CHAPTER XVIII.
THE RECONSTRUCTION AMENDMENT—IN THE SENATE.
Difference between Discussions in the House and in the Senate — Mr. Sumner proposes to postpone — Mr. Howard takes Charge of the Amendment — Substitutes proposed — The Republicans in Council — The Disfranchising Clause stricken out — Humorous Account by Mr. Hendricks — The Pain and Penalties of not holding Office — A Senator's Piety appealed to — Howe vs. Doolittle — Marketable Principles — Praise of the President — Mr. Mcdougall's Charity — Vote of the Senate — Concurrence in the House.
The joint resolution providing for amendments to the Constitution in relation to the rights of citizens, the basis of representation, the disfranchisement of rebels, and the rejection of the rebel debt, having passed the House of Representatives on the 10th of May, awaited only similar action of the Senate to prepare it to go before the several State Legislatures for final consideration. A fortnight had elapsed before it was taken up by the Senate. That body was much behind the House of Representatives in the business of the session. Notwithstanding the great size of the latter, it was accustomed to dispatch business with much greater rapidity than the Senate. The hour rule, limiting the length of speeches, and the previous question putting a boundary upon debate, being part of the machinery of the House, caused legislation to go on to final completion, which would otherwise have been swallowed up and lost in interminable talk.
The Senate, consisting of a smaller number, did not realize the need of such restrictions. Senators sometimes indulged themselves in speeches of such length as, if permitted in the House, would have proved an insurmountable obstacle to legislation.
[Illustration: Hon. E. O. Morgan, Senator from New York.]
The contrast between the discussions in the two houses of Congress was never more marked than in connection with the amendment relating to reconstruction. In this case the members of the House by special rule limited themselves to half an hour in the delivery of their speeches, which were consequently marked by great pertinency and condensation. In the Senate the speeches were in some instances limited only by the physical ability of the speakers to proceed. In one instance—the case of Garrett Davis—a speech was prolonged four hours, occupying all that part of the day devoted to the discussion. The limits of a volume would be inadequate for giving more than a mere outline of a discussion conducted upon such principles, and protracted through a period of more than two weeks.
The joint resolution was taken up by the Senate on the 23d of May. Mr. Sumner preferred that the consideration of the question should be deferred until the first of July. "We were able," said he, "to have a better proposition at the end of April than we had at the end of March, and I believe we shall be able to accept a better proposition just as the weeks proceed. It is one of the greatest questions that has ever been presented in the history of our country or of any country. It should be approached carefully and solemnly, and with the assurance we have before us all the testimony, all the facts, every thing that by any possibility can shed any light upon it."
The Senate proceeded, however, to the consideration of the joint resolution. Owing to the ill-health of Mr. Fessenden, who, as Chairman of the joint Committee on Reconstruction, would probably have taken charge of the measure, Mr. Howard opened the discussion and conducted the resolution in its passage through the Senate. He addressed the Senate in favor of all the sections of the proposed amendment except the third. "It is due to myself," said he, "to say that I did not favor this section of the amendment in the committee. I do not believe, if adopted, it will be of any practical benefit to the country."
Mr. Clark offered a substitute for the third section—the disfranchising clause—the following amendment, which, with slight modifications, was ultimately adopted:
"That no person shall be a Senator or Representative in Congress, or permitted to hold any office under the Government of the United States, who, having previously taken an oath to support the Constitution thereof, shall have voluntarily engaged in any insurrection or rebellion against the United States, or given aid or comfort thereto."
Mr. Wade offered a substitute for the whole bill, providing that no State shall abridge the rights of any person born within the United States, and that no class of persons, as to whose right to suffrage discrimination shall be made by any State except on the ground of intelligence, property, or rebellion, shall be included in the basis of representation. "I do not suppose," said Mr. Wade, "that if I had been on the committee I could have drawn up a proposition so good as this is that they have brought forward; and yet it seems to me, having the benefit of what they have done, that looking it over, reflecting upon it, seeing all its weak points, if it have any, I could, without having the ability of that committee, suggest amendments that would be beneficial."
Referring to the third section of the joint resolution, Mr. Wade remarked: "I am for excluding those who took any leading part in the rebellion from exercising any political power here or elsewhere now and forever; but as that clause does not seem to effect that purpose, and will probably effect nothing at all, I do not think it is of any consequence that it should have a place in the measure."
On the 24th of May, Mr. Stewart spoke three hours on the constitutional amendment. He advocated the extension to the States lately engaged in rebellion of all civil and political rights on condition of their extending impartial suffrage to all their people. He announced his policy as that of "protection for the Union and the friends of the Union, and mercy to a fallen foe. Mercy pleaded generous amnesty; justice demanded impartial suffrage. I proposed pardon for the rebels and the ballot for the blacks." Of the Committee on Reconstruction, Mr. Stewart said: "I realize the difficulties which they have been called upon to encounter. They have acted a noble part in their efforts to harmonize conflicting opinions. I rejoice in the manner in which the report is presented, and the liberal spirit manifested by the committee toward those who are anxious to aid in the perfection of their plan."
Mr. Johnson moved to strike out the third section, without offering a substitute.
Mr. Sherman offered a substitute for the second and third sections, apportioning representation according to the number of male citizens qualified to vote by State laws, and apportioning direct taxes according to the value of real and personal property.
The constitutional amendment was not again brought up for consideration in the Senate until Tuesday, May 29th. The several days during which the discussion was suspended in the Senate were not fruitless in their effect upon the pending measure. The amendment was carefully considered by the majority in special meetings, when such amendations and improvements were agreed upon as would harmonize the action of the Republicans in the Senate.
The first action of the Senate, when the subject was resumed, was to vote upon Mr. Johnson's motion to strike out the third section, which was passed unanimously—yeas, 43; nays, 0.
Mr. Howard, acting for the committee, then offered a series of amendments to the joint resolution under consideration. The first of these provided for the insertion as a part of section one, the following clause:
"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."
Another modification moved by Mr. Howard was the insertion, in place of the third section already stricken out, a clause disabling certain classes of rebels from holding federal offices. This amendment was substantially the same as that previously proposed by Mr. Clark.
It was proposed to amend section four, which, as passed by the House, simply repudiated the rebel debt, by inserting the following clause:
"The obligations of the United States incurred in suppressing insurrection, or in defense of the Union, or for payment of bounties or pensions incident thereto, shall remain inviolate."
Such were the amendments to the pending measure which the majority saw proper to propose.
At a subsequent period of the debate, Mr. Hendricks, in a speech against the joint resolution, gave his view of the manner in which these amendments were devised. Being spoken, in good humor, by one whom a fellow-Senator once declared to be "the best-natured man in the Senate," and having, withal, a certain appropriateness to this point, his remarks are here presented:
"For three days the Senate-chamber was silent, but the discussions were transferred to another room of the Capitol, with closed doors and darkened windows, where party leaders might safely contend for a political and party policy. When Senators returned to their seats, I was curious to observe who had won and who lost in the party lottery. The dark brow of the Senator from New Hampshire [Mr. Clark] was lighted with a gleam of pleasure. His proposed substitute for the third section was the marked feature of the measure. But upon the lofty brow of the Senator from Nevada [Mr. Stewart] there rested a cloud of disappointment and grief. His bantling, which he had named universal amnesty and universal suffrage, which he had so often dressed and undressed in the presence of the Senate, the darling offspring of his brain, was dead; it had died in the caucus; and it was left to the sad Senator only to hope that it might not be his last. Upon the serene countenance of the Senator from Maine, the Chairman of the Fifteen, there rested the composure of the highest satisfaction; a plausible political platform had been devised, and there was yet hope for his party."
On the 30th of May, the Senate, as in Committee of the Whole, proceeded in the consideration of the constitutional amendment. The several clauses were taken up separately and in order.
Mr. Doolittle was desirous of amending the first section, relating to the rights of citizens, by inserting a clause excepting from its operation "Indians not taxed." His proposition was rejected.
"The Committee of Fifteen," said Mr. Doolittle, referring to the Civil Rights Bill, "fearing that this declaration by Congress was without validity unless a constitutional amendment should be brought forward to enforce it, have thought proper to report this amendment."
"I want to say to the honorable Senator," Mr. Fessenden replied, "that he is drawing entirely upon his imagination. There is not one word of correctness in all that he is saying; not a particle; not a scintilla; not the beginning of truth."
The first and second sections of the amendment were accepted in
Committee of the Whole, with little further attempt at alteration.
The third section, cutting off late Confederate officials from eligibility to Federal offices, provoked repeated attempts to modify and emasculate it. Among them was a motion by Mr. Saulsbury to amend the final clause by adding that the President, by the exercise of the pardoning power, may remove the disability.
It augured the final success of the entire amendment in the Senate, that the numerous propositions to amend, made by those unfavorable to the measure, were voted down by majorities of more than three-fourths.
Mr. Doolittle, speaking in opposition to the third section, said that it was putting a new punishment upon all persons embraced within its provisions. "If," said he, "by a constitutional amendment, you impose a new punishment upon offenders who are guilty of crime already, you wipe out the old punishment as to them. Now, I do not propose to wipe out the penalties that these men have incurred by their treason against the Government. I would punish a sufficient number of them to make treason odious."
"How many would you like to hang?" asked Mr. Nye.
"You stated the other day that five or six would be enough to hang," replied Mr. Doolittle.
"Do you acquiesce in that?" asked Mr. Nye.
"I think I ought to be satisfied," replied Mr. Doolittle, "if you are satisfied with five or six.
"The insertion of this section," said Mr. Doolittle, continuing his remarks, "tends to prevent the adoption of the amendment by a sufficient number of States to ratify it. What States to be affected by this amendment will ratify it?"
"Four will accept that part of it," said Mr. James H. Lane.
"What four?" asked Mr. Doolittle.
"Virginia, Tennessee, Arkansas, and Louisiana," replied Mr. Lane. "I saw some gentlemen on Monday from Tennessee, who told me that this particular clause would be the most popular thing that could be tendered. And the very men that you want to hang ought to accept it joyfully in lieu of their hanging." [Laughter.]
"I do not know who those particular gentlemen were," said Mr.
Doolittle. "Were they the gentlemen that deserved hanging or not?"
"They were Conservatives from Tennessee," replied Mr. Lane.
"I deem this section as the adoption of a new punishment as to the persons who are embraced within its provisions," said Mr. Doolittle.
"They seem to have peculiar notions in Wisconsin in regard to officers," said Mr. Trumbull; "and the Senator who has just taken his seat regards it as a punishment that a man can not hold an office. Why, sir, how many suffering people there must be in this land! He says this is a bill of pains and penalties because certain persons can not hold office; and he even seems to think it would be preferable, in some instances, to be hanged. He wants to know of the Senator from Ohio if such persons are to be excepted. This clause, I suppose, will not embrace those who are to be hanged. When hung, they will cease to suffer the pains and penalties of being kept out of office.
"Who ever heard of such a proposition as that laid down by the Senator from Wisconsin, that a bill excluding men from office is a bill of pains, and penalties, and punishment? The Constitution of the United States declares that no one but a native born citizen of the United States shall be President of the United States. Does, then, every person living in this land who does not happen to have been born within its jurisdiction undergo pains, and penalties, and punishment all his life because by the Constitution he is ineligible to the Presidency? This is the Senator's position."
Mr. Willey spoke in favor of the pending clause of the joint resolution. "I hope," said he, "that we shall hear no more outcry about the injustice, the inhumanity, and the want of Christian spirit in thus incorporating into our Constitution precautionary measures that will forever prohibit these unfaithful men from again having any part in the Government."
"The honorable Senator," remarked Mr. Davis in reply, "is a professor of the Christian religion, a follower of the lowly and humble Redeemer; but it seems to me that he forgot all the spirit of his Christian charity and faith in the tenor of the remarks which he made."
"This cry for blood and vengeance," exclaimed Mr. Saulsbury, "can not last forever. The eternal God who sits above, whose essence is love, and whose chief attribute is mercy, says to all his creatures, whether in the open daylight or in the silent hours of the night, 'Be charitable; be merciful.'"
Mr. Doolittle proposed two amendments to section three: the first to limit its application to those who "voluntarily engaged in rebellion," and the second to except those "who have duly received amnesty and pardon."
These propositions were both rejected by large majorities, only ten
Senators voting for them. The third section, as proposed by Mr.
Howard, was then adopted by a vote of thirty against ten.
The death of General Scott having been the occasion of an adjournment of Congress, the consideration of the constitutional amendment was not resumed until the 4th of June. Mr. Hendricks moved to amend by including in the basis of representation in the Southern States three-fifths of the freedmen. Mr. Van Winkle offered an amendment providing that no person not excluded from office by the terms of the third section shall be liable to any disability or penalty for treason after a term of years. Both of these propositions were rejected by the Senate.
On the 5th of June, Mr. Poland, Mr. Stewart, and Mr. Howe addressed the Senate in favor of the constitutional amendment. Mr. Poland did not expect to be able to say any thing after six months' discussion of this subject. He took more hopeful views of the President's tractability than many others. "Although these propositions," said he, "may not, in all respects, correspond with the views of the President, I believe he will feel it to be his patriotic duty to acquiesce in the plan proposed, and give his powerful influence and support to procure their adoption."
"While it is not the plan that I would have adopted," said Mr. Stewart, "still it is the best that I can get, and contains many excellent provisions."
"I shall vote for the Constitutional amendment," said Mr. Howe, "regretfully, but not reluctantly. I shall vote for it regretfully, because it does not meet the emergency as I hoped the emergency would be met; but I shall not vote for it reluctantly, because it seems to me just now to be the only way in which the emergency can be met at all."
An issue of some personal interest arose between Mr. Howe and his colleague, Mr. Doolittle, which led them somewhat aside from the regular channel of discussion.
"He has been a most fortunate politician," said Mr. Howe, "always to happen to have just those convictions which bore the highest price in the market."
"That I ever intended in the slightest degree," replied Mr. Doolittle, "to swerve in my political action for the sake of offices or the price of offices in the market, is a statement wholly without foundation."
Mr. Howe had said in substance that in 1848 Mr. Doolittle was acting with the Free Democratic party in New York, which was stronger than the Democratic party in that State. In 1852, when he left the Free Democratic party, and acted with the Democratic party in Wisconsin, the Democratic party was in the majority in that State. He did not leave the Democratic party and join the Republican party in 1854, but only in 1856, and then Wisconsin was no longer a Democratic State.
Mr. Doolittle, after having given a detailed account of his previous political career, remarked: "During the last six months, in the State of Wisconsin, no man has struggled harder than I have struggled to save the Union party, to save it to its platform, to save it to its principles, to save it to its supremacy. For six months, from one end of Wisconsin to the other—ay, from Boston to St. Paul—by every one of a certain class of newspapers I have been denounced as a traitor to the Union party because I saved it from defeat. Sir, it is not the first time in the history of the world that men have turned in to crucify their savior."
On the same day, June 6th, Messrs. Hendricks, Sherman, Cowan, and others having participated in the discussion, the Senate voted on another amendment offered by Mr. Doolittle, apportioning Representatives, after the census of 1870, according to the number of legal voters in each State by the laws thereof. This proposition was rejected—yeas, 7; nays, 31.
On the 7th of June, Mr. Garrett Davis occupied the entire time devoted to the constitutional amendment in opposing that measure, denouncing Congress, and praising the President. "There is a very great state of backwardness," said he, "in both houses of Congress in relation to the transaction of the legitimate, proper, and useful portion of the public business; but as to the business that is of an illegitimate and mischievous character, and that is calculated to produce results deleterious to the present and the future of the whole country, there has been a good deal, much too much, of progress made."
Of President Johnson Mr. Davis said: "He seems to be the man for the occasion; and his ability, resources, courage, and patriotism have developed to meet its great demands. If this ark which holds the rights and liberties of the American people is to be rescued and saved, he will be one of the chief instruments in the great work, and his glory and fame will be deathless."
On the 8th of June, the last day of the discussion, the constitutional amendment was opposed by Messrs. Johnson, McDougall, and Hendricks, and defended by Messrs. Henderson, Yates, and Howard.
"Let us bring back the South," said Mr. Johnson, in closing his remarks, "so as to enable her to remove the desolation which has gone through her borders, restore her industry, attend to her products, instead of keeping her in a state of subjection without the slightest necessity. Peace once existing throughout the land, the restoration of all rights brought about, the Union will be at once in more prosperous existence than it ever was; and throughout the tide of time, as I believe, nothing in the future will ever cause us to dream of dissolution, or of subjecting any part, through the powerful instrumentality of any other part, to any dishonoring humiliation."
"I went down once on the Mississippi," remarked Mr. McDougall, "at the opening of the war. I met a general of the Confederate army, and I took him by the hand and took him to my state-room, on board of my gun-boat. Said he, 'General,' throwing his arms around me, 'how hard it is that you and I have to fight.' That was the generosity of a combatant. I repeated to him, 'It is hard,' and he and I drank a bottle of wine or two—just as like as not. [Laughter.] This thing of bearing malice is one of the wickedest sins that men can bear under their clothes."
Speaking of the third section, which had encountered great opposition, as inflicting undue punishment upon prominent rebels, Mr. Henderson said: "If this provision be all, it will be an act of the most stupendous mercy that ever mantled the crimes of rebellion."
"Let us suppose a case," said Mr. Yates. "Here is a man—Winder, or Dick Turner, or some other notorious character. He has been the cause of the death of that boy of yours. He has shot at him from behind an ambuscade, or he has starved him to death in the Andersonville prison, or he has made him lie at Belle Isle, subject to disease and death from the miasma by which he was surrounded. When he is upon trial and the question is, 'Sir, are you guilty, or are you not guilty?' and he raises his blood-stained hands, deep-dyed in innocent and patriotic blood, the Senator from Pennsylvania rises and says, 'For God's sake! do not deprive him of the right to go to the legislature.' The idea is that if a man has forfeited his life, it is too great a punishment to deprive him of the privilege of holding office."
Speaking of radicalism, Mr. Yates remarked: "My fear is not that this Congress will be too radical; I am not afraid of this Congress being shipwrecked upon any proposition of radicalism; but I fear from timid and cowardly conservatism which will not risk a great people to take their destiny in their own hands, and to settle this great question upon the principles of equality, justice, and liberality. That is my fear."
Mr. Doolittle moved that the several sections of the amendment be submitted to the States as separate articles. This motion was rejected—yeas, 11; nays, 33.
The vote was finally taken upon the adoption of the constitutional amendment as a whole. It passed the Senate by a majority of more than two-thirds, as follows:
YEAS—Messrs. Anthony, Chandler, Clark, Conness, Cragin,
Creswell, Edmunds, Fessenden, Foster, Grimes, Harris,
Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of
Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey,
Sherman, Sprague, Stewart, Sumner, Trumbull, Wade, Willey,
Williams, Wilson, and Yates—33.
NAYS—Messrs. Cowan, Davis, Doolittle, Guthrie, Hendricks,
Johnson, McDougall, Norton, Riddle, Saulsbury, and Van
Winkle—11.
On the 13th of June, the joint resolution, having been modified in the Senate, reäppeared in the House for the concurrence of that branch of Congress. There was a short discussion of the measure as amended in the Senate. Messrs. Rogers, Finck, and Harding spoke against the resolution, and Messrs. Spalding, Henderson, and Stevens in its favor.
"The first proposition," said Mr. Rogers, "was tame in iniquity, injustice, and violation of fundamental liberty to the one before us."
"I say," said Mr. Finck, "it is an outrage upon the people of those States who were compelled to give their aid and assistance in the rebellion. You propose to inflict upon these people a punishment not known to the law in existence at the time any offense may have been committed, but after the offense has been committed."
"Let me tell you," said Mr. Harding, "you are preparing for revolutions after revolutions. I warn you there will be no peace in this country until each State be allowed to control its own citizens. If you take that from them, what care I for the splendid machinery of a national government?"
Mr. Stevens briefly addressed the House before the final vote was taken. He had just risen from a sick-bed, and ridden to the Capitol at the peril of his life. During the quarter of an hour which he occupied in speaking, the solemnity was such as is seldom seen in that assembly. Members left their seats, and gathered closely around the venerable man to hear his brave and solemn words. From his youth he had hoped to see our institutions freed from every vestige of human oppression, of inequality of rights, of the recognized degradation of the poor and the superior caste of the rich. But that bright dream had vanished. "I find," said he, "that we shall be obliged to be content with patching up the worst portions of the ancient edifice, and leaving it in many of its parts to be swept through by the tempests, the frosts, and the storms of despotism."
It might be inquired why, with his opinions, he accepted so imperfect a proposition. "Because," said he, "I live among men, and not among angels; among men as intelligent, as determined, and as independent as myself, who, not agreeing with me, do not choose to yield their opinions to mine." With an enfeebled voice, yet with a courageous air, he charged the responsibility for that day's patchwork upon the Executive. "With his cordial assistance," said Mr. Stevens, "the rebel States might have been made model republics, and this nation an empire of universal freedom; but he preferred 'restoration' to 'reconstruction.'"
The question was taken, and the joint resolution passed the House by a vote of over three-fourths—120 yeas to 32 nays. From the necessary absence of many members, the vote was not full, yet the relative majority in favor of this measure was greater than in the former vote.
The following is the Constitutional Amendment as it passed both Houses of Congress:
"ARTICLE—.
"SEC. 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.
"SEC. 2. 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 such male citizens twenty-one years of age in such State.
"SEC. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States or under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
"SEC. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations, and claims shall be held illegal and void.
"SEC. 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article."
The President was requested to send the Amendment to the several
States for ratification.
On the 22d of June, President Johnson sent a message to Congress informing them that the Secretary of State had transmitted to the Governors of the several States certified copies of the proposed amendment. "These steps," said the President, "are to be considered as purely ministerial, and in no sense whatever committing the Executive to an approval of the recommendation of the amendment." It seemed to the President a serious objection to the proposition "that the joint resolution was not submitted by the two houses for the approval of the President, and that of the thirty-six States which constitute the Union, eleven are excluded from representation."
The President having no power under the Constitution to veto a joint resolution submitting a constitutional amendment to the people, this voluntary expression of opinion could not have been designed to have an influence upon the action of Congress. The document could have been designed by its author only as an argument with the State Legislatures against the ratification of the Constitutional Amendment, and as a notice to the Southern people that they were badly treated.
The President's message was received by Congress without comment, and referred to the Committee on Reconstruction.