264

JAMES G. BLAINE.

as Speaker of the House, and there to share with him and Henry Clay the reputation of being one of the greatest of parliamentarians.1

Two weeks passed before the Senate began the discussion of the House resolution.2 The House, on the thirtyfirst of January, had passed a joint resolution which originated with James G. Blaine, amending the Constitution with respect to the basis of representation in Congress, and it had been discussed at great length in the Senate, but it was dropped when the resolution from the Joint Committee on Reconstruction came up. This was not reached until the twenty-ninth of May, though, since it had been reported, several other amendments had been proposed. On the twenty-ninth of May Senator Howard brought forward several amendments which ultimately identified him so closely with the Fourteenth as to give it his name. On that day, the section of the resolution excluding certain persons from the right to vote until the fourth of July, 1870, was stricken out without

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1 Mr. Blaine was Speaker of the House from March 4, 1869, to March 3, 1875. From December 6, 1875, to August 18, 1876, the Speakership was filled by Michael C. Kerr of Indiana; he voted against the amendment.

2 May 24, Globe, p. 2798.

3 Introduced by Mr. Blaine, July 8, 1866, Globe, p. 136. Adopted, 120 to 46, p. 538. Discussed in the Senate, pp. 520, 1321.

4 On the 24th of May, Globe, p. 2804. Senator Grimes proposed his amendment to strike out sections 2 and 3, and insert: (2) Representation shall be apportioned among the several States which may be included within this Union according to the number in such State of male citizens of the United States over 21 years of age, qualified by the laws of the State to choose members to the most numerous branch of its Legislature, excluding such citizens as are disqualified for participating in the rebellion. (3) 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.

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opposition.1 Howard's substitutes for the joint resolution were, first, a definition of United States citizens;2 secondly, a definition of who are qualified to hold office in the United States or in a State, and, thirdly, a declaration of the inviolability of the national debt. These amendments were the result of much deliberation in caucus and were submitted as the opinion of the Republican Senators.

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The language of the first Howard amendment was taken from the opening section of the civil rights law and its history was another illustration of the source of many clauses in American constitutions. He offered it, he said, simply as declaratory of the law of the land. It would settle the great question of citizenship, and remove all doubt as to what persons were, or were not, citizens of

1 43 yeas, 6 absent.

2 All persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. It was to amend Section 1. p. 2869.

Globe,

3 His second amendment becoming the third of the resolution was "No person shall be a Senator or Representative in Congress or an elector of President or Vice-President, or hold any office, civil or military, under the United States or under any State, who having previously taken an oath, as member of Congress or as officer of the United States or as member of any State Legislature or as executive or judiciary officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof; but Congress may by a vote of twothirds of each House remove such a liability. Ib.

4 It was to come in as Section 4. The obligations of the United States incurred in suppression of insurrection, in defence of the Union, or for payment of bounties or pensions incident thereto shall remain inviolate. Ib. He also proposed some verbal amendments, including the declaration that all debts, obligations and claims of the Confederacy should be forever held illegal and

266

HOWARD DEFENDS THE AMENDMENT.

the United States; a definition long desired in the jurisprudence and legislation of the country. But was it to include the Indians? Would it not be well, inquired Senator Doolittle of Wisconsin, specifically to exclude all Indians not taxed? It was replied that they were not born subject to the jurisdiction of the United States, but, in our legislation and jurisprudence had always been regarded as quasi foreigners. The mere fact of birth in this country did not entitle a man to the right to vote; that privilege was conferred by the State; but was it not essential to the existence of a free State that it should have the power not only to declare who should exercise political privileges within its boundaries, but if in danger of being overrun by another and different race, also absolutely to expel obnoxious persons?

Were the people of California to remain inactive while they were overrun by a flood of Mongolians? Perhaps the contingency would never happen. As the Constitution stood, the General Government had the right to forbid, if it deemed proper, the entrance into its territory of any person not a citizen of one of the States. Certainly the people of a Commonwealth should have the right to exclude men of a different race, of a different religion, of different manners, traditions and sympathies. The Mongolian race, numbering unknown millions, might pour a human flood upon our Pacific coast and, in a very short time, change the character of its institutions.1

But, it was asked, was not the fear of Chinese invasion unreasonable? Was it not quite improbable that the race I would ever become numerous on our coasts? California had passed restrictive statutes as to the Chinese, but its Supreme Court had repeatedly declared them unconstitutional, a conclusion which, in the light of the civil 1 Senator Cowan. Globe, p. 2891.

rights law, was thought by many to be eminently just.1 But the large mass of Indian population presented a much more serious difficulty. Was it not both inexpedient and violative of our political traditions to apply the term citizens to them? Many of the Indians, especially the wild tribes, were not subject to the jurisdiction of the United States, and could not come within the amendment; but Indians who were taxed were entitled to its protection.2 The question was one of jurisdiction. The civil rights law declared that all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, were citizens. The definition was explicit and comprehensive and the resolution should be amended accordingly. The truth was, that Indians were subjects, not citizens of the United States.3 Did Congress propose to make the wild Indians of the desert citizens? If a State taxed the Indians within its limits, would that make them citizens? Jurisdiction went with taxation. Wisconsin gave civilized Indians the right to vote at this time,* but such Indians were taxed and had severed their tribal relations. Senator Doolittle's amendment, excluding Indians not taxed, was rejected, but the first Howard amendment was agreed to.

With equal unanimity the second amendment, whose object, as Fessenden explained, was "to prevent a State from saying that although a person is a citizen of the United States he is not a citizen of the State," was

1 Mr. Howard. Globe, p. 2892.

2 Senator Wade. Globe, p. 2893.

3 Mr. Hendricks, Globe, p. 2895, citing the opinion of AttorneyGeneral Cushing, July 5, 1856.

4 Wisconsin gave the suffrage to persons of Indian birth, who had since been declared by law and Congress to be citizens of the United States, and to civilized persons of Indian descent not members of any tribe. Constitution of 1848, Article III, Section 1.

268

OBJECTIONS TO THE AMENDMENT.

adopted. Reverdy Johnson, of Maryland, objected to the provision in the amendment which excluded from eligibility to office, because it went too far. At the conclusion of the Civil War, milder measures, he said, were better adapted for the restoration of peace and harmony. The effect of the amendment would be to disfranchise ninetenths of the white men of the South, until Congress should think proper, by a majority of two-thirds in each House, to remove the restriction. With a provision like this, the amendment would not receive the sanction of any Southern State. Would it not be better to limit the exclusion to those who held office, State or National, at the time of the rebellion and who had given it their support?

This last suggestion emanated from Senator Hendricks of Indiana. As the amendment read, he said it might exclude persons who had held office a generation earlier as Iwell as those in office when the war broke out. "If the amendment was in separate articles, so that each might be acted upon separately, by the States, the ratification of some would not be so fatal as a rejection of the whole.” So far as arms were concerned, peace had returned; but as to harmony, peace was apparently as far off as ever. The effect on the prosperity of the Southern States, by keeping them in a condition of thraldom, would be disastrous. It would exclude immigration and drive away capital. Many Southern men, whom the amendment would disqualify, "believed that the Constitution, as it stood, gave them the right to secede." There were those North as well as South who maintained the same doctrine, and the opinion was as honest South as North. But the people of the South had become satisfied by the result of the war that the doctrine could never be maintained. It was not magnanimous to exclude this numerous class if the masses of the South were to be won back to loyalty;