THE CONGRESSIONAL PLAN (_Continued_)
The Freedmen Codes in the South--The Reports of Grant and Schurz in
Regard to the Status in the South--The Freedmen's Bureau Bill of
1866--The President's 22d of February Speech--The Civil Rights
Bill--The Veto of the Bill--The Veto Overridden--The Fourteenth
Amendment--The Discussion of the Propositions in Congress--The
President's Attitude toward the Proposed Amendment--Mr. Seward's Acts
in Regard to Ratification--The Requirement that the Ratification of the
Proposed Amendment should be the Condition of the Admission of the
Senators- and Representatives-elect to Seats in Congress--The Tennessee
Precedent.
[Sidenote: The Freedmen codes in the South.]
We have reviewed the acts of the new legislature of Mississippi
concerning the civil status of the freedmen. It is sufficient to say
that during the winter of 1865-66, the other reconstructed legislatures
followed the example of the legislature of Mississippi. These movements
forced upon the Republican party in Congress the conviction that the
civil rights of the freedmen must be secured by national law. As yet
there existed only the Thirteenth Amendment to the Constitution upon
which to base Congressional statutes, and this, as we know, simply
abolished and prohibited slavery and involuntary servitude, and
empowered Congress to pass appropriate laws for the execution of the
Amendment. By virtue of the war powers still exercised by the
Administration several of the Union Generals, as we shall see, had set
aside this legislation in {63} some of these reconstructed "States."
But, of course, it was well understood that this was only a temporary
remedy. During the month of January, 1866, the Republicans in Congress
became convinced that the newly organized "States," with the exception
of Tennessee, were consciously developing freedmen's codes which would
not differ greatly from their old slave codes.
[Sidenote: The reports of Grant and Schurz in regard to the status in
the South.]
The President had sent General Grant and General Carl Schurz on tours
of inspection and inquiry through the South, during the late summer and
autumn of 1865; and Congress now asked the President to impart to it
the information thus gathered. The two reports were quite
contradictory. General Grant said that he drew the conclusion from his
observations that "the mass of thinking men of the South accept the
present situation of affairs in good faith." He also indicated that the
officers of the Freedmen's Bureau were a useless set of men, dangerous
to the peace and prosperity of the South, and recommended that the
military officers in the different districts should be put in charge of
the bureau.
Mr. Schurz, on the other hand, reported that his conclusions from his
observations were that there was no loyalty among the leaders and the
mass of the people in the South, except such as consisted in submission
to necessity; that they were consciously attempting in their new
legislation to establish a new form of slavery, distinct only from the
old chattel slavery; and that this could be prevented only by national
law and national control, at least for many years to come.
General Grant's visit had been a flying one, and his inquiries upon the
subject were secondary only to his other business. On the other hand,
General Schurz had journeyed deliberately, and his inquiries were the
chief, if not the sole, purpose of his visit. Moreover, {64} General
Schurz was a keener observer in regard to such matters than General
Grant, and a much better reasoner.
[Sidenote: The attitude of Congress toward the reports.]
Despite, therefore, the great popularity and influence of General
Grant, Congress was inclined to place more credence in the report of
General Schurz. While its Committee on Reconstruction was deliberating,
it, therefore, most naturally set itself about doing what it could,
under the Thirteenth Amendment, and also under its still existing war
powers, in behalf of the civil rights of the freedmen.
[Sidenote: The Freedmen's Bureau bill of 1866.]
The first measure it attempted was one to enlarge the powers of the
Freedmen's Bureau. This supplementary project originated with the
Judiciary Committee of the Senate, and was presented in the Senate on
the 12th of January, 1866. The new bill proposed to increase the
personnel of the bureau and expand the powers vested in it as provided
in the law of March 3d, 1865, in the following most important respects:
First, While the law of March 3d, 1865, provided for the appointment of
a commissioner and ten assistants as the entire personnel of the
Bureau, the new bill authorized the appointment of a commissioner,
twelve assistant commissioners, and the appointment or detail of an
agent for each county or parish throughout the section where the Bureau
might operate.
Second, While in the law of March 3d, 1865, the Bureau rather appeared
to be under the civil administration of the President, the new bill
placed it distinctly under the military administration of the
President, and authorized the President to extend "military
jurisdiction and protection over all of the officers, agents, and
employees of the Bureau."
Third, While the law of March 3d, 1865, confined the powers of the
Bureau to the giving of aid to {65} refugees and freedmen and the
distribution of abandoned and confiscated lands among them, the new
bill proposed, in addition to this, to vest in the Bureau the power to
build school houses and asylums for the freedmen, and the most
wide-reaching jurisdiction over all civil and criminal cases where
equality in civil rights and status, and in the application of
penalties, was denied, or the denial thereof attempted, on account of
race, color, or previous condition of servitude; and it authorized
military protection in all such cases to be extended to the suffering
party. In a single sentence, this bill provided a sort of palatine
jurisdiction over the freedmen in the section lately the scene of
rebellion.
[Sidenote: The passage of the bill.]
It was a stiff measure even for the transition period from war to
peace. It cannot be justified constitutionally as anything but a war
measure. It is true that the Thirteenth Amendment, just adopted, could
be interpreted as giving Congress the power to prohibit inequalities in
civil rights and in criminal punishments, as the incidents of slavery
or involuntary servitude, and to extend the ordinary jurisdiction of
the constitutional courts of the United States over all cases where the
attempt to apply such inequalities should be made. But it certainly did
not give Congress the power, under any ordinary circumstances, to
create a new system of courts, subject to the Executive, officered by
military men, and armed directly with military power to enforce
decisions. It was, as has been said, a war measure, and nothing else.
The question was reduced simply to this: Ought the Congress of the
United States to enact a new war measure, after armed resistance had
ceased everywhere, except perhaps in some parts of Texas? Was it sound
policy, was it good morals, to do so, when the people in the sections
lately in rebellion were settling down into the pursuits of peace, even
though Congress might {66} legally have the right to do so? The bill
was debated long and carefully in the Senate by all of the leading
members, and the opinion finally prevailed among them that it was a
measure necessary to preserve and protect the freedom of the newly
enfranchised. It passed the Senate by a vote of 37 to 10, and the House
by a vote of 136 to 33.
[Sidenote: The veto upon it.]
On the 10th of February (1866) it was sent to the President for his
signature. In a Message, dated the 19th of February, the President put
his veto upon this bill. The document was a strong and sound
presentation of reasons for his dissent. He said he could not approve
of a war measure, with an indefinite term, when the authority of the
United States was not disputed in any part of the country, when the
rebellion was at an end, and when the country had returned, or was
returning, to the pursuits of peace. He referred to the fact that the
law of March 3d, 1865, was still in operation, and claimed that it
furnished him with all the extraordinary powers necessary to protect
the freedmen. He called attention to the army of officials which this
proposed law would create, and to the enormous expense which it would
entail. And he denied the constitutional power of the Government of the
United States to assume functions for negroes which it had never been
authorized to assume for white men. There is little question now that
the President was correct about this matter, and that the Congress was
both reckless and aggressive, not to say vindictive. But it is
questionable whether the President did not himself lessen unnecessarily
his influence with his party in Congress, by his unqualified opposition
to any strengthening of the measure of 1865. He might have returned the
bill with the suggestion that it should have a definite limit as to the
time it should run, and have {67} expressed his willingness to sign a
bill which should be so limited. Johnson was blunt in his honesty. But
Seward was his adviser, and Seward was, above everything, politic. It
would seem that he either failed to advise with his usual sagacity in
this case, or that his advice was unheeded.
[Sidenote: The veto effective.]
For this once the President's arguments convinced enough of the
Senators to deprive the bill of the support of the necessary majority
to carry it over his veto, even so stanch a Republican as ex-Governor
Morgan of New York voting against the bill after its return. The
Republican majority was deeply chagrined, not to say discouraged, and
the President was injuriously encouraged to enter upon the struggle
with Congress over the question of Reconstruction.
[Sidenote: The President's 22d of February speech.]
On the evening of the 22d of February, three days after his successful
veto, the President made a most important speech from the steps of the
White House to a large popular meeting assembled to congratulate him
upon his victory. He was betrayed by his elation and warmth into an
abusive denunciation of his enemies, once, and only a few months
before, his best friends. He went so far as to declare that Stevens and
Sumner and Phillips and others like them were, in his opinion, laboring
as assiduously to destroy the fundamental principles of the government
as were the leaders of the rebellion. After such an open challenge, the
contest was nearly unavoidable. It was not avoided, whatever might have
been the possibilities of re-establishing harmony. And it cannot be
denied that, from this moment, personal rancor against the President
filled the heart of Stevens, at least, if not of the others. The
President's utterances were, indeed, highly exasperating, and it would
have required a very large measure of public virtue to have ignored
them.
{68} [Sidenote: The Civil Rights Bill.]
As a part of the same plan for securing the civil rights of the
freedmen against the hostile legislation of the President's
reconstructed "States," the Judiciary Committee of the Senate reported
a Civil Rights bill to the Senate one day before it reported the
Freedmen's Bureau bill, that is, on the 11th of January. The right of
way, so to speak, was, however, given to the latter bill, and Congress
was nearly two months longer in perfecting the former than the latter.
This Civil Rights bill certainly avoided many of the most serious
objections which could be truthfully made against the Freedmen's Bureau
bill. It was not a war measure in a time of peace. It did not provide a
privileged jurisdiction for any class, and it did not create an army of
new officials to drain the Treasury and increase the patronage of the
President.
The purpose of it was simply to establish equality in the enjoyment of
civil rights for all citizens of the country and to make all persons
born in the country and not subject to any foreign power citizens. The
substantial part of the bill, as perfected, read: "All persons born in
the United States and not subject to any foreign power, excluding
Indians not taxed, are hereby declared to be citizens of the United
States; and such citizens of every race and color, without regard to
any previous condition of slavery or involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted,
shall have the same right, in every State and Territory in the United
States, to make and enforce contracts, to sue, be parties, and give
evidence, to inherit, purchase, lease, sell, hold, and convey real and
personal property, and to the full and equal benefit of all laws and
proceedings for the security of person and property, as is enjoyed by
white citizens, and shall be subject to like punishment, pains and
penalties, and to {69} none other, any law, statute, ordinance,
regulation or custom, to the contrary notwithstanding."
This is simply equality for all before the law. It conferred no
political privilege and no social equality. It was fairly within the
power of Congress to pass such a measure, by interpreting broadly the
Thirteenth Amendment, without having any recourse to the idea of war
powers. Slavery was nothing but extreme inequality in civil rights
between master and servant. The prohibition of slavery and involuntary
servitude could, therefore, most certainly be held to be the
prohibition of all of these incidents.
The remaining provisions of the bill did nothing more than fix
penalties for violating, or attempting to violate, civil equality as
thus defined, designate the officers charged with the duty of
prosecuting the offenders, and establish the jurisdiction for the trial
of such cases.
The penalties were somewhat grave. They might be as severe as a fine of
one thousand dollars, or imprisonment for a year, or both, in the
discretion of the courts. But they were not cruel or unusual, and were,
therefore, within the power of Congress to prescribe. The officers
authorized and required to institute proceedings against violators of
the law were the district attorneys, marshals and deputy marshals of
the United States courts, the commissioners appointed by the Circuit
and Territorial courts of the United States, the officers and agents of
the Freedmen's Bureau, and every other officer whom the President might
see fit to empower thereto. And the jurisdiction established for the
trial of such cases was that of the United States courts, upon which
was conferred original and exclusive jurisdiction in any case under the
law, and to which any case touching these subjects commenced in a
"State" court could {70} be removed on motion of the defendant. But all
these things were authorized by a liberal construction of the
Thirteenth Amendment, which expressly vests in Congress the power to
make all laws necessary and proper to enforce the prohibition of
slavery throughout the whole country.
[Sidenote: The measure sound from the points of view of modern
jurisprudence and modern political science.]
It was, indeed, a great change in the system of the jurisprudence of
the United States that the central Government should define and protect
civil equality within the States. But it was a change which history had
forced upon the country, and the sovereign power of the nation had
deliberately legalized it. There is no question now that it was sound
political science, too, and that it was required by public morality.
Real civil liberty is always national. Its concepts and principles
spring out of the national consciousness of rights and wrongs. And
civil equality is the first principle of modern justice, the most
pressing behest of the public morality of the age. Moreover, this
measure did not militate against the President's plan of
Reconstruction. He could have accepted it without compromising that
plan in the slightest, and it was a monumental blunder on his part that
he did not do so.
[Sidenote: The veto of the bill.]
On the 27th of March, he sent his veto of the bill into the Senate. It
was a weak argument throughout. He objected to making the freedmen
citizens by an act of Congress, while eleven of the thirty-six "States"
were unrepresented in Congress, and made out that it was a
discrimination in favor of the ignorant negro against the intelligent
foreigner not yet naturalized. He objected to the extension of the
powers of the central Government in behalf of civil equality within the
"States" as destructive of the federal system of government, and as
degrading to the {71} legislators and officials of the "States." He did
not deny that the proposed measure might be sustained as constitutional
under the Thirteenth Amendment, but maintained that it was unnecessary
for the execution of the provisions of the Amendment. He objected,
further, to the number of officers and agents authorized to institute
proceedings under the measure, to the fee which they should receive,
and to the power of the President to order the courts of the United
States to migrate from one place to another when necessary for the
prompt administration of justice. And he objected, finally, to the
power vested in the President to use the land and naval forces and the
militia to prevent the violation, and enforce the due execution, of the
measure.
Now all this was easily answered from the point of view which Congress
and the North had now firmly taken, viz.: that the eleven former
"States" in which rebellion had for so long prevailed were not
"States," although the territory formerly occupied by them, and the
population formerly inhabiting them, were within the United States and
were subject to the jurisdiction of the central Government; that the
rebellion had demonstrated that the central Government must be
intrusted with a large increase of powers in protecting civil equality
and civil liberty; and that the sovereign Nation had willed this in the
enactment and adoption of the Thirteenth Amendment to the Constitution.
[Sidenote: Criticism of the bill.]
Really there was but one thing in the bill susceptible of successful
criticism, and that could be explained so as to avoid it. It was the
ninth section, which authorized the President to use military power in
execution of the law. The language would permit the President to use
the military before bringing the matter before the courts and securing
a decision. It would permit the President to use the military as the
{72} primal, instead of the final, agency for executing the law. It
appeared to be in this respect a real force bill, that is a bill in
which the Executive is empowered to use the military, not for the
enforcement of judicial decision in aid of the marshals, deputies,
constables, and their posses, which is the customary order in time of
peace, but for the execution of the law in the first instance, before
decision rendered or trial had. But it was entirely clear that what was
meant in this section of the bill was that, when combinations too
powerful to be dealt with by the courts and their officers should
undertake to prevent the execution of the law, the President might use
the military to overcome them. Under such an interpretation, this
provision was justifiable and proper, certainly so in a transition
period from a condition of general rebellion against the laws of the
United States to that of gradual, and only gradual, acquiescence in
their enforcement.
[Sidenote: The President's blunder.]
[Sidenote: The veto overridden.]
The President most decidedly lost his chance of rehabilitating himself
with his party, and leading it in the work of Reconstruction, by not
signing this bill. He sinned against the Southerners themselves in not
doing so. His veto of it made them believe that they could count upon
the Administration, the Administration Republicans, and the whole
Democratic party of the North, in denying equal civil rights to the
freedmen, and that such a combination must eventually triumph. They,
therefore, persisted in their course of exceptional legislation against
the freedmen in the South, and in their arrogant demands for the
immediate admission to seats in Congress of the very men who had led
the rebellion for four years against the sovereignty and Government of
the United States. It is amazing that they did not see that the large
Republican majority in Congress would {73} be driven to the alternative
of seeing the work of four years of terrible sacrifice undone or of
securing its permanence by making such changes in the organic law as
would effect it, while yet they had the power. On the 6th of April, the
Senate overrode the President's veto of the Civil Rights bill, and on
the 9th the House did likewise.
[Sidenote: The Fourteenth Amendment.]
While, as we have seen, the President did not exactly deny the
constitutionality of the bill, the Democrats in Congress, and the
Southerners seeking seats in Congress, did. There was, therefore, but
one course left open to the Republican majority, and that was to make
what they considered to be the incidents of the Thirteenth Amendment
express provisions of the Constitution. There were also several other
things which had become clear in the course of the debates in the Civil
Rights bill and the Freedmen's Bureau bill.
In the first place, it was seen that the emancipation of the slaves
would increase the representation in Congress and in the Presidential
electoral college from the old slave "States" by two-fifths whenever
the Southern communities should be recognized as "States" again, and
that too without the admission of the emancipated persons to the
exercise of political suffrage. It was certainly to be apprehended
that, with such increased representation, the Southern members and the
Northern Democrats would constitute a majority in Congress and in the
electoral college, and might proceed not only to repeal the Civil
Rights Act, and all acts in behalf of the freedmen, but also to throw
the Confederate debt or a part of it upon the United States, or
establish pensions for Confederate soldiers, or even repudiate the debt
of the Union made in defence of its own life. While the danger of these
things was, probably, somewhat {74} exaggerated, still it would not
have been becoming for men of prudence and patriotism to have failed to
provide against them. Really there was but one thing to do, and that
was to enact, and secure the adoption of, another amendment to the
Constitution covering these points, while the power to do so still
existed.
[Sidenote: The political provision in the proposed Fourteenth
Amendment.]
It would be an agreeable thing to the writer of this period of American
history, were he able to record that the principal matter which
occupied the thought and attention of the Committee on Reconstruction
was how to secure the necessary civil rights of the freedmen. But in
the interest of exact truth he is compelled to forego this pleasure.
The first thing which that Committee considered and recommended to the
Houses of Congress was the political matter of a redistribution of the
representation in the House of Representatives and in the Presidential
electoral college. On the 22d of January (1866) the Committee reported
to the two Houses the following proposition as an amendment to the
Constitution of the United States: "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."
For nearly six weeks both the Committee and Congress were occupied in
the discussion of this proposition. In a slightly modified form it was
adopted in the House, but, at last, on the 9th of March, it came to
vote in the Senate, and not having received the necessary two-thirds
majority, it was abandoned as a separate measure, and {75} merged into
the general article containing the regulations of all the points to
which reference was made above.
It was Monday, April 30th, before the Committee was ready to report the
entire article, which took the name of the Fourteenth Amendment to the
Constitution. The article as presented to the Houses of Congress by the
Joint Committee on that day read as follows:
"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
such male citizens shall bear to the whole number of male citizens not
less than twenty-one years of age.
"Sect. 3. Until the 4th 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 {76} 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 power to enforce, by appropriate
legislation, the provisions of this Article."
[Sidenote: Defects in the first draft of the Amendment.]
The chief difficulties with these provisions were, first, that they did
not define who were the citizens of the United States; second, that
while they disfranchised for two or three years all who had voluntarily
taken part in the rebellion, they did not disqualify anybody from
holding office or legislative mandate on account of such conduct; and
third, that while they forbade the payment of any debt or obligation
incurred in aid of rebellion, they did not guarantee those incurred in
the suppression of such rebellion.
[Sidenote: The discussion of the propositions in Congress.]
The discussion in Congress upon these provisions lasted through the
month of May and well into June. At last in the second week of June,
the two Houses arrived at an agreement upon the modifications which
seemed proper and necessary, and the Article as thus perfected was
adopted by the necessary two-thirds vote in each branch.
[Sidenote: The final draft agreed upon.]
The first section had been modified by the incorporation into it of a
sentence which defined citizenship of the United States. It reads: "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." This cleared up all difficulties in
determining who the persons were, whose privileges and immunities were
to be protected against "State" action. It also settled the question,
forever, as to whether citizenship of the United States or citizenship
of the "State" is primary. There is no doubt that in that clause of the
original {77} Constitution which declares that the Constitution of the
United States, and the laws of Congress made in accordance therewith,
and the treaties made under the authority thereof, are the supreme law
of the land, no matter what may be found in "State" constitutions or
laws to the contrary, primary allegiance of all citizens and persons to
the United States was established and required, but the advocates of
"State" sovereignty always contended that, because there was no express
clause in the Constitution defining citizenship, and declaring the
citizenship of the United States primary, citizenship was primarily of
the "State," and, hence, allegiance was due primarily to the "State" by
all its inhabitants. It was very proper and very desirable that this
contention should be set at rest.
The language of the second section had been revised so as to make its
meaning more clear, but it had not been changed at all as to its
meaning. It reads in its perfected form: "Representatives shall be
apportioned among the several States according to their respective
numbers, counting the whole number of persons in each State, 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."
For section third, denying suffrage until 1870 to all {78} persons who
had given aid voluntarily to the rebellion, Congress had substituted an
entirely new resolution, which rendered the Confederate chieftains
ineligible to office instead of disqualifying the rank and file for
suffrage. It reads as follows: "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 of each
House, remove such disability."
This was certainly a wise change. It certainly could not be contended
that disqualifications for holding office and legislative mandate
violated any so-called natural right. It was better that whatever
punishments of a political nature might fall upon the Confederates
should strike the leaders, rather than the followers. And it was not a
severe punishment which required that, for a time at least, the people
inhabiting the communities lately in rebellion should choose as their
representatives to the National legislature and to the Presidential
electoral college, and as their "State" officers, men not identified
with the rebellion so closely as to have been among its leaders. It is
difficult to see how the Confederate leaders could have been required
to suffer less, and have been rebuked at all for their acts.
Finally, section four was supplemented by a sentence which declared
that "the validity of the public debt of the United States, authorized
by law, including debts {79} incurred for payment of pensions and
bounties for services in suppressing insurrection or rebellion, shall
not be questioned." The last words of the section were also somewhat
modified in the direction of greater emphasis, but the meaning remained
the same. As thus perfected, the section declared the validity of all
the existing obligations of the United States, and repudiated all
obligations whatsoever assumed in aid of rebellion, and all claims for
the loss or emancipation of any slave. This covered the ground
completely in regard to the security of the public obligations of the
United States both from the positive and negative side, and it
prevented both Congress and the "States" from ever recognizing, in the
future, the claim for any relief from the natural consequences of
unsuccessful rebellion, and the right to any compensation for
deprivation of property in man.
As Congress passed these propositions by the necessary two-thirds
majority they were not submitted to the President at all, it being
considered that his disapproval, if given, would avail nothing against
such a majority. This has been the custom from the first in
Congressional propositions of amendment, and it is now too late to
dispute its regularity. But it is easy to see that the President might
support a veto of such propositions by such reasoning as to make it at
least possible that sufficient votes might be changed from affirmative
to negative upon them, to finally defeat them; and it is certainly true
that the Constitution requires that every bill, order, resolution, or
vote to which the concurrence of the Senate and House of
Representatives may be necessary (except on a question of adjournment)
shall be presented to the President and is subject to his approval or
veto, no matter by what majority it may have been passed.
{80} [Sidenote: The President's attitude toward the proposed
amendment.]
However, President Johnson had no opportunity to express himself
officially or make himself officially felt in regard to this Amendment.
It was pretty well understood that he did not view it with favor while
it was pending, and it soon became manifest that he was advising its
rejection by the "States."
[Sidenote: Mr. Seward's acts in regard to ratification.]
Mr. Seward issued his notification of the passage of the amendment by
Congress to the "State" legislatures for their ratificatory action on
the 16th of June. He sent the same to the legislatures of all the
"States," that is, to the legislatures of those bodies claiming to be
"States" under the President's plan of Reconstruction, as well as to
the legislatures of those "States" which had never pretended to secede
from the Union. This was, again, certainly a recognition of all these
bodies as "States" of the Union by the executive branch of the
Government, at least.
[Sidenote: The requirement that the ratification of the proposed
Amendment should be the condition of the admission of the Senators- and
Representatives-elect to seats in Congress.]
On the other hand, the Reconstruction Committee of Congress had
reported a bill along with the Article of Amendment, which virtually
proposed to make the ratification of the proposed Amendment by the
respective legislatures of the reconstructed Southern communities the
condition of the admission of the Senators- and Representatives-elect
from them to seats in Congress. That is, it was proposed that Congress
should make its recognition of the reconstructed bodies as "States"
conditional upon their ratification of the Article of Amendment. Or
perhaps some of those supporting this proposition would have preferred
the statement that it was proposed that Congress should make its
recognition of the reconstructed governments of the "States" in which
secession had {81} been attempted conditional upon the ratification of
the Amendment by the legislative departments of these reconstructed
governments respectively.
[Sidenote: The absurdity of the condition.]
No matter how it might have been stated, it was an absurdity. The true
theory on this point was that held by Mr. Stevens, viz., to consider
only those "States" which had never attempted secession, those "States"
which had never been members of the Southern Confederacy, as
constituting the "States" of the Union at that moment, and all other
territory and people subject to the jurisdiction of the United States
as being under the exclusive government of the central Government; to
amend the Constitution by a three-fourths majority of these loyal
"States"; and then to admit these reconstructed communities as new
"States" into the Union with its amended Constitution.
The amended Constitution would then have the same power over them as if
the Amendment had been ratified by them. In fact, their petition for
admission or recognition as "States" of the Union with the amended
Constitution would imply their assent to the Amendment as well as to
every other part of the Constitution. The more moderate Republicans
feared that the Southern communities would not feel obligated by a
Constitution amended in this way. It is difficult to see why they
should not. The Southern statesmen knew that Congress had no power
under the Constitution to require of new "States" obedience to anything
as a condition of their admission to the Union, but the Constitution as
it was at the moment of their admission. Looked at from the point of
view of the present, it would certainly appear that the exaction of
such an unlawful promise, imposing such a degrading discrimination,
would have been far more exasperating than anything else which could
have been invented or imagined.
{82} Enough of them saw this to prevent Congress from enacting the bill
proposed by the Reconstruction Committee into a law, and when the
proposed Amendment went to the legislatures of the "States," there was
no requirement attending it which appeared to deprive any legislature,
or body claiming to be a legislature, of its discretion in dealing with
the subject.
[Sidenote: The precedent set by Tennessee.]
As a matter of fact, however, the legislature of Tennessee ratified the
proposed Amendment within about a month after receiving the Article
from Secretary Seward, and Congress thereupon passed the following
joint resolution and sent it to the President for his signature:
"Whereas in the year 1861 the government of the State of Tennessee was
seized upon and taken possession of by persons in hostility to the
United States, and the inhabitants of said State, in pursuance of an
act of Congress, were declared to be in a state of insurrection against
the United States; and whereas said State government can only be
restored to its former political relations in the Union by consent of
the lawmaking power of the United States; and whereas the people of
said State did, on the 22d of February, 1865, by a large popular vote,
adopt and ratify a constitution of government whereby slavery was
abolished and all ordinances and laws of secession and debts contracted
under the same were declared void; and whereas a State government has
been organized under said constitution which has ratified the amendment
to the constitution abolishing slavery, also the amendment proposed by
the thirty-ninth Congress" (the Fourteenth Amendment) "and has done
other acts proclaiming and denoting loyalty: Therefore, _Be it resolved
by the Senate and House of Representatives in Congress assembled_, That
the State of Tennessee is hereby restored to her former practical
relations to the {83} Union, and is again entitled to be represented by
Senators and Representatives in Congress."
[Sidenote: The Tennessee precedent.]
These proceedings made it certain that, while Congress had failed to
pass any formal act making the acceptance of the proposed Fourteenth
Amendment a condition precedent to the readmission of the other
"States" which had been in rebellion, Congress would not readmit any of
them which did not do this. Tennessee, it was thought, had sinned the
least of all, and, therefore, should be readmitted on lightest terms.
More might be righteously required of the others, but not less.
[Sidenote: The President's message in regard to the rehabilitation of
Tennessee.]
The President signed the resolution, but accompanied the same with a
short message in which he made a rather telling criticism upon the
procedure of submitting proposed constitutional amendments to bodies
not already "States" in the Union, and warned Congress against
construing his approval as committing him to all of the statements of
fact contained in the preamble to the resolution, or to the doctrine
that Congress had any right "to pass laws preliminary to the admission
of duly qualified Representatives from any of the States." These latter
words manifest the fact that the President was still holding on to the
idea that the whole function of Congress in Reconstruction consisted in
the power of each House to judge of the election and qualifications of
its members.
{84}