traffic as they chose. They further claimed the right to prohibit the entrance of free negroes. The assertion of this right by South Carolina in the passage in 1820 and the subsequent enforcement of the "negro seamen act" led Attorney-General Wirt to pronounce this act unconstitutional. This controversy doubtless suggested the amendment proposed by the legislature of Georgia in 1823, which declared that "no part of the Constitution ought to be construed, or shall be construed, to authorize the importation or ingress of any person of color into any one of the United States contrary to the laws of such State." This resolution received the approval of at least three other of the slave States, and the disapproval of eight States. Usually accompanying the amendments for the suppression of the foreign slave trade introduced in 1860-61, was another providing that Congress shall pass no law prohibiting or interfering with the interstate slave trade.*

118. THE QUESTION OF ABOLITION.

All the attempts to protect slavery by constitutional amend·, ment came to an end with the breaking out of the civil war, in April, 1861. No sooner had the contest actually begun than the fugitives from the service of disloyal masters began to come within the Union lines. By the authorized action of commanding officers, seconded by later statutes, their return was forbidden." Then by the act of July 17, 1862, all fugitives the property of persons engaged in rebellion were set free, and on June 28, 1864, the fugitive slave acts were totally repealed. April 16, 1862, slavery was abolished in the District of Columbia, and on the 19th of the following June in the Territories.

All the old questions had therefore been settled by the early action of Congress. Meanwhile the advance of public sentiment had urged upon the nation two new slavery problems— the abolition of slavery in the seceding States and its abolition in the slave States which had remained loyal. To accom

1 For account of complications resulting from this act, see Von Holst, III, 128–134. App., No. 538. Perhaps suggested also by the second Missouri compromise.

3 Louisiana, Mississippi, and Missouri. App., Nos. 538a, 538b, 538c. Disapproved by Vermont, Maine, Connecticut, New Jersey, Delaware, Ohio, Indiana, and Kentucky. App., No. 538.

App., Nos. 785, 798, 821, 831, 847, 8526, 856, 867, 869e, 874h, 894, 917, 926, 946, 959, 971c. The amendment agreed upon by the peace convention on this subject stipulated that Congress should not have "power to prevent the interstate slave trade the right of touching at ports, but not the right of transit in or through nonslave States, or sale or traffic against the laws thereof." App., No. 917. Ante, par. 112.

McDougall, Fugitive Slaves, Chap. vi and Appendix C.

plish the first of these two great objects the war power of the nation was employed, and to register that result and to extend it over the whole country amendments were passed. The withdrawal of Southern members made it possible to secure a twothirds majority in both Houses of Congress, and the nonparticipation of the seceding States in the Government made it possible to secure the necessary three-fourths majority of the States.1

119. ABOLITION IN THE SECEDING STATES.

On the 22d of September, 1862, President Lincoln issued his preliminary proclamation, providing that "all persons held as slaves on the 1st of January, 1863, in any State or parts of States then in rebellion should be thenceforward and forever free." He further announced that at the next session of Congress he should recommend another proffer of national aid to any States which should "voluntarily adopt immediate or gradual abolishment of slavery within their respective limits," and further that all persons who had remained loyal should, on the suppression of the rebellion, be "compensated for all losses by acts of the United States, including the loss for slaves."

In fulfillment of this promise, at the opening of the third session of the Thirty-seventh Congress, December 1, 1862, the President in his annual message recommended several amendments. One of these provided for the compensation of such States as should abolish slavery before January 1, 1900.2 The other declared that "all slaves who shall have enjoyed actual freedom by the chances of war at any time before the end of the rebellion shall be forever free; but all owners of such who shall not have been disloyal shall be compensated for them," etc.

In accordance with his proclamation, the Southern States having refused to accept the proffered immunity and aid, the President, on the 1st of January, 1863, issued the second and final proclamation. It declared, "as a fit and necessary war measure," that all the slaves of the rebel States and parts of States "are, and henceforward shall be, free." Thenceforward, as the Federal forces advanced, the emancipation proclamation was applied, and no further proposition was made for an amendment applying only to the seceding States.

1 For discussion of the situation, see post, par. 186.

2 Post, par. 120.

120. COMPENSATED EMANCIPATION.

To extend the principle of the proclamation of emancipation to the border States meant the alienation of loyal slaveholders, to permit slavery to continue in the North while it was prohibited in the South was contrary to the whole development of the struggle. A middle way was attempted by President Lincoln's favorite device of compensated emancipation, which had actually been applied in the District of Columbia. In his annual message of December 1, 1862, the President recommended the adoption of two amendments in regard to the compensation of slaves. The first of these provided for the compensation by the General Government of such States as should abolish slavery before January 1, 1900; the second declared that all the slaves who should have enjoyed actual freedom by the chances of war at any time before its end should be forever free, but all the owners of such who should not have been disloyal should be compensated for them at the same rate as the State compensation, but no slave should be twice accounted for. A bill was presented in Congress proffering an indemnity; but the representatives from the border States defeated it. Later, after several of the border States had abolished slavery by their own act, amendments were introduced. The first of these was offered by Senator Powell of Kentucky, April 5, 1864, as an additional clause to the thir teenth amendment. It stipulated that no slave was to be emancipated unless the owner was first paid his full value." Three days later, Senator Saulsbury submitted a resolution which provided that whenever any State should free its slaves, it might apply for pecuniary assistance, and Congress might grant such relief not exceeding $100 for each person liberated.3 The last amendment on this subject was presented by Senator Davis of Kentucky, June 8, 1866, as an amendment to the resolution which later became the fourteenth amendment. The fourth section of this article among other things forbade the payment of any "claims for the loss or emancipation of any slaves." Mr. Davis proposed to insert in the sentence which guaranteed the validity of the public debt for the pay

1 App., Nos 973, 974. Blaine, Twenty Years in Congress, pp. 372-373, 445-448. Compensated emancipation and colonization had been suggested in 1861, when a resolution was proposed in the New York legislature to call upon their Representatives and Senators to urge the plan. See Rhodes III, pp. 270-271.

2 App., No. 993.

3 App., No. 1017.

ment of pensions and bounties, the following: "Including bounties promised to the owners of slaves enlisted into the military service of the United States by act of Congress of February 29, 1864,"1

121. COMPENSATION FOR SLAVES PROHIBITED.

The implied pledge in Lincoln's message and the express act of Congress led, after the war, to fears that compensation might be secured later. It was early foreseen that naturally those who had lost their slaves by the result of the war, especially those whose investments had been largely in that class of property, would, in their peculiar distress, apply for remuneration for their losses. If the compensation was made it would, in connection with the already vast debt of the war, seriously impair the national credit. Accordingly, the statesmen of the Republican party deemed it wise, in order to preclude the possibility of such an event, to secure a constitutional prohibition. The first resolution proposing such an amendment was introduced by Mr. Williams of Oregon, in the Senate on the 5th of January, 1866.2 Somewhat later in the year, Mr. Lawrence of Ohio presented a similar amendment in the House, which he renewed on two different occasions during this Congress.3 Four similar amendments were presented in the Senate previous to the consideration of the fourteenth amendment. May 10 the House passed a resolution in the form reported by the Committee on Reconstruction.5 This resolution contained in its fourth section a clause forbidding the United States or any State paying "any claim for compensation for loss of involuntary service or labor." Seven amendments to this clause were proposed in the Senate, including the one previously referred to as presented by Senator Davis. The resolution submitted by Senator Clark of New Hampshire was substituted for the entire section, and the fourth section of the fourteenth amendment now stands in this form. In 1867, before the ratification of the fourteenth amendment had been assured, Mr. Ashley of Ohio introduced as one of a series of amendments an identical proposition.

App., No. 1187.

2 App.,

No. 1067. Committee on the Judiciary reported it adversely.
App., Nos. 1074, 1075, 1076.

4 App., Nos. 1105, 1122, 1129, 1133.

5 App., Nos. 1140; 1134d in Senate.

App., Nos. 1146, 1151, 1163, 1175c, 1182, 1186, 1187. Ante, par. 120.

'App., No. 1182.

App., No. 1221.

122. TOTAL ABOLITION URGED.

Long before the question of compensation was closed, the institution of slavery had ceased to exist in nearly all parts of the Union. Public sentiment demanded that freedom should be conferred not simply by proclamation, or by ordinary legis lation, but guaranteed by the organic law of the land.

In response to this feeling, Mr. Ashley of Ohio, on the 14th of December, 1863, presented to the House a resolution providing for the submission to the States of a proposition to amend the Constitution "prohibiting slavery or involuntary , servitude in all of the States and Territories now owned or which may be hereafter acquired by the United States." The phraseology of the amendment differed but slightly from the thirteenth amendment as adopted, following the language of the ordinance of 1787. On the same day Mr. Wilson of Iowa also proposed an amendment to the effect that "slavery being incompatible with free government, is forever prohibited in the United States; and involuntary servitude should be permitted only as a punishment for crime," and that Congress should have power to enforce the same by "appropriate legislation." Both propositions were referred to the Committee on the Judiciary, but were not brought up for debate until the last day of the succeeding May, five months after their introduction. Four other resolutions of a similar character were subsequently introduced in the House during the session.3 One of these was a simple resolution declaring that the Constitution ought to be so amended as to abolish slavery, and was designed to test the spirit of the House. It was passed by a vote of 78 to 62.

In the meantime the subject had been brought up in the Senate. January 11, 1864, Mr. Henderson of Missouri introduced a resolution proposing two amendments to the Consti

App., No. 981. See letter of Mr. Ashley of December 22, 1892, in "Orations and Speeches" of James M. Ashley, pp. 330-331, and appendix. The only difference was that in Ashley's proposition section 1 contained "its jurisdiction" instead of their jurisdiction," and in section 2, "by laws duly enacted" instead of "by appropriate legisla tion." Blaine, Twenty Years in Congress, I, pp. 504–505. Mr. Ashley had also introduced the bill for the abolition of slavery in the District of Columbia, which was also modeled after the language of the ordinance of 1787.

2 App., No. 982.

3 Mr. Windom of Minnesota, Mr. Arnold of Illinois, Mr. Norton of Illinois, and Mr. Stevens of Pennsylvania. The last also made provision for striking out the clause in the Constitution for the return of persons held to service or labor. App., Nos. 1031, 1032, 1034, 1035.