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. Sherman of Ohio pointed out that the amendment of Mr. Hendricks would exclude from the operation of the section those who had left the army of the United States to join the Rebellion. Mr. Hendricks's amendment received but eight votes in the Senate, falling short of the admitted Administration strength. Mr. Reverdy Johnson moved to strike out the words which included members of the State Legislatures, but the amendment secured only ten votes. He also moved to strike out the words "having previously taken," and insert "at any time within ten years preceding the 1st of January, 1861, had taken;" and this also received but ten votes. Mr. Van Winkle moved to amend so that a majority of all the members elected to each House should be empowered to remove the disability, instead of two-thirds as required by the amendment. This also received but ten votes.

In further discussion of the extent to which the pardon of the President goes, Mr. Reverdy Johnson cited a case which had just been argued by himself and others but was not yet decided, in the Supreme Court of the United States, as to whether an attorney in that court could be bound to take the ironclad oath as prescribed by Act of Congress, January 24, 1865. He had no doubt, he said, that the operation of the pardon was to clear the party pardoned from the obligation to take that oath. The case referred to was that since so widely known as ex parte Garland, and decided by the Supreme Court adversely to the Constitutionality of the statute. Mr. Howe of Wisconsin interrupted the senator from Maryland and asked him whether he knew "of any authority which has gone to the extent of declaring that either an amnesty or a pardon can impose any limitation whatever upon the power of the people of the United States, through an amendment to their Constitution, to fix the qualifications of officers." Mr. Johnson replied, "That is not the question to which I spoke. It is quite another inquiry. I was speaking of the operation of a statute."

Mr. Doolittle also answered his colleague by saying, "I know it may be said that by an amendment to the Constitution, which is the supreme law of the land, you can annul all existing rights. You could, perhaps, by an amendment to the Constitution, enact a provision which would deprive individual citizens of their property, and vest the whole of it in the Government of a State or in the Government of the United States. You might, perhaps, by a Constitutional amendment, pass a bill of attainder by which certain men would be sentenced to death and to corruption of blood. But, sir, would it be right? That is the question." Mr. Doolittle was discussing it on the ground of its moral rightfulness and not upon the ground of the power of the people to amend their Constitution. An attempt was made to insert the word "voluntarily" in the amendment, so that only those would be under disabilities who had voluntarily taken part in the Rebellion; but this received only ten votes. The Senate rejected it for the obvious reason that it would open the entire amendment to evasion.

The amendment, as supported by Mr. Howard, was finally agreed to with only ten votes in the negative. Mr. Hendricks, in lieu of the amendment on the subject of representation, moved to add a clause excluding two-fifths of "such persons as have been discharged from involuntary servitude since the year 1861, and to whom the elective franchise may be denied." He did this in order that representation should be maintained on the same numerical basis that existed before the war. The amendment was rejected without a division. Mr. Doolittle offered an amendment on the subject of representation, embodying the two propositions of making voters the basis of representation and providing that "direct taxes shall be apportioned among the several States according to the value of the real and personal taxable property situated in each State, not belonging to the State or to the United States;" but after elaborate debate it received only seven votes. On motion of Mr. Williams of Oregon the amendment to section two was still further amended by substituting the words "the right to vote" for "elective franchise," as already agreed to. Mr. Clarke of New Hampshire, who had shown throughout the discussion great aptness at draughting Constitutional provisions in appropriate language, now moved to substitute for section four, which had gone through various mutations not necessary to recount here, the precise section as it now stands in the Constitution.

In the course of the discussion Mr. Doolittle had moved that in imposing political disabilities, those should be excepted "who have duly received pardon and amnesty under the Constitution and laws." He had just admitted the broadest possible power of a Constitutional amendment duly adopted, and, recognizing that the amendment as it stood would certainly include those who had received pardon from the President, desired to avert that result. His amendment was very briefly debated and on a call of the ayes and noes received only ten votes. The effect of this vote unmistakably settled, in the judgment of the law-making power of the Government, that the operation of the Fourteenth Amendment would not in the least degree be affected by the President's pardon. Before the proposed amendment of Mr. Doolittle, Mr. Saulsbury had tested the sense of the Senate practically on the same point, by moving to make the clause of the amendment read thus: "Congress may by a vote of two-thirds of each House and the President may by the exercise of the pardoning power, remove such disabilities;" but it was rejected by a large majority, and every proposition to permit the pardon of the President to affect the disabilities prescribed by the Fourteenth Amendment in any way whatever was promptly overruled.

As a result of this decision, Southern men who, under the Fourteenth Amendment, had incurred disabilities by reason of participation in the Rebellion, could not assume office under the National Government until their disabilities should be removed by a vote of two-thirds of the Senate and House of Representatives, even though they had previously been pardoned by the President. The language of the amendment, the very careful form in which the tense was expressed, appeared to leave no other meaning possible, and the intention of legislators was definitively established by the negative votes already referred to. The intention indeed was in no wise to interfere with the pardon of the President, leaving to that its full scope in the remission of penalty which it secured to those engaged in the Rebellion. The pertinent clause of the Fourteenth Amendment was regarded as merely prescribing a qualification for office, and the Constitutional lawyers considered it to be within the scope of the amending power as much as it would be to change the age at which a citizen would be eligible to the Senate or the House of Representatives.(2)

One of the singular features attending the discussion and formation of this amendment, was that all the Democratic senators preferred the third section as embodied in the Constitutional amendment finally passed, to that which had been proposed as it passed the House. The amendment could not probably be incorporated in the Constitution for a year and according to the original proposition of the House, therefore, it would only have excluded those who participated in the Rebellion from the ballot-box for a period of three years,—until the 4th of July, 1870; whereas the third section, as adopted, perpetually excluded the great mass of the leading men of the South from holding public office, either in Nation or State, unless their disabilities should be removed by a vote of two-thirds in each House of Congress. No adequate explanation was given for the preference, and the final vote substituting that which was incorporated in the Constitution for the House proposition was 42 in the affirmative to 1 in the negative. The negative vote was given by Reverdy Johnson; while such staunch Democrats as Guthrie of Kentucky, Hendricks of Indiana, McDougal of California and Willard Saulsbury of Delaware voted to prefer the one to the other. Mr. Johnson afterward explained that he voted under a misapprehension; so that the substitution was made, in effect, by a unanimous vote of the Senate.

On the final passage in the Senate of the consolidated amendment the ayes were 33 and the noes 11. When the amendment was returned to the House, Mr. Stevens briefly explained the changes that had been made in the Senate. The first section was altered to define who are citizens of the United States and of the States. Mr. Stevens declared this to be an excellent amendment, long needed to settle conflicting decisions between the several States and the United States. He said the second section had received but slight alteration. "I wish," he continued, "it had received none. It contains much less power than I could wish. It has not half the vigor of the amendment which was lost in the Senate." The third section, he said, had been wholly changed by substituting the ineligibility of certain high officials for the disfranchisement of all rebels until 1870. Mr. Stevens declared that he could not look upon this as an improvement. "It opens the elective franchise to such as the States may choose to admit. In my judgment it endangers the government of the country, both State and National, and may give the next Congress and President to the reconstructed rebels." The fourth section, "which renders inviolable the public debt and repudiates the rebel debt, will secure the approbation of all but traitors." "While I see," concluded Mr. Stevens, "much good in the proposition I do not pretend to be satisfied with it; yet I am anxious for its speedy adoption, for I dread delay. The danger is that before any Constitutional guard shall have been adopted, Congress will be flooded by rebels and rebel sympathizers." The House came to a final test on the Senate amendments on the 13th of June and concurred in all of them by a single vote—ayes 120, noes 32. The work of Congress in securing the Fourteenth Amendment was thus made complete.

The Constitutional amendment not requiring the assent of the President (for the good reason that the two-thirds of each House which can override a veto are here required in advance), was submitted to the Senate without delay. The notification to the States was dated June 16th. Connecticut was the first to assent to the amendment.—her Legislature being in session and her ratification made complete on the 30th,—precisely a fortnight from the date of submission. New Hampshire followed on the 7th of July. The third State was Tennessee. Her Legislature ratified the amendment on the 19th of July, by a vote of 58 to 17, counting both branches. Many of the States would doubtless have held extra sessions of their Legislatures to expedite the adoption of the amendment if such a course had been considered desirable by the leading members of Congress. It was deemed best, however, to leave the question open to discussion and deliberation, in order that the provisions of the amendment, in all their length and breadth, should be completely understood by the people before the formal assent of the States should be urged. The three States named were the only ones which ratified the amendment before Congress adjourned.(3)

When the Reconstruction Committee reported the Fourteenth Amendment, they reported with it a bill declaring that "whenever said amendment shall become a part of the Constitution of the United States, and any State lately in insurrection shall have ratified the same and shall have modified its constitution and laws in conformity therewith," such State should be admitted to representation. There had been during the entire session of Congress a disposition to make an exception in favor of the State of Tennessee. She had of her own motion elected her loyal governor, and now for a year and a half the administration of the State was in a comparative degree orderly and regular. When telegraphic intelligence of the action of the Tennessee Legislature reached the Capitol Mr. Bingham of Ohio moved a joint resolution, reciting in effect by preamble, that as the "State of Tennessee has in good faith ratified the Fourteenth Amendment, and has also shown to the satisfaction of Congress, by a proper spirit of obedience in the body of her people, her return to due allegiance to the Government, laws and authority of the United States; therefore, be it resolved that the State of Tennessee is hereby restored to her former, proper, practical relations to the Union, and is again entitled to be represented in Congress by senators and representatives duly elected and qualified, upon their taking the oaths of office required by existing laws." Mr. Boutwell of Massachusetts desired to add a condition that Tennessee, as a prerequisite to the privilege of representation, should provide "an equal and just system of suffrage for the male citizens within its jurisdiction who are not less than twenty-one years of age." Mr. Bingham declined to admit it, shutting off all amendments by the force of the previous question, for which the House sustained his demand. After a few hours' debate the House passed the joint resolution by 125 ayes to 12 noes. The Democrats all supported the measure, though they objected strenuously to some of the implications of the preamble. The few votes in the negative were given by some radical Republicans, though Mr. Stevens, the leader of that wing of the party, supported the bill.