the exclusion therefore should not be suffered to stand. The Joint Committee showed great sagacity in combining the several propositions into one amendment. They had submitted rather an anomalous resolution, but backed by a heavy majority in each House, they insisted that the propositions, however heterogeneous, should be treated as one amendment. Had the four sections been submitted separately, their ultimate adoption, which doubtless was surer, from the first, would have been effected by different majorities. Democratic Senators, like Guthrie of Kentucky, though supporting the amendment as a whole, characterized its disqualifying proposition as a proscription that would only irritate the South; for an amendment which deprived them of the public service of their most intelligent men would be rejected almost unanimously. Hendricks would have the disqualification apply only to those who had violated their oath to support the Constitution of the United States while they were holding office, State or national, but his amendment was rejected.1 The Senate also rejected two amendments by Reverdy Johnson, the first to strike out the disqualification of State officers; the second, limiting the disqualification to ten years preceding the first of January, 1861;3 the difficulty of securing a two-thirds vote of both Houses, to remove disqualifications, led Saulsbury, of Delaware, to propose the alternative of pardon by the President; but this was rejected. But was not the disqualifying clause superfluous? The oath already required by the Constitution, of all officers in the national government, sufficiently effected the purpose intended by the amendment. This objection was made by 1 34 to 8, May 30, 1866. Globe, p. 2899. 2 By a vote of 32 to 10. 3 By a vote of 32 to 10. 270 THE PARDONING POWER. Senator Doolittle, who also opposed the amendment because it applied equally to those who had been forced into the rebel service and to those who had gone voluntarily; moreover it would annul pardons and amnesties already granted by the President and authorized by Congress. Would it not, in like manner, affect those who had complied with President Lincoln's proclamation of amnesty?1 But, it was asked, would not amnesty and pardon relieve from all civil disabilities and restore to all civil rights? This raised the whole question of the President's pardoning power. Senator Grimes, at this point, explained that the amendment was intended to prevent the commission of offenses in the future; the presumption being fair and legitimate that the man who had once violated his oath would be more liable to violate his fealty to the government. The President's proclamation of May twenty-ninth, 1865, had been issued under an explicit declaration by Congress of his power to do so.2 The amendment now proposed embraced large numbers of persons to whom pardon and amnesty had been granted; therefore, it was a violation of good faith by the government. Some five hundred and thirty-five principal officers of the late Confederate government who had left the service of the United States, remained unpardoned. Was it right to treat the thousands who had taken the oath in like manner as these few hundred who had not? But a more serious objection to the amendment was its plain assumption, on the part of Congress, of the right to prescribe the qualifications for holding State offices. This was interfering with a power which belonged exclusively to the people of a State. But the amendment, to limit the disqualification to those who voluntarily supported the 1 See p. 72. 2 Act of July 16, 1862. Statutes at Large, XII, 589. Confederacy, received only ten votes, the strength of the opposition; and a proposition to except from the operation of the amendment those who had already received pardon and amnesty, was supported only by the same number. The roll being called, Senator Howard's amendment was then agreed to.2 It was a test vote, and disclosed the strength of the two parties in the Senate. Senator Hendricks, of Indiana, one of the ten who steadfastly opposed the amendment, characterized its purpose "to constrain every State to confer the right to vote upon the negro;" the penalty, in case of refusal, being the loss of representation. It was so framed, he said, as to continue. full representation to the border States, but to discriminate against those further South; thus it violated that equality among the States which the Constitution professed to guarantee. To strip a citizen of the right to vote in the manner proposed by the amendment was a usurpation of judicial functions by Congress. The section declaring the public debt inviolate was for the benefit of the bondholders, but it would only "excite distrust and cast a shade on public credit; the bondholders did not need this extraordinary guarantee." No one had attacked the public credit or questioned the obligation of the government to pay its debts; the proposition, therefore, was superfluous. As to debts contracted in aid of the rebellion, who was so stupid as to suppose them legal, or having any valid existence for one hour after the defacto government of the Confederate States ceased to exist." Nor was this the final objection; the clause, giving Congress the power to enforce the article by appropriate legislation, was full of danger. When the words were used in the amendment abolishing slavery, they were thought to be 1 Nays 10, yeas 30; May 31. Globe, p. 2921. 2 32 to 10. Ib. V 272 POWER OVER THE FRANCHISE. harmless; but, already, such force and scope of meaning had been claimed for them "that Congress might invade the jurisdiction of the States; rob them of their reserved rights, and crown the federal government with absolute and despotic power." Thus were re-echoed in Congress the fears of Florida; expressed when it ratified the Thirteenth Amendment; and of Mississippi when it rejected it.1 In re-organizing representation, it was clear that there was to be an end of the old basis of federal numbers; but should representation be apportioned to population, or to the number of electors? Senator Doolittle wished to base representation throughout the Union on the number of males over twenty-one years of age in each State; but he had little support,2 and his proposition to base it upon male electors was also rejected. Senator Williams, of Oregon, at this point, suggested several verbal amendments which, in the aggregate, involved the question of requiring a State, before making up its basis of representation, to allow no discrimination between the right to vote at a State election and to vote under the Constitution and laws of the United States. The question was a nice one, not only because it involved the right to vote, but also because it involved the penalty of an abridgment of representative power in any State in proportion to the denial which it might make of the right to exercise the elective franchise. Did Congress possess the right, under the Constitution, to regulate the franchise in the States? The amendment, now proposed, recognized this right in the States; but if any of them refused the right to the negro, and it be a 1 See p. 195. 2 Rejected, 31 to 7; June 6. Globe, p. 2986. wrong, was the government of the United States competent to redress it? The exclusion of a portion of the representation of a State, because it had denied or abridged the elective franchise on account of race or color, was a clear implication that Congress possessed some authority in the matter. But was it not also an implication that Congress could prescribe qualifications for the franchise? It admitted the right of a State to make the exclusion, though it attached a penalty for the exercise of the right. The obvious purpose of the clause, as no exclusion of white men had ever been known, was to make it of interest to the States to include the negro as an elector. The amendment was, therefore, in the nature of an inducement, not of a threat. Clearly, it did not express the right of Congress to regulate the elective franchise. To this extent it was a recognition of that "residuary sovereignty” of which Hamilton and Madison had spoken so frequently in the Federalist.1 The question of citizenship having come up, the principles involved in the Dred Scott case and its multitudinous decision were again reviewed, and the decisions of State courts as to the citizenship of persons of the African race. The great error of Chief Justice Taney, in his decision, said Senator Henderson, was his arbitrary exclusion of all negroes, though they were free, from the sovereignty which composed the Government. The amendment now under discussion would practically reverse the Dred Scott decision. Whatever the legal status of the negro, in 1857, the war had brought him into the body of American citi 1 For an account of the concept of sovereignty, 1776-1800, see the Constitutional History of the American People, 1776-1850, Vol. I, Chap. vi. See the Federalist, LXII; LXXI; see also the debate on sovereignty in the Federal Convention, recorded in Vol. I, pp. 307, 308, 371, 389, 393, 413, 451. See also the doctrine laid down in Texas vs. White, 7 Wallace, 700. |