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the great majority of the Southerners “ became and were insurgents, rebels, traitors; and all of them assumed the political, legal, and practical relation of enemies of the United States.” The States did not desist from war till "every vestige of State and Confederate government" was obliterated, “their people reduced to the condition of enemies conquered in war, entitled only by public law to such rights, privileges and conditions as might be vouchsafed by the conqueror.” They thus had “no right to complain of temporary exclusion from Congress," until they could “show that they are qualified to resume federal relations.

** They must prove that they have established, with the consent of the people, republican forms of government in harmony with the Constitution and laws of the United States, that all hostile purposes have ceased, and should give adequate guaranties against future treason and rebellion-guaranties which shall prove satisfactory to the Government against which they rebelled, and by whose arms they were subdued.” The rebels “were conquered by the people of the United States acting through all the co-ordinate branches of the Government, and not by the Executive alone. * * * The authority to restore rebels to political power in the Federal Government can be exercised only with the concurrence of all the departments in which political power is vested,” and the proclamations of the President could only be regarded as provisional permission “to do certain acts, the effect and validity whereof is to be determined by the constitutional government, and not solely by the executive power.” If the President had the power to “qualify persons to appoint Senators and elect Representatives, and empower others to appoint and elect them, he thereby practically controls the organization of the legislative department and destroys the constitutional form of government.” 1

1 House Reports, No. 30, 39th Congress, ist Session. McPherson, History of Reconstruction, pp. 84-93.

The report of the dissenting members of the committee, Messrs. Johnson, Rogers and Grider, was an ably prepared document embodying at length the doctrines of the minority in Congress, composed of the Democrats and the few Republicans who still sustained the President. As a matter of course the argument was built upon the premise that the so-called Confederate States were never legally separated from the Union, but were bound by all the obligations and entitled to all the privileges of other States. “In its nature the government is formed of and by States possessing equal rights and powers.” A State cannot be held to have forfeited its rights. “To concede that by the illegal conduct of her own citizens she can be withdrawn from the Union, is virtually to concede the right of secession.”

Were the States out of the Union, the minority continued, the submission to them of the proposed constitutional amendment would be absurd; and such submission virtually conceded that the condition of the States remained unchanged. The constitutional power to suppress insurrection is for the preservation, not the subjugation of the State.

The continuance of the Union of all the States is necessary to the intended existence of the Government," and a different principle leads to disintegration. The war power, as such, cannot be used to extinguish the States; the Government only seeks to suppress the insurrection, achieving which all the States resume their normal relations. The States

have organized governments, republican in form, and the manner in which they were formed is no concern of Congress.

Congress may admit new States, but a State once admitted ceases to be within its control and can never again be brought within it.” There is nothing in the political condition of these States justifying their exclusion from representation in Congress. The proposed amendment would degrade the Southern States, as it would compel them to


accept either a lessened representation or negro suffrage. Further, it interfered with the right of every State to regulate the franchise; and, by joining several subjects and requiring them to be voted on as a whole, deprived the people of the opportunity of passing on this important question separately.

8. The Joint Committee on Reconstruction had already reported two bills and one joint resolution which in its report of June 18 were declared to be the fruit of its labors. These were introduced in the House by Mr. Stevens, April 30. The resolution proposed an amendment to the Constitution, which, as finally amended, became the 14th Amendment." The two accompanying bills were entitled respectively: (1) “A Bill to provide for restoring the States lately in insurrection to their full political rights.” (2) A Bill declaring certain persons ineligible to office under the Government of the United States."

The first of these bills prescribed the conditions on which a State lately in insurrection might secure representation in Congress, as well as a ten years' postponement of the exaction of any unpaid part of the direct tax of 1861. It provided that representation might be secured after the proposed amendment should have become a part of the Constitution, and the State seeking representation should have ratified such amendment. Postponement of the tax might be secured by ratifying the amendment. This bill served as a basis for general discussion of the best method of restoring to the States their political rights; but, no action was taken on it during this session, and it went over as unfinished business to the following December.

The second bill declared as ineligible to office: the President, Vice-President, and foreign agents of the Confederate States; "heads of departments of the United States, officers

1 Gillet, Democracy in the United States, pp. 318–20.

of the army and navy of the United States, and all persons educated at the Military or Naval Academy of the United States," federal judges and members of the 36th Congress, who had given aid or comfort to the rebellion; Confederate officers above the rank of colonel in the army or master in the navy; governors of the Confederate States, and “those who have treated officers or soldiers or sailors of the army or navy of the United States, captured during the late war, otherwise than lawfully as prisoners of war." This bill was less fortunate than the first, since it failed even to receive consideration during the session.

The proposed constitutional amendment, however, fared better. It had been well demonstrated by the discussions during the session that an amendment to the Constitution would be submitted to the States, if a resolution could be framed which would satisfy the heterogeneous elements of the reconstruction party. But the framing of such a resolution had proved a very difficult matter. Stevens, and those most influenced by him, were especially radical in their doctrines, not hesitating to express their desire for the confiscation of rebels' property and for other extreme measures. Some believed that there should be nothing short of complete disfranchisement, for a term of years, of all who had aided the rebellion in any way—they had acted deliberately, and they must suffer the consequences. Others cared only for the disfranchisement of the more prominent offenders, and for the establishment of negro suffrage. Still another faction wished liberal terms to be offered to the States—limitations, but no interference.

The radicals recognized that their extreme ideas could not obtain congressional sanction, and made no effort to embody them in the plans submitted. From the beginning of the session various propositions were under discussion. Among these, the most attention was attracted by the various pro

positions to modify the existing basis of apportionment of representatives in Congress. Emancipation had rendered this necessary. The "three-fifths clause” of the Constitution having become inoperative, the increased representation resulting from the freeing of the slaves necessitated a change. The first plan was “to apportion Representatives according to the number of voters in the several States." ; It was then proposed to exclude from the basis of representation all whose political rights were denied or abridged by any State on account of race or color.

This plan, supported by Blaine and Conkling, passed the House on January 31, 1866,3 but was defeated in the Senate. Many felt that the measure was too stringent. The object was virtually to force upon the Southern States the enfranchisement of the negro.

The Committee on Reconstruction hesitated for over a month after the defeat of this resolution in the Senate. It was finally decided that the only way in which the submission of the desired amendment could be effected, was to concede something to the conservative element of the Senate. Accordingly the draft of April 30 was presented as the recommendation of the committee. This passed the House without difficulty,- but encountered fierce opposition in the Senate. The House resolution contained a provision which would have summarily and unconditionally excluded from the franchise all participating in the rebellion, until July 4,


Congressional Globe, ist Session, 39th Congress, pp. 9, 10, 351. 2 Ibid., 141 -2, 232. For general discussions and summaries of the debates on the 14th Amendment, see Wilson, Rise and Fall of the Slave Power in America, iii, 647-660; Wilson, History of Reconstruction, 218–266; Blaine, Twenty Years of Congress, ii, 193–214. 3 The vote was: yeas, 120; nays, 46.

Congressional Globe, 39th Congress, ist Session, p. 2459. 5 Yeas, 128, nays, 37.


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