the country
has a weightier question been submitted to popular arbitrament;
seldom has a popular decision been evoked which was destined to
exercise so far-reaching an influence upon the progress of the nation,
upon the prosperity of the people. It was not an ordinary political
contest between partisans of recognized and chronic hostility. It was
a deadly struggle between the Executive and Legislative Departments of
the Government, both of which had been chosen by the same party. This
peculiar fact imparted to the contest a degree of personal acrimony
and political rancor never before exhibited in the biennial election
of representatives in Congress.
[(1) The following is the form in which the Fourteenth Amendment to the
Constitution (consolidated from various propositions previously
discussed) was originally reported from the Committee on Reconstruction
by Mr. Stevens:--
"ARTICLE XIV.
"SECT. 1. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
"SECT. 2. 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. But whenever in any State the elective
franchise shall be denied to any portion of its male citizens not
less than twenty-one years of age, or in any way abridged, except for
participation in rebellion or other crime, the basis of representation
in such State shall be reduced in the proportion which the number of
male citizens shall bear to the whole number of such male citizens
not less than twenty-one years of age.
"SECT. 3. Until the fourth day of July in the year 1870, all persons
who voluntarily adhered to the late insurrection, giving it aid and
comfort, shall be excluded from the right to vote for representatives
in Congress and for electors for President and Vice-President of the
United States.
"SECT. 4. Neither the United States nor any State shall assume or pay
any debt or obligation already incurred, or which may hereafter be
incurred, in aid of insurrection or war against the United States, or
any claim for compensation for loss of involuntary service or labor.
"SECT. 5. The Congress shall have the power to enforce, by appropriate
legislation, the provisions of this article."]
[(2) Among the prominent Southern men who had received the pardon of the
President, and who, desiring to hold office under the National
Government, had their disabilities under the Fourteenth Amendment
subsequently removed by Congress, were: M. C. Butler, James L. Orr,
and William Aitken of South Carolina; Joseph E. Brown, Henry W.
Hilliard, and Lafayette McLaws of Georgia; F. M. Cockrell, George G.
Vest, and John B. Clarke of Missouri; J. D. C. Atkins and George Maney
of Tennessee; Randall Gibson of Louisiana; Otho R. Singleton of
Mississippi; Alexander R. Boteler of Virginia; Allen T. Caperton and
Charles J. Faulkner of West Virginia; M. W. Ransom, Thomas S. Ashe,
and A. M. Scales of North Carolina; W. B. Machen of Kentucky; John T.
Morgan and James L. Pugh of Alabama.
These gentlemen had all held high positions either in the civil or
military service of the Confederacy. A great number of additional
names might be cited of persons who, having been fully pardoned by the
President, were afterwards relieved of their disabilities by Congress.
The names quoted are but a few of the more conspicuous of those who
have, since the Rebellion, held high official positions under the
Government of the United States.]
[(3) The form of the Fourteenth Amendment, as finally agreed upon by
Congress and submitted to the States for ratification, is as follows:--
"ARTICLE XIV.
"SECT. 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
"SECT. 2. Representatives shall be apportioned among the several
States according to their respective number, counting the whole number
of persons in each, excluding Indians not taxed. But when the right
to vote at any election for the choice of electors for President and
Vice-President of the United States, representatives in congress, the
executive and judicial officers of a State, or the members of the
Legislature thereof, is denied to any of the male inhabitants of such
State, being twenty-one years of age, and citizens of the United
States, or in any way abridged, except for participation in rebellion,
or other crime, the basis of representation therein shall be reduced
in the proportion which the number of such male citizens shall bear to
the whole number of male citizens twenty-one years of age in such
State.
"SECT. 3. No person shall be a senator or representative in Congress,
or elector of President and Vice-President, or hold any office, civil
or military, under the United States, or under any State, who, having
previously taken an oath, as a member of Congress, or as an officer of
the United States, or as a member of any State Legislature, or as an
executive or judicial officer of any State, to support the Constitution
of the United States, shall have engaged in insurrection or rebellion
against the same, or given aid or comfort to the enemies thereof. But
Congress may, by a vote of two-thirds in each House, remove such
disability.
"SECT. 4. The validity of the public debt of the United States,
authorized by law, including debts incurred for the payment of
pensions, and bounties for services in suppressing insurrection or
rebellion, shall not be questioned. But neither the United States
nor any State shall assume or pay any debt or obligation incurred in
aid of insurrection or rebellion against the United States, or any
claim for the loss or emancipation of any slave; but all such debts,
obligations, and claims shall be held illegal and void.
"SECT. 5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article."]