CHAPTER IX.

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 princ.i.p.al 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 Const.i.tution 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 Const.i.tution--so grave an omission, indeed, that the guarantee ent.i.tling 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 ma.s.s 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 t.i.tle.

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 ma.s.s of rebels been pardoned by the amnesty proclamation of May 29th, but many thousands of the cla.s.ses 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 ma.s.ses 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 a.s.sumed 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 inst.i.tution 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 partic.i.p.ated 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 Const.i.tution. 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 Const.i.tutional 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 partic.i.p.ation 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 ma.s.s 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 Const.i.tution 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 Const.i.tution 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 Const.i.tutional 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 const.i.tution 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. a.s.suming voters as the basis of apportionment and allowing to Vermont three representatives, California would be ent.i.tled 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 a.s.suming the white male voters as the basis of apportionment." On the 15th of January Mr. Conkling submitted a Const.i.tutional 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 Const.i.tution 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 Const.i.tution, and after its adoption the State of South Carolina should re-instate her old const.i.tution, 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 cla.s.s 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 Const.i.tutional 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 Const.i.tution, 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. Sh.e.l.labarger 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, a.s.sociated with that clause in our Const.i.tution 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 Ma.s.sachusetts 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 ill.u.s.trations already given of the inefficacy of the proposed amendment to reach the desired end, one of special force and pertinency. "Suppose," said he, "this Const.i.tutional 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 Const.i.tutional 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 const.i.tution 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 ent.i.tled 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 Const.i.tution."

He quoted the declaration of Madison in the convention of 1787, that it was wrong to admit into the Const.i.tution 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 Const.i.tution the idea than man could hold property in man. Accordingly, in this spirit the Const.i.tution was framed. This offensive idea was not admitted. The text at least was kept blameless.

And now, after generations have pa.s.sed, surrounded by the light of Christian truth and in the very blaze of human freedom, it is proposed to admit into the Const.i.tution 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 Const.i.tution 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 a.n.a.lysis of what const.i.tuted a true republic, closing with an eloquent plea for the ballot for the freedmen. He demanded "enfranchis.e.m.e.nt 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 G.o.d, 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 ent.i.tled to all the rights of human nature." . . . "You cannot deny these rights without impiety. G.o.d 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 t.i.tle 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 G.o.d-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 ill.u.s.trating 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 Const.i.tution 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 Const.i.tution, shall be the supreme law of the land, any thing in the const.i.tution 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 Const.i.tution authorize oligarchy, aristocracy, caste or monopoly? Not at all. Are you not as safe under the Const.i.tution as you are under an Act of Congress? Why re-enact the Const.i.tution 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 Const.i.tution 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 Ma.s.sachusetts 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 Const.i.tution 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 Ma.s.sachusetts 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 Ma.s.sachusetts. I believe I have in my desk a proposition he made to amend the Const.i.tution (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 Const.i.tutional 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 subst.i.tute for the committee's proposition to amend the Const.i.tution: "_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 a.s.sociates 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 Const.i.tutional 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 ent.i.tled 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 ent.i.tled 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 ca.s.sation of discussion on the question of changing the Const.i.tution, 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 Const.i.tution 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 partic.i.p.ation in all political rights, and enacting in substance that when the Const.i.tutional 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 a.s.senting 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 cla.s.ses 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 p.r.o.nounced 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 pa.s.sed 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 partic.i.p.ated 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 cla.s.ses in the South that had partic.i.p.ated in the Rebellion. . . . Do we not by the proposed action place ourselves in the att.i.tude of taking back by Const.i.tutional 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 Const.i.tutional 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."