tution. The first of these provided, in terms similar to those of Wilson's resolution, for the abolition of slavery; the second, for the reduction of the majorities required for the proposal and ratification of amendments. It was referred to the Committee on the Judiciary. A few days later, Mr. Sumner sub. mitted a joint resolution declaring that "all persons are equal before the law, so that no person can hold another as a slave." With some Democratic opposition, it was referred, like the preceding, to the Committee on the Judiciary. February 1 the committee reported adversely on Mr. Sumner's resolution,3 and proposed as a substitute for Mr. Henderson's proposition the article that subsequently became the thirteenth amendment. Naturally, this amendment met with determined and violent opposition by those Senators who still believed in slavery. All the attempts to amend the article, save those urged by Senator Sumner in favor of a different phraseology, or to add additional sections," were made by the few members who came from the slave States. Senator Garrett Davis of Kentucky was particularly conspicuous by reason of his long and very fiery speeches against the amendment, and the numerous "singular and factious amendments" which he presented from time to time, eight in all." Like Sieyès, who in the days of the French Revolution was ever ready with a new draft of a constitution, so Mr. Davis was ever ready with an amendment. On the 3d of March he introduced two amendments as a substitute for the committee's proposition. One of these provided that no negro should be a citizen of the United States or eligible to any office under the United States, the other that New England should be divided into two States. The division proposed was very singular, inasmuch as Maine and Massachusetts were to form the State of East New England, the rest of the States, West New England. Thus the latter State would not be formed of contiguous territory, but of two sections separated by many miles. Later, he introduced a new amendment for the division of New England which showed more regard for the geography of that region, but he withdrew it before it could come to a vote. This was doubtless introduced to show his antipathy to Massachusetts, for he previously remarked that "the most effective single cause of the

1 App., Nos. 983, 984.

2 Post, par. 181.

3 App., No. 1024.

4 App., No. 985.

5 App., Nos. 986, 998.

6 App., Nos. 987, 988, 989, 990, 991, 992, 994.

7 App., Nos. 987,988.

8

App., No. 989. See Ante, par. 46.

pending war has been the intermeddling of Massachusetts with the institution of slavery." The other amendments were submitted by him sometimes as substitutes for, and sometimes as additional sections to, the committee's resolutions. One of these provided that the slaves should not be entitled to their freedom until removed from the slave States by the Government of the United States;' another that Congress should provide for the distribution and settlement of all the freedmen of African descent in the United States among the several States and Territories in proportion to their white population;2 another still, made provision for the nomination of candidates for the Presidency by the States and for the election of President by a unanimous vote of Congress. This same amendment was subsequently introduced by him as an independent proposition and is treated elsewhere.3

Senator Powell of Kentucky was not far behind his colleague in offering amendments. Some of his propositions were unobjectionable in themselves, but were evidently prompted by a desire to embarrass the abolition amendment. The antislavery men desired the thirteenth article to go before the people as a distinct proposition and unencumbered, and consequently thwarted these attempts to amend. Mr. Powell presented four distinct amendments, one providing that "no slave should be emancipated unless the owner shall be first paid the full value thereof;" another on the term and eligibility of the President; another limiting the power of the President to make removals, and still another to prohibit riders. It was reserved for Senator Saulsbury of Delaware, on the day of the final vote on the question in the Senate, to present a substitute amendment containing the unparalleled number of twenty sections. These he declared he presented in a spirit of compromise and conciliation. The character of these propositions can be seen by an examination of the Appendix. Suffice it to say here that the first article asserted certain rights of the people, which Mr. Saulsbury evidently considered had been abused in the past. The remainder of the sections were, to a large degree, similar to some of the propositions presented in the Thirty-sixth Congress in 1860-61. The first section declared that all the provisions of this article relating to slavery should not be altered without the consent of all the States

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 6.1 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;3 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." 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.

* 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.

3 App., No. 1022.

4 App., No. 1023. See post, par. 179.

5 App., No. 985.

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.'

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, 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.*

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. 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

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, 1, pp. 227-236.

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