Twenty Years of Congress, Volume 2 / From Lincoln to Garfield, with a Review of the Events Which Led to the Political Revolution of 1860

by James Gillespie Blaine

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 Constitutional 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."

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 classes 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 Constitution. 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 classes—one class 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 Constitutional 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 constitutional 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 substitute, which is precisely that which became formally incorporated in the amendment as it passed. 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 assuming the office took the oath prescribed by the Constitution, became obligated by that oath to stand by the Constitution 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 Constitution 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 Constitutional 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 Constitution of the United States, there is a fair implication that he cannot afterwards commit an act which in its effect would destroy the Constitution 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 Constitution 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 classes to whom the obligation of an oath to support the Constitution was prescribed in the sixth article of the Constitution, 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 Constitution."