"or naturalized" in this sentence.1 Mr. Yates of Illinois offered a resolution to add to the amendment the provision that "nothing in the foregoing sections shall abridge or in any wise affect the right, franchise, or privilege of any inhabitants of the United States," but it failed to be acted upon.2 Mr. Reverdy Johnson of Maryland made an unsuccessful attempt to strike out an important guaranty of this article, which declared that no State should "make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

193

Mr. Buckalew of Pennsylvania moved to amend by adding to the resolution a sixth section making provision that the amendment shall be submitted to the legislatures in the States, the most popular branch of which shall be chosen next after the passage of the amendment. Mr. Doolittle proposed that the amendment should be submitted to the States as five separate articles, to be acted upon separately; but this motion secured but eleven votes in its favor"-the "Administration strength." Finally the consolidated amendment passed the Senate June 8 in the form in which it now appears in the Constitution by the vote of 33 yeas to 11 nays. On the 13th the House, by a single vote of 120 to 32, concurred in all the changes made in the Senate, and the fourteenth article was sent to the States for ratification."

127. FURTHER ENFORCEMENT OF CIVIL RIGHTS.

The fourteenth amendment was not declared in force until July 28, 1868, but during the year 1867 several additional amendments in regard to the enforcement of civil rights were proposed, but pending the action of the State legislatures upon the fourteenth amendment no further steps were taken by Congress. During the discussion of the fifteenth amendment, in 1869, several propositions were presented to prevent the right of a citizen of the United States to hold office from being denied or abridged "on account of race, color, or previous condition of servitude." The general subject came up again at the time of the Kuklux movement in the South, from 1872 to 1875. Congress passed an act in 1875 which was

1 App., No. 1183.

2 App., No. 1179.

3 App., No. 1188.

4 App., No. 1154. Post, par. 180.

App., No. 1184.

" App., Nos. 1135-1140.

App., Nos. 1194b, 1197, 1202, 1209, 1213, 1215, 1216, 1218.

App., Nos. 1285, 1289a, 1289c, 1311. See post, 131.

intended to afford protection to all in the enjoyment of the rights guaranteed by the fourteenth amendment.'

When the question was brought before the Supreme Court in the Civil Rights Cases the act was held unconstitutional,2 and the court further announced that the power of Congress to enforce the fourteenth amendment by appropriate legislation, does not extend to legislation prescribing the rights of the parties themselves between each other, but only to the correction and prohibition of legislation and action on the part of the State. Owing to this decision, six resolutions to amend the Constitution, in order to protect the civil rights and secure the equality of citizens, were introduced in the first session of the Forty-eighth Congress, 1883-84.3

The first of these was presented by Senator Wilson of Iowa, December 4, 1883, the second day of the session. It proposed to add to the Constitution, as article sixteen, the following: "Congress shall have power, by appropriate legislation, to protect citizens of the United States in the exercise and enjoyment of their rights, privileges, and immunities, and to assure to them the equal protection of the laws." Two of the other propositions were offered by Southern members, Mr. Mackey of South Carolina and Mr. O'Hara of North Carolina. No further attempt has since been made to amend the Constitution relative to this subject.

128. DISABILITY OF PARTICIPANTS IN THE REBELLION.

While Congress and the States were thus cooperating to secure civil and legal equality to the former slaves, they were also providing for a withdrawal of certain rights from those who had participated as leaders in the movement of secession. The failure of the trial of Jefferson Davis for treason put an end to any plans of legal punishment, and the wide-reaching pardons and amnesties of President Johnson seemed to restore the former belligerents to their previous privileges; but there was a popular demand that these men

1 Statutes of the United States, Forty-third Congress, second session, chapter 114, pp.

335-337.

2109 U. S., 3.

3 App., Nos. 1575, 1588, 1596, 1599, 1611, 1612.

4 App., No. 1575. An amendment proposed in 1880, in regard to the election and the free public schools, prohibited separation or distinction "on account of race, color, or social condition." App., No. 1514. See post, par. 172.

The investigation of Mr. H. F. Blake, a member in the Seminary of American History, Harvard University, 1890-91, on Treason Trials, throws much light on this subject.

should not be eligible to places of honor and trust under the United States Government, at least for some years to come.

Four amendments relative to this subject were proposed in the early months of the year 1866, previous to the consideration of the resolution which became incorporated into the Constitution as the fourteenth amendment. The first of these, presented by Mr. Cullom of Illinois, February 16, provided that no officer of the Southern Confederacy should ever be eligible to hold any office under the United States Government. About a month later, the same gentleman introduced a somewhat different resolution, which declared that "no person, except a citizen of the United States who has at all times borne true allegiance thereto, shall ever hold office under the United States."? Another resolution was presented to the House by Mr. McKee of Kentucky, which provided that no person should hold the office of President or Vice-President, Senator or Representative in Congress, or any office under the appointment of the President or Senate who had been or should be engaged in any armed conspiracy or rebellion against the Government, etc."

In the meantime Senator Poland of Vermont had submitted to the Senate an amendment which stipulated that "no person who has been or shall be willingly engaged in rebellion against the United States shall exercise the elective franchise or hold any office under the authority of the United States or of any State."4

5

The report of the Committee on Reconstruction, April 30, 1866, included as section 3 of its proposition preliminary to the fourteenth amendment, a clause by which "all persons who voluntarily adhered to the late insurrection" were excluded, until July 4, 1870, from the right to vote for Representatives or for Presidential electors. This third section was the only part of the committee's proposition which the House attempted to amend. Mr. Garfield moved to strike it out altogether." Mr. McKee of Kentucky offered a substitute which forever excluded secessionists from holding any office under the Government, and Mr. Beaman of Michigan submitted a substitute, declaring ineligible to any office under the United States

App., No. 1111.

2 App., No. 1125.

3 App., No. 1112. A similar amendment presented by Mr. Baker of Illinois, No. 1124.

4 App., No. 1116. Similar amendment presented in House. App., No. 1125.

6 H. R. 127, App. No. 1137. Similar resolution presented in the Senate. App. No. 1134b. App., No. 1141.

7 App., No. 1142.

Government any person included in any of the classes of persons enumerated. In this was included the President and Vice-President, the heads of departments, and the foreign agents of the so-called Confederate States of America; also all persons who had held any office, either civil or military, under the Government at the time of secession, who had given aid and comfort to the late rebellion.1

When the resolution reached the Senate there were twelve attempts to alter the third section. A disposition was shown by some Senators to make this section more stringent by increasing the period of disability, and also by increasing the number of offices from which ex-Confederates should be excluded.2

On the 30th of May Senator Howard of Michigan, in behalf of the Senate members of the Joint Committee on Reconstruction, presented a new draft as a substitute for the entire resolution. It proposed to insert in place of the third section the precise provision which now appears in the fourteenth amendment.3 The section was so much more stringent than that for which it was substituted that several unsuccessful attempts were made to mitigate the terms of the amendment. They were introduced by adherents of the Administration, Hendricks of Indiana, Johnson of Maryland, Saulsbury of Delaware, Doolittle of Wisconsin, and Davis of Kentucky. For some reason which has never been adequately explained, the Democratic Senators preferred the third section of the substitute, presented by Mr. Howard, to that of the corresponding section of the House amendment, although the terms of the latter were decidedly more mild. The vote by which the Senate proposition was substituted was nearly unanimous, and the entire amendment finally passed the Senate by a vote of 33 yeas to 11 nays.5

In November, 1867, before the adoption of the fourteenth amendment had become assured, Mr. Ashley introduced, in

} App., No. 1143.

Such amendments were submitted by Senator Clark of New Hampshire and Senator Wilson of Massachusetts. App., Nos. 1144, 1153. On the other hand, Mr. Johnson of Maryland moved to strike out this section altogether (No. 1155), and Mr. Wade of Ohio offered a substitute to the resolution, in which the provision excluding rebels from the suffrage until 1870 was left out (Nos. 1147-1151).

3 No. 1160.

4 App., Nos. 1165, 1166, 1167, 1168, 1169, 1170, 1185. Mr. Van Winkle of West Virginia moved to add to the amendment an article extending amnesty to all other persons not mentioned in section 3, who had been engaged in rebellion, on their taking oath to support the Constitution. App., No. 1171.

6 App.. No. 1137. (Mr. Howard's proposition. App., No. 1160.)

H. Doc. 353, pt 2-15

connection with a series of propositions, an amendment to disqualify from holding any office under the United States, or under any State, any person who was a member of any legislature or convention which passed the ordinance of secession and who voted therefor.1

The effect of the amendment thus laboriously framed was smaller than had been expected. Little difficulty was found in securing from time to time the two-thirds vote in both Houses necessary to relieve individuals and classes from their disabilities. By 1880 there remained but a few score persons excluded from the suffrage or from office, and several ex-officers in the Confederate army and ex-members of the Confederate government were found in Congress.

129. RESTRICTIONS ON SUFFRAGE.

The conditions of suffrage fixed by the Constitution, namely, that "the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature," had given rise to two difficulties before 1860– naturalization by States, and the question of the suffrage of free negroes. The first of the difficulties called out the amendment introduced by Mr. Marshall of Kentucky, January 18, 1858. It provided that the second section of the first article be so amended "that only natural-born citizens of the United States or the citizens naturalized according to an act of Congress shall be deemed qualified electors under the Constitution, to exercise the right to vote for a member of the House of Representatives."

3

The question of the suffrage of free negroes gave rise to five amendments introduced in the days just previous to the civil war; these were in each case but one of a series of amendments, presented by their authors in the hope of preventing the impending disruption of the Union. The first of these was submitted by Senator Douglas, December 24, 1860. It was in these words: "The elective franchise and the right to hold office, whether Federal, State, Territorial, or municipal, shall not be exercised by persons of the African race, in whole or in part."5

App., Nos. 1213d, 1220.

2 Art. I. sec. 2, cl. 1.

3 App., No. 777. This was the only amendment introduced in the Thirty-fifth Congress. 4 App., Nos. 843, 852h, 869h, 929, 951.

App., No. 843. The same provision appeared in the other resolutions introduced by Messrs. Crittenden, Clemens, and Pugh, as above.