gable champion intent upon the simple and single object of gaining another Republican state. But because a very few senators, most notably Sumner and Edmunds, demanded that Congress should arbitrarily add to the constitution a grant of negro suffrage bedlam broke loose. On the twenty-seventh Sumner began the trouble by objecting to consideration of the bill late in the day. "The question involved in the admission of Nebraska," he said "is the very question that came up and was discussed so thoroughly in regard to Colorado. It occupied then ... many days, and we have not yet reached the conclusion of it."29 Though the objection was overruled by a vote of 24 to 9, such strong Republican senators as Edmunds, Foster, president pro tempore, and Morgan voted with the implacable Sumner, who then urged that the measure was premature because the population was too small to support a state and the people were indifferent about it as shown by the slender majority by which they had adopted the constitution; but chiefly because the constitution was not republican in form: I challenge the deliberate judgment of my excellent friend, the senator from Ohio ... to show that a constitution which on its face disqualifies citizens on account of color and disfranchises them can be republican in form ... I wish that my friend could lift himseslf (sic) to the argument that such a government cannot be republican in form, and must not be welcomed as such on this floor.30 But Wade was too scant an idealist and too intent on winning to scale the lofty transcendental heights to which Sumner rose, "above them all by his great looks and power imperial. So he confessed and avoided. He 29 Congressional Globe, first session thirty-ninth Congress, page 4205. 30 Ibid., 4207. |
would like to have the constitution Sumner's way, but after all it was such a little thing to balk at--those probably less than "fifty colored persons in the whole Territory. "Moreover, "no new State has yet knocked at our doors with a constitution admitting colored people to the franchise--not one." Sumner's amendment prohibiting denial of franchise on account of race or color, offered the same day, was supported only by Edmunds, Fessenden, Morgan and Poland besides himself--all New England Republicans except Morgan. Immediately after this defeat the bill was passed with the white restriction by a vote of 34 to 18. Doolittle, of Wisconsin, Foster, of Connecticut, and Harris, of New York, joined the five other Republicans named and ten Democrats against the bill.31 The bill passed the House the same day after an unsuccessful attempt by Kelley, of Pennsylvania, to insert a negro suffrage clause. 32 In the Senate Doolittle quoted the enabling act authorizing the governor to prescribe an election of delegates to a constitutional convention and also authorizing the people "to vote upon the acceptance or rejection of such constitution as may be formed by said convention, under such rules and regulations as said convention may prescribe." Thomas A. Hendricks of Indiana joined the Wisconsin senator in insisting that the proceedings of forming the constitution were not held under the enabing act; "Because," Mr. Doolittle contended, "the Legislature of the Territory had no power to order any such election until they were first authorized by Congress to do so, because in Congress under the Constitution is the legislative power which controls this matter." The en- 31 Ibid., 4222. 32 Ibid., 4275-6. |
abling act prescribed that a convention should be held in 1864 and that the vote on the constitution should be taken on the second Tuesday in October, 1864.31 Wade contended that an enabling act was not necessary and that the one in question had become functus officio. Sumner had taken the same ground in the Colorado case. The Congress adjourned July 28, the next day after the passage of the admission bill; consequently, under a provision of the constitution which allows the president ten days within which to return bills, with his approval or disapproval, President Johnson had only to withhold this one to defeat it.34 This procedure is commonly called a "pocket veto." The president had formally vetoed the Colorado bill--May 15, 1866--thereby delaying the admission of that territory until 1876. Senator Hendricks moved to consider the veto, but Wade, fearing defeat, wanted it "to lie a while." The Senate was "very thin," he said. Through Wade, consideration was made a special order for May 29, but it was not reached. On the fifth of December, 1866, the third day of the second session of the thirty-ninth Congress, Senator Wade again introduced a bill (Senate file No. 456) for the admission of Nebraska as a state; December 14 Senator B. Gratz Brown, of Missouri, who became a candidate for vice president of the United States on the Liberal Republican, or Greeley, ticket in 1872, offered the following amendment: 33 Ibid., 4209-10. 34 "If any bill shall not be returned by the president within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law." (Constitution of the United States, article 1, section 7; Congressional Globe, first session thirty-ninth Congress, page 2713. |
Provided, That this act shall not take effect except upon the fundamental condition that within the State there shall be no denial of the elective franchise or of any other right on account of color or race, but all persons shall be equal before the law; and the people of the Territory shall, by a majority of the voters thereof, at such places and under such regulations as shall be prescribed by the Governor thereof, declare their assent to this fundamental condition. The Governor shall transmit to the President of the United States an authentic statement of such assent whenever the same shall be given, upon the receipt whereof, he shall, by proclamation, announce the fact, whereupon without any further proceedings on the part of Congress this act shall take effect.35 This amendment was an original conception of Charles Sumner's, with only a slight change of verbiage. He had offered it as an amendment to the Colorado bill, March 12, 1866.36 He did not propose any amendment to the Nebraska bill. On December 19 Senator Wilson, of Massachusetts, moved to strike out all of the Brown amendment after the word color and substitute the following: 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, upon receipt whereof the President, by proclamation, shall forthwith announce the fact, whereupon said fundamental condition shall be held as a part of the organic law of the State, and whereupon, and without any further proceeding on the part of Congress, the admission of said State into the Union shall be considered as complete. Said State Legislature shall be convened by the territorial Governor within thirty days after the passage of this act. On the preceding day Senator Doolittle had declared that the amendment proposed by Brown "would confer 35 Congressional Globe, second session thirty-ninth Congress, page 125. 36 Ibid., first session thirty-ninth Congress, page 1329. |
the right of suffrage on every Indian in Nebraska,"37 So to meet this objection Senator Williams, of Oregon, suggested to Wilson that he insert "excepting, Indians not taxed" in his amendment, after the word color.38 This amendment was accepted, and it was retained in the bill on its final passage. In derision of this proposed grant of power to the legislature to amend the constitution, which had been adopted by a vote of the people, without their consent, Senator Cowan, of Pennsylvania, who had been elected as the candidate of "the people's party," introduced an amendment declaring that . . . the said State of Nebraska shall not hereafter claim nor be taken to have power or authority to convert the citizens of said State into foreigners or alien enemies, so that they may as a consequence of crime be held or considered as such.39 There was a fundamental difference between Sumner's proposed "fundamental condition" and Wilson's. The one democratically provided that the suffrage amendment should be submitted to popular vote as the original constitution had been submitted; the other that it should be submitted to the legislature. Wade opposed the amendment and Sumner wished to get it out of the way of a direct vote upon the Brown amendment; accordingly it was rejected without a roll call.40 Thereupon Edmunds offered a substitute for the Brown amendment which arbitrarily added an amendment to the constitution without reference to people or legislature: And be it further enacted, That this act shall take effect with the fundamental and perpetual condition that within said State of Nebraska there shall be no abridgment or denial of 37 Ibid., second session thirty-ninth Congress, pages 190, 169. 38 Ibid., page 191. 39 Ibid., page 196. 40 Ibid., page 328. 28 |
the exercise of the elective franchise, or of any other right to any person by reason of race or color, excepting Indiana not taxed.41 This despotic substitute was rejected by a vote of 15 to 17, such dominant Republicans as Dixon, Fessenden, Foster, Grimes, Howard, Howe, Morgan, and Sumner voting nay. Edmunds, Morrill, and Wade voted aye. Then the Brown amendment was rejected, 8 to 24, only Cowan, Edmunds, Fessenden, Grimes, Howe, Morgan, Poland, and Sumner, all Republicans except Cowan, a near-Republican, voting aye. Thereupon Edmunds offered his substitute as an additional section to the bill, and it was adopted, 20 to 18. Here Sumner inconsistently voted aye, his obsession on the subject of negro suffrage overcoming his preferred democratic method of obtaining it. Wade also voted aye, evidently because it now seemed that way lay success. But Cowan, Doolittle, Foster, Grimes, Howard, Howe, and Morgan were among the Republicans who still hold their rudder true to a broad democratic conviction. The bill was then passed, 24 to 15, the Republicans just named, excepting Howard, who went over to the majority, voting nay. Senator John Sherman excused his affirmative vote on the ground that although he was in favor of admitting Nebraska without any qualification, the friends of the measure thought the Edmunds amendment would strengthen it, and he believed it "entirely nugatory" anyway.42 So in this form the bill went to the House; but there the Wilson compromise between Sumner is democratic, and the Edmunds arbitrary condition was forced upon the Senate. 41 Ibid., page 332. 42 Ibid., pages 359, 360. |
Senator Edmunds on the one side and Senators Howe and Johnson on the other were the most conspicuous disputants of the fundamental condition question. Edmunds radically contended that if Nebraska should refuse to accept such conditions of admission as the Congress might impose it would remain a territory, or if its, senators had been admitted they might be expelled and the incipient state be dissolved into the territorial status.43 Howe retorted that if thus to tie up a state without the power to amend the constitution so as to change the condition imposed by Congress, was not a snap game "it looks the most like it of anything I ever saw in my life." Reverdy Johnson's arguments against the imposition of the fundamental condition and in particular against the extreme Edmunds doctrine were certainly the most brilliant and perhaps the ablest that were adduced in the great debate. Earlier in the contest, March 13, 1866, Wade had argued against the admission of Colorado because its population was insufficient. He said that there was always a tendency to bring in territories before the real interests of the people required it. Trumbull then taunted him for his hot and cold inconsistencies, pointing out that Wade had insisted that Colorado contained sufficient population for statehood when he pressed the enabling act of 1864.44 On January 7, 1867, Howe explained that in the course of the last session . . . I really thought that we had not the power, this Union, this Republican this loyal party of the country and its Representatives had not the power to enact a law without the assent of the 43 Congressional Globe, second session thirty-ninth Congress, page 838. 44 Ibid., first session thirty-ninth Congress, pages 1357-1359. |
President, and his assent we could not get." And hence he "began to look about for reinforcements," and though he at first voted against the admission of Colorado because the right of negroes to vote was denied in its constitution, "as it is denied in the constitution of Nebraska," yet "the necessity resting upon me finally induced me to vote for the admission of Colorado." But now, he says, "that emergency has passed by." Thanks to the unlooked for New Jersey savior, "the vetoes of the president have no sort of influence. . . We have two-thirds of both houses assured men. We can do business by ourselves and as it ought to be done. What do we want of any more votes?" Which was tantamount to saying that he could afford again to stand by his convictions and refuse to "insert a clause in the constitution of Nebraska or any other incoming State" or to "override a clause in their constitution. "45 Senators Cowan and Johnson warned their colleagues of the East against the danger to the protective tariff system which might result from the admission of the proposed purely agricultural western states. On December 18, 1866, Senator Cowan said Now, what would you think, sir, if the whole system of protection and non-protection, of free-trade or the American system, were to be put into the balances and the protective system should kick the beam because the Senators from Nebraska were thrown in? ... What would Pennsylvania say to that? What would Ohio say to that? What would all the protective States say to that? And yet that may be. It is very well known here that many gentlemen from the western StatesI do not quarrel with them, I do not think hard of them-are free-traders. They are opposed to protection because they conceive it to be a hardship upon them as they are agricultural 45 Ibid., second session thirty-ninth Congress, page 317. The meaning of the senator's reference to the New Jersey savior is explained in footnote 7, page 371, this volume. |
States, and they will resist it. Will Nebraska be with them, or will it be with the Atlantic states? On the next day, in discussing this phase of the question, Mr. Johnson said: Political economists themselves are at variance on that subject; but all unite in saying that to a certain extent, at least, the finality is that the consumer pays the amount of the tax, either wholly or partially. The western States which we have already admitted, are, if we can judge from the signs of the times, under that impression; and just as you increase them will that impression be increased, and just as you increase them will it be in their power to strike at the system to which you in your States are so much indebted for the property which you now enjoy.46 Owing to other obvious relations and influences, the new agricultural states of the West long remained strongly affiliated with the protection party; but scrutiny of the votes upon the Underwood tariff reduction act of 1913 and, I think, an intelligent analysis of the complex causes of the slide of this western section to Wilson, in 1916, illustrates the clear foresight of the senators just quoted. In his studied answer to Johnson's speech Senator Howe expatiated upon the great prosperity of the West, but evaded the main point made by the Maryland senator. Samuel S. Cox, better known as "Sunset," a veteran and famous member of the House of Representatives, characterized these two senators in very interesting fashion: The leading contestants in this debate . . . were two Senators of very different types. The senator from Wisconsin, Timothy O. Howe, was a man of the New England style. He was born in Livermore, Maine, and was an admirable judge--less advocate than judge. He was slow in speech and almost 46 Ibid., pages 168, 187. |
melancholy in manner. He seemed to be fatigued at the end of every sentence. He was of the same type of the genus homo, as William H. Seward and Simon Cameron. He was tall and thin, pallid as death, and immobile in his restful and unimpassioned habitudes. How unlike the sturdy and fervid Marylander, Reverdy Johnson, who so triumphantly replied to his dialectics. The willowy, dilatory mode of the one was in contrast with the sturdy robustness of the other. The voice of Senator Howe was not resonant. He spoke as if he were exhausted. Reverdy Johnson's elocution, albeit trained in the solemn hush and reclusiveness of the Supreme Court, was loud, orotund, and defiant. What a venerable English form the latter had; what a peculiar eye, which in after years became sightless; what an expressive mouth and form ... Other men have been more praised than Timothy 0. Howe ... but other men never deserved more enconium than he from his side in this great argument. But when the Maryland senator brought his interrogative skill into the arena, his rapier pierced the heart of the contention at every thrust. The parrying of the Wisconsin senator was adroit, but the cunning of fence and the courage of conviction of the Marylander were resistless.47 Timothy Otis Howe was senator for three successive terms, during the whole troubled war and reconstruction period--from 1861 to 1879. In his second term he was overshadowed by his leonine colleague, Matthew Hale Carpenter, who defeated him in his contest for a fourth term. Senator Howe was regarded as smart rather than profound. It was my fortune, as editor of the Mineral Point (Wisconsin) Democrat, to oppose his political precepts. Owing to my sincere conviction, stimulated by the ardency of youth, that reform of Republican policies and shortcomings was necessary, my opposition was a pleasure as well as a duty. The senator's speeches were adroit and for that strongly partisan period effective. His manner was marred by a New England twang and mal-pronounciation. In 1880 he acted with what would now be called the standpat faction of his 47 Three Decades of Federal Legislation, page 354. |
 |
 |
 |
 |