maintaining that institution. None of the amendments presented by these three Senators received substantial support, several failing to receive more than two votes.

The amendment finally passed the Senate April 8, 1864, in the form reported by the committee, by the vote of 36 to 6.' The resolution was immediately sent to the House, but it did not come up for consideration until the last day of May. An attempt to throw it out on the first reading failed. During the consideration of the resolution Mr. Pendleton, of Ohio, the leader on the Democratic side, strenuously maintained that "three-fourths of the States did not possess the constitutional power to pass this amendment," nor, indeed, "all the States save one," because the institution of slavery "lies within the dominion reserved entirely to each State for itself." Two unsuccessful attempts were made to amend, the one by Mr. Wheeler of Wisconsin, providing that the article should not apply to Kentucky, Missouri, Delaware, and Maryland until ten years after its ratification; the other by Mr. Pendleton, who proposed that the amendment should be submitted to conventions of the people in the several States. On June 15 the vote upon the amendment was taken, the vote standing 95 yeas to 66 nays. So the joint resolution failed, not having received a two-thirds majority in its favor.5 Mr. Ashley moved a reconsideration, and, pending the action upon the motion, Congress adjourned.

123. ABOLITION SECURED BY THE THIRTEENTH AMENDMENT.

During the interim between the sessions, the Union arms had made progress, a movement for freedom had begun in the border States," and, most important of all, Lincoln had been triumphantly reelected, and the Republican party had made gains in the election for the next Congress.

In such a turn of affairs the Thirty-eighth Congress reassembled for its second session. The President in his message

1 The six negative votes were cast by Messrs. Davis of Kentucky, Hendricks of Indiana, McDougall of California, Powell of Kentucky, Riddle and Saulsbury of Delaware.

2 Inasmuch as "the power to amend did not carry with it the power to revolutionize and subvert the form and spirit of the Government. Blaine, 1, pp. 507, 537. Cong. Globe, Thirty-eighth Congress, first session, pp. 2992-2993; also ibid., Thirty-eighth Congress, second session, pp. 221-225. Replies of Messrs. Ashley, Cox, Garfield, Boutwell, and Rollins, see ibid., pp. 139, 192, 222, 245, 258, 263.

6 Maryland by her own action abolished slavery. See Cong. Globe. Thirty-eighth Congress, second session, p. 144.

at the opening of the session, after recounting the events of the past and reminding Congress that the recent election made it practically certain that the next Congress would pass the proposed amendment, recommended that the House should reconsider its action.'

2

On the 6th of January Mr. Ashley called up his motion of reconsideration. The debate on the question lasted until the last day of the month, when the resolution was reconsidered and passed amid intense excitement by a vote of 119 yeas to 56 nays. The amendment having now been adopted by both Houses, was signed by the President,3 and submitted to the legislatures of the States. On the 18th of December, 1865, the Secretary of State declared by proclamation that the amendment had been ratified by three-fourths of the States and had become a part of the Constitution.1

124. CITIZENSHIP OF NEGROES DENIED.

The conflict over the status of the negro was by no means ended when he became free. There had been many thousands of free negroes before the war; the question of their legal status, of their right to be citizens, or to enjoy the privileges of citizens had been discussed in the Dred Scott decision; so far as it had force, no negro could be or become a citizen of the United States. The first amendments which appeared on this subject were intended to affirm this principle. Mr. Florence of Pennsylvania, January 28, 1861, proposed that the descendants of Africans should not be made citizens.5 Other amendments were introduced at about the same time to prevent persons of the African race exercising the franchise or the right of holding office. Senators Saulsbury and Davis included in the series offered by them this same prohibition relative to the citizenship of Africans."

1 App., No. 1038. Blaine, Twenty Years in Congress, pp. 534-536.

2 For an account of how the requisite two-thirds majority was secured in the House, see Riddle, Recollections of War Times, pp. 324-325; Wilson, Rise and Fall of the Slave Power, III, p. 452. During the discussion of the amendment resolutions were presented from the legislature of the State of New York, April 28, 1864, and from the constitutional convention of the State of Missouri, January, 1865. App., Nos. 1036, 1044. A few days after its passage the Delegates from the Territories attempted to present a communication approving the amendment, but objection was made. App. No. 1045.

3 See post, par. 184.

4 See post, par. 186.

App., No. 884.

App., Nos. 844, 929, 951.

'App., Nos. 1011, 10391.

125. THE FOURTEENTH AMENDMENT.

The question recurred in a very perplexing form at about the time of the passage of the thirteenth amendment. Several of the Southern States, while admitting the freedom of the former slaves, passed acts placing them on a legal inferiority, and in some cases established a system of obligatory contracts practically akin to slavery. Hence, a large number of amendments were proposed giving a definition of American citizenship and guaranteeing to all citizens the equal protection of the laws. At the same time attempts were made to introduce into the Constitution clauses in regard to the new apportionment of Representatives-made imperative by the implied abrogation of the three-fifths ratio-and others relative to the disability of all those who had taken part in the rebellion. Complicated with these questions of citizenship and suffrage, were the questions of the validity of the national debt, the compensation for slaves, or the payment of the rebel debt. Two joint resolutions proposing amendments fixing the basis of representation and repudiating the rebel debt passed the House, but had failed to receive the indorsement of the Senate.3

4

On the 30th of April, 1866, Mr. Stevens of Pennsylvania, after severely censuring the Senate for their failure to pass the amendments just referred to, reported from the Committee on Reconstruction a joint resolution proposing an amendment to the Constitution. The several propositions which had been referred to the committee had now been consolidated into this one article. After slight amendments of detail, it was adopted by both Houses of Congress, and later ratified by the requisite number of States, and was added to the Constitution as the famous fourteenth amendment. The other subjects included in this amendment will each be considered in its proper place.

126. CIVIL RIGHTS CLAUSES OF THE FOURTEENTH AMENDMENT.

The origin of the first section demands particular attention in this place. Several earlier attempts had already been made

1 See ante, par. 123.

2 Lalor's Cyclopedia of Political Science: Article on reconstruction.

3App., Nos. 1055, 1079.

4 Nos. 1135-1140.

5 Nos. 1158-1163, 1177, 1180-1182, 1183. Story, II, Chap. XLVII. For history of the Joint Committee on Reconstruction, see Foster, I, pp. 227-236.

6 See ante, par. 22, (4), 121. Post, pars. 126, 128, 143, 144, 145.

to secure an amendment to the Constitution relative to the equality of the citizens before the law.

3

The first of these propositions, introduced in the House by Mr. Stevens of Pennsylvania, December 5, 1865, provided that "all national and State laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race or color." 1 The next day Mr. Bingham of Ohio offered a resolution to amend the Constitution so as "to empower Congress to pass all necessary and proper laws to secure to all persons in every State of the Union equal protection in their rights, life, liberty, and property."" Both of these resolutions were referred to the Committee on the Judiciary. Within a few days, two other amendments of similar purport were introduced. Senator Brown of Missouri submitted, February 1, 1866, a motion, which was passed, directing the Committee on Reconstruction to inquire into the expediency of amending the Constitution so as to declare with greater certainty the power of Congress to enforce and determine by appropriate legislation all the guaranties contained in that instrument, especially as to that which assures the citizens of each State the privileges and immunities of other States. Mr. Williams suggested an amendment empowering Congress to enforce "all obligations, prohibitions, or disabilities" imposed by the Constitution on the several States. A few days later, the Committee on Reconstruction reported in each branch of Congress a proposed amendment declaring that "the Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all the privileges and immunities of citizens in the several States; and to all persons in the several States equal protection in the rights of life, liberty, and property."6

No important action was taken in either House upon the resolution. There seemed to be a common desire to await the final report of the committee. March 9, 1866, during the discussion in the Senate on the amendment passed by the House relative to the apportionment of Representatives, Senator Yates of Illinois moved an amendment thereto, declaring that "all citizens, without distinction of race, color, or previous condition of slavery, shall be protected in the full and equal

App. A, No. 1049. 2 App. A, No. 1056.

App., No. 1107.

App., Nos. 1060, 1061.
App., No. 1105.

6

App., Nos. 1109, 1110.

enjoyment and exercise of all their civil and political rights." It secured, however, only seven votes in its favor.2

1

The resolution reported to the House April 30, 1866, which became the basis of the fourteenth amendment, contained in the first section the provision that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens; nor deprive any person of life, liberty, or property without due process of law; nor deny to any person the equal protection of the laws."3 This amendment passed the House without change. It soon became evident that the Senate would not adopt the amendment in the form in which it passed the House. Several attempts were made to amend this first section, some of which were successful. Mr. Wade offered a substitute for the entire resolution, but in the first section he simply proposed to substitute for "citizens" the words "persons born in the United States or naturalized by the laws thereof."

On May 30 Mr. Howard of Michigan, in behalf of the Senate members of the Joint Committee on Reconstruction, presented a series of resolutions which had been adopted by the Republican caucus as a substitute for the House amendment. The substitute was accepted. The first change thus introduced was to prefix these words to the first clause of the amendment: "All persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and of the States wherein they reside." This supplied a serious omission in the original Constitution, for in that instrument there had been no definition of citizenship.

Mr. Doolittle of Wisconsin moved to insert in this clause the words "including Indians not taxed," but to all but ten Senators such a provision seemed superfluous. A few days later, Mr. Fessenden of Maine secured the insertion of the words

'App. No. 1097.

2 Senator Stewart suggested a similar proposition (App., Nos. 1128, 1143a), while Senator Fessenden proposed an amendment prohibiting a State from making any law which shall abridge the privileges, etc. App., No. 1134.

App., No. 1135.

4 App., No. 1147.

5 App., No. 1158. A similar amendment was presented by Mr. Doolittle. App., No. 1175. The amendment of Mr. Stewart, which he intended to propose to H. Res. 127, also contained a definition of citizenship: "All persons born within the limits or under the jurisdiction of the United States, and all persons naturalized under its laws, are and shall be both citizens of the United States and citizens of the several States within which they reside," App., No. 1143a.

"App., No. 1164.