Twenty Years of Congress Volume Ii Part 11

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 cla.s.ses 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 Const.i.tution. 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 cla.s.ses--one cla.s.s 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 Const.i.tutional 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 const.i.tutional 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 subst.i.tute, which is precisely that which became formally incorporated in the amendment as it pa.s.sed. 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 a.s.suming the office took the oath prescribed by the Const.i.tution, became obligated by that oath to stand by the Const.i.tution 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 Const.i.tution 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 Const.i.tutional 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 Const.i.tution of the United States, there is a fair implication that he cannot afterwards commit an act which in its effect would destroy the Const.i.tution 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 Const.i.tution 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 cla.s.ses to whom the obligation of an oath to support the Const.i.tution was prescribed in the sixth article of the Const.i.tution, 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 Const.i.tution."

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 Const.i.tutionality 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 Const.i.tution, 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 Const.i.tution, which is the supreme law of the land, you can annul all existing rights. You could, perhaps, by an amendment to the Const.i.tution, 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 Const.i.tutional amendment, pa.s.s 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 Const.i.tution. 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 subst.i.tuting 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 Const.i.tutional provisions in appropriate language, now moved to subst.i.tute for section four, which had gone through various mutations not necessary to recount here, the precise section as it now stands in the Const.i.tution.

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 Const.i.tution and laws."

He had just admitted the broadest possible power of a Const.i.tutional 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 partic.i.p.ation in the Rebellion, _could not a.s.sume 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 Const.i.tutional 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 Const.i.tutional amendment finally pa.s.sed, to that which had been proposed as it pa.s.sed the House. The amendment could not probably be incorporated in the Const.i.tution for a year and according to the original proposition of the House, therefore, it would only have excluded those who partic.i.p.ated 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 ma.s.s 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 subst.i.tuting that which was incorporated in the Const.i.tution 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 subst.i.tution was made, in effect, by a unanimous vote of the Senate.

On the final pa.s.sage 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 subst.i.tuting the ineligibility of certain high officials for the disfranchis.e.m.e.nt 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 Const.i.tutional 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 Const.i.tutional amendment not requiring the a.s.sent 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 a.s.sent 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 a.s.sent 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 Const.i.tution of the United States, and any State lately in insurrection shall have ratified the same and shall have modified its const.i.tution 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 ent.i.tled 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 Ma.s.sachusetts 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 pa.s.sed 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 princ.i.p.al 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 Const.i.tution 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 pa.s.sed, approved and placed on the statute-books before any amendment to the Const.i.tution 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 ent.i.tled to representation, they may nevertheless have an equally potent voice with other States in amending the Const.i.tution, 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 pa.s.s 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 Const.i.tutional 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 a.s.sent to the incorporation of the Fourteenth Amendment in the Const.i.tution. 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 const.i.tuency 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 Const.i.tution (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 partic.i.p.ation 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 a.s.sume 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. c.o.c.krell, 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 partic.i.p.ation 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 Const.i.tution 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 a.s.sume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emanc.i.p.ation of any slave; but all such debts, obligations, and claims shall be held illegal and void.