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

The bill for the admission of Nebraska came later in the session, not being introduced for consideration until the 23d of July. It passed very promptly by a vote of twenty-four to eighteen in the Senate, and by sixty-two to fifty-two in the House. As in the case of Colorado the constitution excluded the negro from the right of suffrage, and for that reason a very considerable proportion of the Republicans of each branch voted against the bill. The vote was so close in the House that but for a frank and persuasive statement made by Mr. Rice of Maine, from the Committee on Territories, it would have been defeated. He pictured the many evils that would come to the people of Nebraska, now more than sixty thousand in number, if they could not do for themselves, as a State, many things which the National Government would not do for them as a Territory. Under the influence of his speech a majority of ten was found for the bill, but Congress adjourned the day after it was finally passed by both branches, and the President quietly "pocketed" the bill; and thus the earnest and prolonged effort to create two new States came to naught for the time.

Nothing daunted by the President's veto of the bill admitting Colorado, and his pocketing the bill admitting Nebraska, Mr. Wade promptly introduced both bills anew, at the beginning of the second session of the Thirty-ninth Congress. The case of Nebraska was, in popular judgment, stronger than the case of Colorado. The population was larger, and being devoted to agriculture, was naturally regarded as more stable than that of Colorado, which was based principally upon the somewhat fortuitous discovery of mines of the precious metals. But there was an admitted political embarrassment in regard to both Territories, the principal debate on which occurred when the bill admitting Nebraska was under consideration. Congress was, at the time, engaged in passing the Reconstruction Act for the States lately in rebellion, and had made it imperative that negroes should be endowed with suffrage by those States. While insisting on this condition for the Southern States it was obviously impossible for Congress to admit two Northern States with constitutions prohibiting suffrage to the negro. In the months of the Congressional vacation public opinion in the North had made great strides on this question.

A minority of Republicans were intent on sending the bill back and having the question of negro suffrage submitted for popular decision, but in the opinion of the majority of the party this was a needless postponement of a pressing question, and all propositions looking to such postponement were rejected. A final compromise of views was reached, by inserting in the Act of admission an additional section declaring "that this Act shall not take effect except upon the fundamental condition that within the State of Nebraska there shall be no denial of the elective franchise or of any other right to any person, by reason of race or color, excepting Indians not taxed; and upon the further fundamental condition that the Legislature of said State, by a solemn public act, shall declare the assent of said State to the said fundamental condition and shall transmit to the President of the United States an authentic copy of said Act." When notified of this solemn public act by the Legislature, it was made the duty of the President to announce the fact by proclamation, and thereupon the admission of the State to the Union, without further proceedings of Congress, was to be considered complete. The objection to this compromise by those who opposed it and by others who reluctantly supported it, was that it did not have the force of Organic Law; that the proposed act of the Legislature would not be rendered any more binding by reason of being called a solemn act, and that it might be repealed by any subsequent Legislature. Much argument was expended upon this point, but the general judgment was that an act of the Legislature, made in pursuance of such an understanding with Congress, was in the nature of a compact which, without discussing the question of power, would certainly be regarded as binding upon the State. With this understanding, Congress passed a bill admitting the State, but the vote in both branches was divided on the line of party.

This action was accomplished late in January (1867), and on the 29th of that month the President vetoed the bill. He objected especially to the clause just referred to, because it was an addition to the enabling Act which Congress had no moral right to make, and because it required of Nebraska a condition not theretofore required of States, —contradicting flatly the declaration of the first section of the bill, in which the State was declared to be "admitted into the Union upon an equal footing with the original States in all respects whatever." He argued that the imposition of the condition prescribed in the bill, and its acceptance by the Legislature, was practically a change in the organic law of the State without consulting the people, which he regarded as an innovation upon the safe practice of the Government. But his arguments fell upon unwilling ears, and the bill was passed over the veto by a vote of thirty to nine in the Senate, and in the House by one hundred and twenty to forty-three.

Colorado did not fare so well. The bill was passed by both branches of Congress, though not with so full a vote nor with so much confidence in the propriety and necessity of the measure. Precisely the same condition in regard to suffrage was inserted as in the case of the Nebraska bill. It met with a prompt veto, more elaborately argued and presented with more confidence by the President than in the case of Nebraska. He said, "I cannot perceive and reason for the admission of Colorado that would not apply with equal force to nearly every other Territory now organized, and I submit whether, if this bill becomes a law, it will be possible to resist the logical conclusion that such Territories as Dakota, Montana, and Idaho must be received as States whenever they present themselves, without regard to the number of inhabitants they may respectively contain." He dwelt forcibly upon the necessity of requiring population enough to secure one representative. "The plain facts of our history," said he, "will attest that the leading States admitted since 1845, namely, Iowa, Wisconsin, California, Minnesota, and Kansas (including Texas, which was admitted in that year), have all come in with an ample population for one representative, and some of them with nearly, if not quite, enough for two."

There were really no facts before Congress tending to prove the existence of those great resources which have since advanced Colorado so rapidly in population and prosperity. Little was known of the Territory. It was several hundred miles beyond the Western border of continuous settlement, and the men who came from it were regarded as adventurous pioneers on the very outposts of civilization. Under this condition of affairs it is not strange that the Senate failed to pass the bill for the admission of the State over the veto of the President. Edmunds, Fessenden, Foster, Grimes, Harris, Morgan, and some other Republicans, less prominent, voted in the negative. The result was twenty-nine in favor of passing it over the veto, and nineteen against. Defeated in the Senate the bill did not go to the House, and the admission of Colorado was by this action postponed for several years.

The President gave specious reasons for his vetoes, especially in the case of Colorado, but they did not conceal the fact that his position was radically different from that which Mr. Lincoln had held—radically different from the position which he would himself had assumed if he had maintained in good faith the principles he had professed when he secured the suffrages of the Republican party for the Vice-Presidency. Having allied himself with the South and compromised his patriotic record by espousing the cause he had so hotly opposed, he naturally adopted all its principles and its worst prejudices. For nearly half a century the leading exponents of Southern sentiment had been envious of the growth of the free North-West, and so far as lay in their power they had obstructed it—being unwilling for a long period to admit one of its giant Territories to the Union until its power could be politically offset by one of less population and wealth in the South. Mr. Johnson in his new associations at once adopted this jealous and ungenerous policy—which had indeed lost something of its significance by the abolition of slavery, but was still stimulated by partisan considerations and was invariable hostile to the admission of a Republican State. The most bitter prejudices could not blind Mr. Johnson or the Southern leaders to the inevitable growth of free commonwealths in the North-West, but it seemed to be an object with both to keep them from participation in the government of the Union so long as possible, and to accomplish this end by every expedient that could be adopted.

An Act in relation to the President's power to grant pardon and amnesty, passed at this session, was more important in its spirit than in its results. By the thirteenth section of the Confiscation Act of July 17, 1862, the President was authorized, at any time, by proclamation, "to extend to any persons who may have participated in the existing rebellion in any state or part thereof, pardon and amnesty." Under a suspension of the rules, the House of Representatives, by a vote of one hundred and twelve to twenty-nine, repealed this section on the first day of the session (December 3, 1866). There was anxiety on the part of many, under the lead of Mr. Chandler of Michigan, to repeal it so promptly in the Senate, but it was referred to the Judiciary Committee and passed after discussion. Mr. Chandler said, "It is a notorious fact, as notorious as the records of a court, that pardons have been for sale around this town, for sale by women—by more than one woman. The records of your court in the District of Columbia show this. Any senator who desires this disgraceful business to go on, of course desired that this clause shall remain."

The repeal of the clause, however, would not take from the President his constitutional power of pardoning, but in the judgment of Mr. Trumbull, who had charge of the bill in the Senate, it took from him the power to pardon by proclamation and confined him to his right of issuing individual pardons. The difference between pardon and amnesty was defined by Mr. Trumbull. Pardon is an act of mercy extended to an individual. It must be by deed. It must be pleaded. According to Chief Justice Marshall, it is essential to its validity that it be delivered to the person pardoned. But an amnesty is a general pardon by proclamation. Mr. Trumbull thought the repeal would be a "valuable expression of opinion on the part of Congress that general pardons and restoration of property will not be continued, and if they President continues to pardon rebels and restore their property by individual acts under the Constitution, let him do so without having the sanction of Congress for his act."

Mr. Reverdy Johnson took issue with Mr. Trumbull. He maintained that the President's powers to grant pardons, as conferred by the Constitution, had not been affected by the provision of law whose repeal was now urged. He declared that the power of the President "to grant reprieves and pardons for offenses against the United States" was as broad, as general, as unrestricted as language could make it. He could find no logical ground for the distinction made by Mr. Trumbull between individual pardons and general amnesties by proclamation—in illustration of which he said President Washington had by proclamation pardoned the offenders engaged in the Whiskey Insurrection. The enactment of the provision had not, in Mr. Johnson's opinion, enlarged the President's pardoning power, and its repeal would not restrict it.