He made an able argument for the pending amendment as the most effective method of bringing the South to do justice to the colored race. He believed that if the Southern States should feel that they could derive larger political power in the Government of the United States by admitting colored men to the elective franchise, they would in time conclude to do so; and doing so they would be compelled in the mere process to realize their indebtment to that race, and thus from self-interest, if not from a sense of justice, would extend equal protection to the whole population. Mr. Fessenden could not refrain from some good-natured ridicule of the declaratory resolutions which Mr. Sumner had offered. "Sir," said he, "does the Constitution authorize oligarchy, aristocracy, caste or monopoly? Not at all. Are you not as safe under the Constitution as you are under an Act of Congress? Why re-enact the Constitution merely to put it in a bill? What do you accomplish by it? What remedy does it afford? It is merely as if it read this way: 'Whereas it is provided in the Constitution that the United States shall guarantee to every State of the Union a republican form of government, therefore we declare that there shall be a republican form of government, and nothing else.' That is all there is of it. Of what particular use it is as a bill, practically, is more than I can tell. I presume the Honorable Senator from Massachusetts will very easily explain it, but it reminds me (I say it with all due respect to him) of a political travesty of a law argument by an eminent lawyer of his own State, running somewhat in this way;—
'Let my opponents do their worst,
Still my first point is point the first,
Which fully proves my case, because,
All statute laws are statute laws.'
The sequitur is obvious,—the case is proved because, inasmuch as the Constitution provides that there shall be no aristocracy, no oligarchy, no monopoly, therefore Congress has resolved that there shall not be any thing of the kind."
Mr. Fessenden would not admit the essential justice of the argument which Mr. Sumner made in behalf of universal suffrage, and showed that he was not consistent in the ground which he took. "While," said he, "the Honorable Senator from Massachusetts argued with great force that every man should have the right of suffrage, his argument, connected with the other principle that he laid down, and the application of it, —that taxation and representation should go together,—would apply with equal force and equal equity to woman as to man; but I notice that the Honorable Senator carefully and skillfully evaded that part of the proposition. If a necessary connection between taxation and representation applies to the individuals in a State, and that is the application which the Honorable Senator made of it,—an application never made by our ancestors, but applied by them to communities and not to individuals,—I should like him to tell me why, according to his own argument, every female that is taxed should not be allowed to have the right of suffrage."
"There are," said Mr. Fessenden, "but two propositions to be considered in the pending amendment; one is whether you will base representation on voters, and the other is the proposition which is before the Senate. I suppose the proposition to base representation upon actual voters would commend itself to the Honorable Senator from Massachusetts. I believe I have in my desk a proposition he made to amend the Constitution (laid before the Senate so early in the session that the bell which called us together had hardly struck its note before it was laid upon the table), in which he proposed that representation in the United States should be based on voters. Let me ask him if that does not leave in the hands of the States the same power that exists there now, and has existed heretofore? What is the difference? How does the Honorable Senator find the pending proposition so objectionable, and the one he offered so suitable to accomplish the purpose which he desires to accomplish? The two propositions, in respect to the point upon which the gentleman has made his speech, are identical in effect."
The Constitutional amendment was debated earnestly until the 9th of March. One of the boldest and most notable speeches was made by Mr. Henderson of Missouri, who surprised the Senate by taking a more radical ground than the Reconstruction Committee. He moved the following as a substitute for the committee's proposition to amend the Constitution: "No State, in prescribing the qualifications requisite for electors therein, shall discriminate against any person on account of color or race." Mr. Henderson, though representing a State lately slave-holding, was in advance of the majority of his associates from the free States; but he defended his amendment with great ability. He said, "I am aware that the Senate will vote it down now. Let them vote it down. It will not be five years from to-day before this body will vote for it. You cannot get along without it. You may adopt the other proposition, but the States will not accept it. The Northern States in my judgement will not accept it, because they will misapprehend the meaning of it." When the vote was reached ten senators, including Mr. Henderson, sustained his proposition in favor of negro suffrage. The resolution of the Reconstruction Committee, after several attempts to modify it, came to a vote,—yeas 25, nays 22. Two-thirds being required the amendment was defeated. A reconsideration was made for the purpose of resuming the discussion, but the resolution was never taken up again, having become merged in a new proposition.
Pending the consideration of the Constitutional amendment so long before Congress, the Reconstruction Committee reported, and both Houses of Congress agreed to adopt, a resolution declaring that "No senator or representative shall be admitted into either branch of Congress from any of said States until Congress shall have declared such State entitled to representation." It was the pressure of the State of Tennessee for admission which brought about this declaration. Her condition was regarded as peculiar, and her senators and representatives were seeking admission to their appropriate bodies, claiming exemption from the general requirements of the Reconstruction policy, because they had, without the aid of Congress, established a loyal State government. This was regarded as totally inexpedient, and the committee reported the resolution, as they declared, "in order to close agitation upon a question which seems likely to disturb the action of the Government, as well as to quiet the uncertainty which is agitating the minds of the people of the eleven States which have been declared to be in insurrection." The objection to this course was, that in a certain degree it involved the renunciation on the part of both Senate and House of their right to be the exclusive judge of the qualification of members of their respective bodies. Mr. Stevens was the author of the resolution and it really included, as its essential basis, the view which he had so strenuously insisted upon, that the insurrectionary States must be treated by Congress, in all that related to their restoration to the Union, as if they were new States seeking admission for the first time. Instead of each House acting as the judge of the qualifications of its members, both Houses agreed that neither should take a step in that regard until there had been common action declaring the State entitled to representation. A similar proposition at the opening of the session had been defeated in the Senate: its ready adoption now showed how the contest between the President and Congress was driving the latter day by day to more radical positions.
After the defeat in the Senate of the amendment touching representation, and the postponement by the House of another amendment reported from the Committee on Reconstruction touching the protection of citizens in their rights and immunities, there was a general cassation of discussion on the question of changing the Constitution, and a common understanding in both branches to await the formal and final report of the Committee. That report was made by Mr. Stevens on Monday, the 30th of April.(1) It consisted of a joint resolution proposing an amendment to the Constitution of the United States, in which were consolidated under one article the several amendments which had been proposed, and which in their aggregate, as finally shaped, made up the famous Fourteenth Amendment. In addition to this was a bill reciting the desirability of restoring the lately revolted States to full participation in all political rights, and enacting in substance that when the Constitutional amendment should be agreed to by them, their senators and representatives in Congress might be admitted. A further bill was reported, declaring certain persons who had been engaged in rebellion to be ineligible to office under the Government of the United States.
The debate on the consolidated Fourteenth Amendment was opened on the 8th of May by Mr. Stevens. The House had agreed that all speeches should be limited to half an hour. The debate was therefore condensed and direct. Mr. Stevens complained of the Senate for having defeated the amendment relating to representation, and though assenting to that which was now reported by the committee, thought it inferior to, and less effective than, the one which had failed. The third section he thought too lenient. "There is," said he, "a morbid sensibility sometimes called mercy, which affects a few of all classes from the priest to the clown, which has more sympathy for the murderer on the gallows than for his victim. I hope I have a heart as capable of feeling for human woe as others. I have long since wished that capital punishment were abolished. But I never dreamed that all punishment could be dispensed with in human society. Anarchy, treason and violence would reign triumphant. The punishment now prescribed is the mildest ever inflicted upon traitors. I might not consent to the extreme severity pronounced upon them by a provisional Governor of Tennessee—I mean the late lamented Andrew Johnson of blessed memory—but I would have increased the severity in this section. . . . In my judgment we do not sufficiently protect the loyal men in the rebel States from the vindictive persecutions of their rebel neighbors."
Mr. Blaine of Maine called the attention of Mr. Stevens to the fact that on the 17th of July, 1862, Congress had passed an Act of which the following was one section: "That the President is hereby authorized, at any time hereafter, by proclamation, to extend to persons who may have participated in the existing rebellion in any State or part thereof, pardon and amnesty, with such exceptions, at such times and on such conditions as he may deem expedient for the public welfare." "Under and in pursuance of this Act," said Mr. Blaine, "the late President Lincoln issued a proclamation granting a great number of pardons upon certain specified conditions, and subsequently President Johnson issued his celebrated amnesty proclamation granting pardons to certain specified classes in the South that had participated in the Rebellion. . . . Do we not by the proposed action place ourselves in the attitude of taking back by Constitutional amendment that which has been given by Act of Congress, and by Presidential proclamation issued in pursuance of the law? and will not this be justly subjected to the charge of bad faith on the part of the Federal Government?"