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Joint Resolution No. 402, which was in substance exactly and in language almost the same as the fifteenth amendment, was passed by the House and sent to the Senate on January 30, 1869,23 and finally abandoned for Senate bill No. 8, which ultimately (with the words "and hold office" stricken out) became the fifteenth amendment itself.
In the meantime the Senate had been considering a suffrage amendment of its own. It will be remembered that almost on the first day of the first session of this Congress Senator Henderson, of Missouri, had introduced in the Senate a joint resolution, known as Senate bill No. 8, proposing a suffrage amendment, which had been referred to the Senate Judiciary Committee. This was on March 7, 1867, only five days after the passage of the first reconstruction act by the previous Congress.24 We have the word of Senator Fessenden, of Maine, who was chairman on the part of the Senate of the Joint Committee on Reconstruction, which reported the reconstruction acts, that the Reconstruction Committee was itself in favor of proposing an amendment to establish negro suffrage, and refrained from doing so only because they did not think it possible to have it either passed by Congress or ratified by the States. 25 Doubtless it was for this reason that Mr. Henderson's resolution, No. 8, after being introduced by him, was allowed to slumber untouched in the pigeonholes of the Judiciary Committee for nearly two years. But for reasons above set forth a suffrage amendment had now become a political necessity for the dominant party. The opposition to negro suffrage had been greatly weakened by the operation of the reconstruction acts in the South, and although it was still certain that the northern people were not yet reconciled to it, the last Congress which would ever agree to propose it was rapidly approaching its end, and for those who were bent upon negro suffrage it was, as they themselves said,
now or never.
Accordingly, the Henderson amendment of March, 1867, was fished out of its pigeonhole and favorably reported to the Senate on January 15, 1869, by Senator Stewart, of Nevada, from the Judiciary Committee. Thenceforward negro suffrage was in charge of Mr. Stewart in the Senate and Mr. Boutwell in the House.
This resolution, unlike the one proposed by the House, secured the negro against discrimination in the right to hold office as well as in the right to vote,26 and many Senators and Representatives (notably Senator Wilson, of Massachusetts) were particularly insistent upon the retention of the words "and hold office," in view of recent occurrences in Georgia, where all the negro members of the legislature had been excluded from the bodies to which they had been elected on the ground that the right to vote given by the reconstruction acts did not carry with it the right to hold office, a position which the Georgia courts had fully sustained. It was urged in Congress that if the proposed amendment should secure only the right to vote, the negroes would be everywhere excluded from holding office, and so the Senate insisted upon inserting the words "and hold office," and with this and some other amendments, returned the first resolution to the House on February 10, 1869.27
General Logan, then a Representative from Illinois, protested against the insertion of these words. He said there was no necessity for them, and that recent events in
25 Almost every Senator or Congressman who spoke in favor of the fifteenth amendment urged its immediate adoption by Congress and reference to existing radical legislatures on the ground that never again would it have a chance of either passing Congress or being ratified by the States, and this, notwithstanding the fact that the new Congress about to assemble in a few days was well known to be more than two-thirds Republican, but it was the moderate Grant Republicans and not the radicals who were to dominate the new Congress and Republican State legislatures.
26 Globe for Jan. 23, 1869, p. 542.
27 Globe, pp. 1044 and 1244. Senator Wilson, of Massachusetts, was particularly bitter and insistent upon retaining the words "and hold office." He said, speaking of the recent expulsion of negro members from the Georgia Legislature: "The black men, in their magnanimity and generosity *** allowed unrepentant and unforgiven traitors to sit in the legislature with them, and the moment those men got into power they hurled the black man out of the legislature. * * * Do not tell me, sir, that the right to vote carries with it the right to hold office. It does no such thing. If there is nothing said about it the fair inference is that it does; but if there is a provision in a State constitution otherwise, silence does not annul or overthrow that constitutional or legal declaration. No man in the world has a right to hold office. The people have a right to vote and they have a right to put terms and conditions to the offices that they make. Mr. Webster said in the constitutional convention of Massachusetts in 1820 that no man had the right to hold office, but the people had the right to define and make the terms and conditions upon which offices should be held. I do not believe in anybody's right to make terms and conditions founded upon race or color, *** but many of the States have done it, and silence will not overthrow what they have done. I believe, however, that if the black men have the right to vote, they and their friends in the struggle of the future will achieve the rest. Therefore, I am willing now to give them the right to vote, if I can not get for them the right to be voted for. I will take that if I can not get any more." Globe for Feb. 26, 1869, p. 1627. This speech was delivered after the conference committee had stricken out the words "and to hold office" from the proposed amendment, the effect of which, it was generally conceded, would be to leave the States as free as ever to exclude negroes from the right to hold office, although they could not exclude them from the right to vote. See to same effect General Logan's speech in the House. Globe, Feb. 20, 1869, p. 1426.
Georgia had caused Members to lose their heads. That the right to say who should hold office was properly left by the Constitution to the States, and they would never consent to surrender it; all that there was any occasion for was to give the negro the right to vote, "and," said he, "when we give them the right to vote, they will take care of the right to hold office. On this motion the vote stood 70 yeas, 95 nays, and 57 not voting.29 Of those not voting, many were known to favor the Logan amendment, and thus it became very doubtful that, with the words "and hold office' retained, the amendment could obtain ever the requisite two-thirds vote in the House. This view was not modified by the fact that later on the proposed amendment did pass the House by two-thirds majority with the objectionable words about holding office retained; because, it had first, by aid of Democratic votes, been so weighted down by certain objectionable features, introduced by Mr. Bingham, of Ohio, that it was well known it could not, in that form, get through the Senate,30 and as anticipated the Senate did refuse to accept it in the form in which it was sent back by the House. The proposed amendment was then sent to a joint committee of conference, composed of Messrs. Stewart, Conkling, and Edmunds from the Senate, and Boutwell, Bingham, and Logan from the House.31
This conference committee considered the amendment for several days, and it was apparently made clear to them by Mr. Logan that the measure could not succeed with the words "and hold office" retained; they, therefore, abandoned the House Boutwell bill No. 402, and adopted the Senate Henderson bill, No. 8, struck out the words "and hold office'' in deference to the House, and in this form (the precise form in which the fifteenth amendment now is), it was (Mr. Edmunds alone objecting) reported by the conference committee to their respective Houses on February 23, 1869. It was passed, by the House on February 25, and by the Senate on February 26, 1869, in the exact form reported by the conference committee.32
During the course of the debate, the advocates of the measure were confronted with the pledge against such an attempt, contained in the national Republican platform of the last spring, and they were charged by the opponents of the measure in Congress with betraying the people. Many radical newspapers, particularly in the West, where opposition to negro suffrage was very strong, warned their party representatives against this breach of good faith. 33 But, to all this the radical leaders paid little atten
To the controlling Members of the Thirty-ninth and Fortieth Congresses-men who had impeached the President, passed the reconstruction acts, and prohibited the Supreme Court from questioning their validity-a mere plank in a political platform was not so much as a straw in their path. They were challenged almost daily by their opponents to allow the people to be heard at the polls on the question of negro suffrage. Mr. Hendricks, of Indiana, in the Senate, and Mr. Woodard, of Pennsylvania, in the House, offered resolutions to submit the amendment to legislatures to be thereafter chosen, and Mr. Dixon, of Connecticut, in the Senate, to submit it to conventions in the several States, instead of legislatures, but the managers of the measure were not to be caught in any such snare as that. They well knew that the people were opposed to the measure, and that, as Senator Stewart said, their legislatures were waiting then ready to act. "Send it to another conference [or he might have added, 'let the people have a chance to be heard upon it'], and the whole thing is lost." 34 At the time of the final adoption of the fifteenth amendment by the House, 34 States were represented therein, counting Georgia, whose Senators had been excluded from the Senate. Virginia, Mississippi, and Texas were still military districts. Had those three States been admitted, the total number of Representatives would have been 246, of which two-thirds would amount to 164. The total votes to which the actually admitted States were entitled were 226, of which two-thirds made 151. But the seats of Members of the sixth congressional district of Georgia,35 and of the second
28 Globe, February 20, 1869, p. 1426. 29 Idem., p. 1428.
30 Idem., p. 1428; New York Herald, Feb. 21, 1869, p. 3; and New York Tribune, Feb. 22, 1869, p. 31 Globe, Feb. 23, 1869, pp. 1470 and 1481.
32 Globe, pp. 1564 and 1641. Senator Wilson, of Massachusetts, a sincere negrophilist of the first water, was bitterly disappointed that his radical brethren had consented to strike out the words prohibiting discrimination against negroes in the matter of office holding, and, looking to the future with prophetic eye, he said he feared that people "will say that we were not actuated by a sense of justice but by the love of power; that we are willing that citizens of African descent shall vote for us, but shall not vote for citizens of their own race." See Globe for Feb. 17, 1869, p. 1307. This fear on the part of the worthy Senator does not appear to have been wholly groundless.
33 See under dates of this period, Albany Evening Journal, Chicago Post, Chicago Tribune, and Evansville (Ind.) Journal, all of which were ranked as "radical.' See also, New York Herald, New Haven Register, and an editorial of Mar. 4, 1869, in the National Intelligencer."
34 See note 107, supra.
35 Globe, Dec. 7, 1868, and postea, pp. 675 and 677.
congressional district of Kentucky,36 and Louisiana,37 respectively, were vacant; this reduced the actual membership of the House to 223, of which two-thirds would amount to 149: the final vote on the amendment, however, as recorded, was 144 yeas, 44 nays, 35 not voting.38 If the six Georgia votes be excluded, there would have been 217, of which two-thirds would be 145; but, as a matter of fact, the six Georgia Representatives were all in the full participation of their privileges; at least, five of them were actually present, of whom three voted for the amendment, two against it, and all six were formally included in the official record of the vote. The Speaker announced the vote 145 yeas, and so it is generally stated; but, there were only 144 yeas, as the record clearly shows, and the Speaker, in announcing 145, counted his own vote twice, as the record also shows.39
In the Senate, when the amendment was finally adopted, there would have been 74 votes, had all 37 States been admitted. Excluding Virginia, Mississippi, and Texas, left 68 votes. But, although Georgia had fully complied with the requirements of the reconstruction acts, and been fully admitted to representation in the House, her Senators were, in spite of the protest of Senator John Sherman, of Ohio, arbitrarily excluded from the Senate, or rather suspended, pending an investigation into the affairs of Georgia.41 This left 66 Senators actually in the body, of which two-thirds would make 44. Upon the final passage of the amendment on February 26, 1869, the vote stood, as recorded, yeas 39, nays 13, not voting 14.42 As a matter of fact, a number of the Senators not voting (including Senators Edmunds, of Vermont, and Pomeroy, of Kansas), were present in the Senate Chamber at the time the vote was taken and participated in the debate shortly before the vote was taken, and again immediately afterwards in the discussion of its announcement.43
It being manifest that the affirmative vote was 5 less than two-thirds of the actual Senate, to say nothing of the excluded votes of Georgia, the announcement by the President pro tem, Benjamin F. Wade, of Ohio, that two-thirds had voted for the amendment, was immediately challenged by Senator Garrett Davis, of Kentucky.11 It was pointed out by him and by Senator Hendricks, of Indiana, that the Constitution expressly required two-thirds of the Senate, not merely two-thirds of those present, as in the case of ratifying a treaty, or deciding an impeachment. Senator Trumbull, of Illinois, said that he had taken the same ground when the proslavery amendment of 1861 was adopted; but that, as the Democrats had overruled him then, he intimated that he was for giving them a dose of their own medicine now, and he insisted that two-thirds of those present, though less than two-thirds of the Senate, as specified by the Constitution, should suffice to pass the amendment, and so the presiding officer continued to hold.45 Senators Edmunds and Pomeroy participated in this discussion, and though they did not declare themselves, one might reasonably suprose from their remarks that they did not agree with the ruling of the Chair. 46
Thus did the fifteenth amendment pass Congress by less than two-thirds affirmative vote of either the House or the Senate, in the teeth of the express requirement of the Constitution that it shall have "two-thirds of both Houses, as distinguished from impeachments, etc., for which the same instrument requires only "two-thirds of those present. It is believed that the Supreme Court has never passed upon this question.47
40 Globe for Dec. 7, 1868, p. 2 et seq.
41 Idem., Jan. 25, 1869, p. 568. The resolution of exclusion was reported to the Senate, in the midst of the suffrage debate by Senator Stewart, who had charge of the suffrage amendment.
42 Globe for Feb. 26, 1869, p. 1641.
43 Idem., p. 1642; New York Tribune, Feb. 27, 1869, p. 1.
44 When Senator Davis raised the point that two-thirds of the Senate had not voted for the amendment, Hon. James M. Ashley, a radical Congressman from Ohio, having come over to the Senate Chamber from the House, was standing just in front of Senator Davis, and grinned at him in an offensive and contemtuous manner for making the point. This nettled the Senator, who, speaking at the Congressman, exclaimed, in the midst of his argument: "Chuckleheads may laugh; interlopers may laugh; but the proposition that I make is technically, logically, and constitutionally true." See Globe, Feb. 26, 1869, p. 164; New York Herald, Feb. 27, 1869, p. 3.
45 Senator Benjamin F. Wade, who then presided over the Senate, although a man of great ability, was notoriously ignorant of everything pertaining to parliamentary law. His erroneous rulings caused a great row between himself and Gen. Benjamin F. Butler a few weeks previous at the counting of the electoral vote, and were constantly the occasion of great confusion in the Senate. See Globe of that period and New York Tribune of Feb. 18, 1869, p. 1.
46 Globe for Feb. 26, 1869, p. 1641, 1642.
47 Compare sec. 6, art. 1, and clause 2, art. 2, of the Federal Constitution, with art. 5. of that instrument. Mr. Sumner apparently thought that two-thirds of the entire Senate, as actually constituted, was necessary to pass an amendment to the Constitution, as he had introduced in the Senate a joint resolution to that effect on February 4, 1865. (See McPherson's History of the Rebellion, p. 591.) That this had been the view of Senator Morton, of Indiana, would seem fully established by his remarks on the subject on February 17, 1869, reported on p. 1292 of Congressional Globe. In fact, the objections raised by Senators
If the passage of this amendment through Congress was unseemly, its ratification by the State legislature was, in several instances, at least, nothing short of scandalous. The amendment passed the Senate rather late Friday night, February 26, 1869. The next morning, as soon as the enrolled resolution was signed by the Presiding Officer, it was telegraphed by Congressman Sydney Clarke to the Legislature of Kansas, then on the point of adjournment. His telegram, entirely unofficial, was received by the legislature during its afternoon session, and that very evening, in less than 24 hours after the amendment had passed Congress, long before it had been certified to the States for action, and before any one in Kansas had even seen it (other than Clarke's telegraphic copy), the legislature of that State ratified it.48 The people of Kansas, at the polls, about a year previous, had voted against negro suffrage by a majority of 2 to 1.49
Senator Stewart. of Nevada, was, if anything, more anxious than Congressman Clarke, of Kansas, to obtain action by existing legislatures before the people could make themselves heard. The State of Nevada had very recently adopted a constitution which restricted suffrage to "white" men. The people of that State, like those of California and Oregon, were overwhelmingly opposed to an extension of the elective franchise to any but white men-not so much for fear of the negro as of the Chinese vote. It was generally conceded among the radical press, that Nevada would certainly reject the amendment; 50 but they underrated the resources of their own generals. I ate Friday night, as soon as the Presiding Officer had announced that 39 votes was two-thirds of a Senate of 66 Members, Senator Stewart, impressed with the fact just stated by him to the Senate that the legislatures were waiting to ratify the amendment, and that if it was not done by them, and at once, the whole thing would be lost, 51 caused the Secretary of the Senate, without even waiting for the resolution to be enrolled or signed, to telegraph it to the Legislatures of Nevada and Louisiana, to which telegram he and three others added a message urging the immediate ratification by the legislatures.
This remarkable dispatch did not reach Nevada till the next morning, Saturday, when the legislature at once endeavored to comply with its instructions, but they were not quite so docile as in Kansas, and did not succeed until Monday morning, March 1, 1869, when they ratified the amendment against a strong written protest of the minority, including Republicans and Democrats. This protest insisted, among other things, that the amendment had not received the constitutional two-thirds majority in the Federal Senate; that the Legislature of Nevada had, as yet, no official knowledge of the proposed amendment (the telegraphic report of it being, as it afterwards transpired, materially incorrect); that the people of Nevada should be given an opportunity to be heard upon it, and that the people, by voting the Republican ticket for President, had, just within a few months past, ratified the declaration of the Republican platform of May, 1868, that the control by loyal States of their suffrage laws, should not be interfered with. But all this was as baying at the moon, and Nevada was recorded as the second State ratifying the fifteenth amendment. 52
The records of the Legislature of Missouri fail to show how that body was informed of the passage of the fifteenth amendment in Congress; the newspapers of the day said some one heard of it by telegram. 53 This was enough; accordingly, that legislature, early Monday morning, March 1, 1869, suspended their rules and ratified what they thought was the amendment, 54 but it turned out, after they had adjourned,
Davis and Hendricks to the sufficiency of the final vote on the fifteenth amendment by the Senate do not appear to have been seriously controverted by any Senator at the time. That the House of Representatives had misgivings as to the sufficiency of their final vote would seem to have possibly been indicated by their adoption on July 11, 1870 (nearly four months after the ratification of the fifteenth amendment had been proclaimed) of the resolution of Mr. Ferriss, that the fourteenth and fifteenth amendments were valid as parts of the Federal Constitution, and must be recognized as such by all branches of the Federal, State, and Territorial Governments. (See McPherson's History of Reconstruction, p. 583.) It may be of interest to state that upon the final passage of the thirteenth amendment the vote in the Senate stood 38 ayes, 6 noes, total 44; and in the House, 119 ayes, 56 noes, and 8 not voting; total, 183; and upon the final passage of the fourteenth amendment, the vote stood in the Senate, 33 ayes, 11 noes, and 5 not voting; total, 49; and in the House, 138 ayes, 36 noes, and 10 not voting; total, 184. These figures are taken from McPherson's History of the Rebellion, p. 257; Throp's Constitutional History of the United States, Vol. III, pp. 138 and 150; and McPherson's History of the Reconstructionl, p. 102. I have not personally verified them by the record.
48 New York Tribune, Mar. 1, 1869, p. 1; Journal of House, Kansas Legislature for 1869, p. 911, et seq. 49 Tribune Almanac for 1868, p. 62.
50 See New York Tribune of Feb. 22 and 27 and March 5, 1869.
51 Globe for Feb. 26, 1869, p. 1641.
52 New York Tribune, Mar. 1, 1869, p. 1; Journal of Nevada Senate, 1869, pp. 228 and 249-250. That this action of the Nevada Legislature was not quietly submitted to, at least in the senate, would seem to appear from the following resolution introduced in the house on Saturday, Feb. 27, 1869, the day Senator Stewart's telegram arrived: "Resolved, That a committee of three be appointed on the part of the assembly, with instructions to confer with members of the senate, and request them not to talk so loud in debate." (See Nevada Assembly Journal of 1869, p. 228.)
53 Cincinnati Gazette, March, 1869; National Intelligencer, Mar. 10, 1869.
54 Journal of Missouri Senate, 1869, pp. 433, 434, and of House, p. 614, 616, and 618.
that the thing they ratified was not the amendment at all, and so they had to ratify all over again when they next assembled. 55 The year before, in 1868, the people of Missouri at the polls, had rejected negro suffrage by over 18,000 majority. 56 And so the program was carried out 57 until, in less than 30 days from the passage of the amendment through Congress, and, for the most part, before it had even been certified to the States, it had been ratified, under whip and spur, by the legislatures of 15 States, the people of several of which had, at the polls, within a few months past, voted by large majorities against negro suffrage, though in several cases the ratification was gotten through the legislature by a majority of barely two or three votes. Truly, the country was going to be saved by the radicals, in spite of itself.
His address was
On March 4, 1869, General Grant was inaugurated President. anxiously awaited by the advocates of the amendment, for such was his prestige at that time that truly "one blast upon his bugle horn were worth a thousand men." It was known that he had not been an advocate of negro suffrage. In his acceptance of the nomination for President he had not referred to it. During the winter of 1868-69, while the amendment was pending before Congress, he had been plied in vain by its advocates for an encouraging word. 5 The National Colored People's Suffrage Convention, held that winter in Washington under the auspices of Frederick Douglass, and which a year before had unsuccessfully appealed to President Johnson for support, now sent a committee to wait on General Grant. He did not rebuff them as Johnson had done; but he gave them a little comfort, merely telling them that he hoped they would show themselves worthy of all they asked.60 Governor Cox, of Ohio, whom Grant appointed his Secretary of the Interior, was an open and avowed opponent of negro suffrage. The very platform on which Grant was elected had, in its second article, declared against a suffrage amendment.62 All of this was very disconcerting. But could not Grant be convinced, as the radical leaders in Congress were, that negro suffrage was a national necessity? This was the occasion of much anxiety to its advocates.
But Grant, like most true soldiers of the war, was weary of civil strife. It was then believed by many that when suffrage should be universally accorded to negroes they would divide up their votes ultimately and at least to an extent become amenable to conservative influences. The people were assured that with the passage of the fifteenth amendment the "negro question" would be forever answered. 63 What the country, North and South, most needed and earnestly prayed for was peace. Such patriots as Generals Lee, Gordon, Forrest, and Hampton, whose people would be affected by negro suffrage more than any others, were said to be willing to submit to it in order to obtain general amnesty and a restoration of political rights for their people. Could not Grant do the same? He therefore in his inaugural expressed the hope that by the ratification of the fifteenth amendment a step would be taken toward the realization of that peace for which all good men prayed.65 But he apparently regarded negro suffrage as only a choice of evils.
"I never could have believed," said President Grant to a friend, "that I should favor giving negroes the right to vote, but that seems to me the only solution of our difficulties.66
Grant, however, was not very enthusiastic about the amendment accomplishing what was claimed for it, and in his annual message of December, 1869, while that amendment was still pending before the States, he did not even mention it.67
On March 17, 1869, the Legislature of New York, whose people were well known to oppose equal suffrage for negroes, ratified the amendment by a majority of two in the Senate. At that time, there was pending before the people of that State a proposed
55 Cincinnati Gazette, March, 1869; Documentary History of the United States Constitution, p. 853. It seems that the Kansas Legislature, also, thought best to ratify the amendment when they met again. (See Documentary History United States Constitution, p. 868.)
56 Tribune Almanac for 1869, p. 85.
57 Some of the newspapers of the day referred to it as "changing the Constitution by telegraph." (See Cincinnati Gazette, Mar., 1869; see also New York Tribune of Mar. 3, 1869, which rather felicitated the country upon the rapidity of the action.)
58 New York Herald, Feb. 2 and 15, 1869, p. 7.
61 National Intelligencer, Mar. 11, 1869, p. 3.
62 McKee's National Platforms, p. 136.
p. 52 et seq.
63 New York Tribune, Feb. 27, 1869, p. 4. See, to this effect, speech of Senator Oliver P. Morton, Feb. 8, 1869, Globe, p. 990.
64 New York Tribune, Jan. 11, 1869, p. 1; National Intelligencer, Feb. 1, 1869, p. 2.
65 See Grant's first inaugural, in McPherson's History of Reconstruction, p. 416.
66 Richardson's Life of Grant, p. 527. See also New York World, January, 1869; National Intelligencer, Jan. 7 and 15, 1869; and New York Tribune, Jan. 6, 1869.
67 For full copy of this message see McPherson's History of Reconstruction, p. 533 et seq.