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THE ADOPTION OF
THE FOURTEENTH AMENDMENT

HORACE EDGAR FLACK

»s.

OF THE

UNfVERSlTY

A DISSERTATION

Submitted to the Board of University Studies of The Johns

Hopkins University in conformity with the requirements

for the degree of Doctor of Philosophy

1906

BALTIMORE
1908

\ls>'^

^^W

Press of

The New era Printing company

Lancaster, pa.

CONTENTS.

Page

Preface 7

Chapter.

I. The Freedmen's Bureau and Civil Rights

Bills 11

II. The Amendment Before Congress 55

Section One of the Amendment 55

Section Two of the Amendment 97

Section Three of the Amendment 127

Section Four of the Amendment 133

Section Five of the Amendment 136

III. The Amendment Before the People 140

IV. The Amendment Before the States 161

V. Congressional Interpretation of Amend-
ment 210

ppendix : Text of the War Amendments 278

202689

OF THE

UNIVERSITY

PREFACE.

The Supreme Court of the United States, in the Slaugh- ^
ter House Cases, declared that the j)rivileges„aiidJmmmii= - .
ties of citizens guaranteed by the Fourteenth Amendment
are those which they possess as citizens of the United
States and not those which they enjoy by virtue of state
citizenship. ^ This decision means that those privileges and
immunities which flow from state citizenship must rest for
their security and protection where they have heretofore
rested, namely, upon the States. In Maxwell vs. Dow the-
Court declared that the privileges and immunities of citi-'^
zens of the United States do not include those enumerated-
in, and secured against violation on the part of the Central -
Government by the first eight Amendments to the Federal
Constitution. The same Court, in the Civil Rights Cases,
declared that Congress cannot enact direct, affirmative leg-
islation for the enforcement of the Fourteenth Amendment
and can enact only remedial legislation.'

The decisions in the above cases have given to the Four-
teenth Amendment a meaning quite different from that
which many of those who participated in its drafting and
ratification intended it to have. The decisions in the
Slaughter House and Civil Rights Cases especially have
been criticized on this ground. Treatises have been writ-
ten on the judicial construction of the Amendment, but
thus far no effort has been made to give anything like a
complete or exhaustive study of the historical incidents
connected with its proposal and adoption. An examination,
therefore, of the circumstances under which this addition
to our fundamental instrument of government was made,
and the discovery from them, if possible, of the desires and
expectations of its framers and supporters, becomes an
interesting and important constitutional inquiry. This has

8 Preface.

also necessitated an examination of the legislation preced-
ing the proposal of the Amendment and that enacted for
its enforcement. The purpose of this study is to pass his-
torical judgment as to the purpose and object of the
Amendment, the powers intended to be granted to the
Federal Government as well as those to be prohibited
the States, and not to pass political judgment. Further-
more, it is not the purpose of the study to consider the
effect of the limited construction given the Amendment,
but unquestionably it has had the effect of preserving our
dual form of government as established by the Constitution
of 1789, and, although the Federal Government has to-day,
under the Fourteenth Amendment, greater powers than it
possessed under the old Constitution, there has been no
revolutionary change in the respective powers of the States
and the General Government. Those who believe this dual
form of Government best, all things being considered, must
thank the Judicial, and not the Legislative, Department for
preserving it. No opinion has been expressed as to whether
the limited construction given the Amendment has been or
will be to the best interests of the country, but the assertion
may be ventured that the South has welcomed the position
taken by the Supreme Court.

The chief sources used have been the Congressional
Globe and Record, the Reports of Committees, especially
those of the Reconstruction Committee, the Journal of the
Reconstruction Committee, the Journals and Reports of the
Legislatures of the several States, and contemporary news-
papers. References to other sources will be found in the
foot-notes. It may be said that the Journal of the Recon-
struction Committee has, for the first time, been used to
any considerable extent in connection with a study of the
Fourteenth Amendment.

The first eleven Amendments to the Constitution of the
United States were intended as checks or limitations on the
Federal Government and had their origin in a spirit of
jealousy on the part of the States. This jealousy was

Preface. g

largely due to the fear that the Federal Government might
become too strong and centralized unless restrictions were
imposed upon it. The War Amendments marked a new
departure and a new epoch in the constitutional history of
the country, since they trench directly upon the powers of
the States, being in this respect just the opposite of the
early Amendments. Since reference is made so frequently
to the War Amendments, it has been thought advisable to
publish them in the Appendix.

The writer is greatly indebted to Prof. W. W. Wil-
loughby, of the Johns Hopkins University, at whose sug-
gestion this study was begun and whose counsel and advice
have been invaluable during its preparation.
Department of Legislative Reference,
Baltimore, Md., Sept., 1908.

THE ADOPTION OF THE FOURTEENTH
AMENDMENT.

CHAPTER I.
The Freedmen's Bureau and Civil Rights Bills.

To get at the basis of the Fourteenth Amendment, to
grasp its true meaning and purpose, as well as to under-
stand the object of its framers and of the people, it is
necessary to analyze the legislation which preceded and
followed the adoption of the Amendment, the causes or
alleged causes which led to such legislation and to the pro-
posal and adoption of the Amendment. The legislation
preceding the adoption of the Amendment will probably
give an index to the objects Congress was striving to obtain,
or to the evils for which a remedy was being sought, while
the legislation which followed its adoption will give at least
a partial interpretation of what Congress thought the
Amendment meant and what things or subjects it included.
This legislation, together with the debates in Congress,
while being considered by that body, as well as the debates
on the Amendment itself, should afford us sufficient mate-
rial and facts on which to base a fairly accurate estimate
of what Congress intended to accomplish by the Amend-
ment. In fact, a careful analysis of these measures and
debates should enable us to state with as much certainty as
most conclusions are stated just what object or objects Con-
gress and the framers of the Amendment had in view in
submitting it to the States for ratification. As to what the
people or the States thought of it, will be considered in a
later chapter.

A caucus of the Republican members of the House was

12 Adoption of the Fourteenth Amendment.

held on Saturday, December 2, 1865. Thaddeus Stevens,
by tacit consent, assumed the leadership and submitted the
following plan to the caucus : ( i ) To claim the whole ques-
tion of reconstruction as the exclusive business of Congress.
(2) To regard the steps that had already been taken by the
President for the restoration of the Confederate States as
only provisional, and, therefore, subject to revision or re-
versal by Congress. (3) Each House to forego the exer-
cise of its function of judging of the election and qualifi-
cations of its own members in case of those elected by the
Southern States. This plan was accepted without objec-
tion. The caucus also directed the clerk of the House to
omit from the roll all members from the Southern States
and ordered that a joint resolution for the appointment of
a joint committee of fifteen be introduced. This committee
was " to inquire into the conditions of the States which
formed the so-called Confederate States of America, and
report whether they or any of them are entitled to be rep-
resented in either House of Congress," and providing that
" until such report be made and acted upon by Congress no
member from such States be received into either House."
This programme was carried out in the House on the fol-
lowing Monday.^

This caucus and its programme were but foreshadowing
the struggle that was to take place between the President
and Congress over the question of reconstruction.
-^ The Freedmen's Bureau Bill is the first, in point of time,
of the efforts of Congress to reconstruct the Southern
States. The original bill was enacted March 3, 1865, and
was to expire one year after the termination of hostilities.
Its object was to protect and support the freedmen who
were within the territory controlled by the Union forces.

The Thirty-ninth Congress assembled in December, 1865,
and on January 5, 1866, Mr. Trumbull introduced a bill to
enlarge the powers of the Freedmen's Bureau. This bill
was referred to the Judiciary Committee of the Senate, of

^Dewitt, The Trial and Impeachment of Andrew Johnson, pp.
27-28, and the Congressional Globe, ist Sess., 39th Cong., pp. 5-6.

Freedmen's Bureau and Civil Rights Bills. 13

which Mr. Trumbull was chairman, from which it was
reported back six days later with amendments. Aside from
the subject-matter of this bill, its consideration is very
important as showing the feelings and tendencies of Con-
gressmen near the opening of the session, the gradual weak-
ening of the conservatives, and their final union with the
Radicals,

The bill, as reported from the committee by Mr. Trum-
bull, consisted of eight sections, the seventh and eighth of
which are of importance to us. The other sections author-
ized the President to divide the country into districts, to
appoint commissioners, to reserve from sale or settlement
certain public lands in Florida, Mississippi and Arkansas,
which were to be allotted to the loyal refugees and freed-
men in parcels not exceeding forty acres, and to direct the
commissioners to purchase sites or buildings for schools and
asylums.

/ The seventh section, which is of greatest importance,
'declares it to be the duty of the President to extend military
protection and jurisdiction over all cases wher.e_ anyi.of the
civil rights or immunities belonging to white persons (in-
cluding the right to make and enforce contracts, to sue,
be parties, and give evidence, to inherit, purchase, sell, hold
and convey real and personal property, and to have the full
and equal benefit of all laws and proceedings for the secur-
ity of person and estate) are refused or denied, in conse-
quence of local law, customs or prejudice, on account of
race, color, or previous condition of servitude, or where
different punishments or penalties are inflicted than are
prescribed for white persons committing like offenses. J

The eighth section was punitive in its nature, making it
a misdemeanor, punishable by a fine of $1000, or imprison-
ment for one year, or both, for any one to deprive another
of any of the rights enumerated in the preceding section
on account of race, color, or previous condition of servi-
tude. These two sections of the bill were only to apply to
those States or districts in which the ordinary course of
judicial proceedings had been interrupted by the war. The

14 Adoption of the Fourteenth Amendment.

officers and agents of the Bureau were to hear and deter-
mine all offenses committed against the provisions of this
section, as well as all cases where there was discrimination
on account of race or color, under such rules and regula-
tions as the President, through the War Department, might
prescribe.^

(The whole bill may be said to be a war measure, though
applicable in time of peace, for military officers were to be
put in charge of the districts. There seems to be little
doubt but that it was unconstitutional and that it could
scarcely be justified even as a war measure/ The measure
was unwise and inexpedient to say the least of it, for it
petarded rather than aided reconstruction.
'/ Besides providing for military courts, the bill took from
the States matters which the States and local communities
had up to that time entirely controlled, for never before had
the Federal Government interfered or attempted to inter-
fere with the rights of the States to determine who should
be qualified to make and enforce contracts, sue and be sued,
five testimony, inherit, e^.

It was claimed that th6 second section of the Thirteenth
Amendment gave Congress the power to do anything to
secure to the f reedmen all the civil rights that were secured
to white men. Mr. Hendricks, of Indiana, denied that con-
struction, holding that no new rights were conferred upon
freedmen, and that the only effect of the Amendment was
to break the bonds which bound the slave to his master.
He also contended that the laws of Indiana, which did not
permit negroes to acquire real estate, make contracts, or to
intermarry with whites, would practically be annulled by
the bill, since they were civil rights. He also regarded the
right to sit on a jury as a civil right.^

Mr. Trumbull, replying to Mr, Hendricks, said that the
provisions of this bill which would interfere with the laws
of Indiana could have no operation there, since the ordi-

* Globe, 39th Cong., 1st Sess., pp. 209-10.
■Ibid., p. 318.

Freedmen's Bureau and Civil Rights Bills. 15

nary course of judicial proceedings had not been inter-
rupted. He held, however, that the second section of the
Thirteenth Amendrnent was adopted for the purpose of
giving Congress power to pass laws destroying all discrim-
inations in civil rights against. th?._ black man. He denied
that the bill interfered with the laws against the amalgama-
tion of the races, since they equally forbade the white man
to marry a negro. While this bill was to be temporary, he
stated that the Civil Rights Bill, which was then before
Congress, was intended to be permanent and to extend to
all parts of the country. It was incumbent on Congress,
he declared, to secure this protection if the States would
not.*

Senator Wilson, of Massachusetts, who later became
Vice President under General Grant, pointed to the fact
that the laws of many of the Southern States were incon-
sistent with freedom, and that the Civil Rights Bill was to
annul the black codes and put all under the protection of
equal laws.' Mr. Davis tried to amend the bill to secure
an appeal from the decision of the agents of the bureau to
the courts, but all his amendments were rejected.^ He also
held that the bill was unconstitutional in that it invested
the bureau with judicial powers, these powers to be exer-
cised by army officers, and that it deprived the citizen of
his right to trial by jury in civil cases contrary to the Sev-
enth Amendment to the Constitution. He agreed with Mr.
Hendricks as to its effect on the laws against the intermar-
riage of the races, and predicted that the Southern States
would be kept out until Congress had passed some obnox-
ious amendments, had conferred suffrage on the negroes in
the District of Columbia, had irnposed the .sartt&jg!ji.ious prin-
ciple _on the South .which most, of the Nortiiern States
rejected with scorn, and had enacted the Freedmen's Bureau
and Civil Rights Bills.''

*Ibid., pp. 321-323.
"Ibid., p. 340.
'Ibid., pp. 399-400.
'Ibid., pp. 415-19-

i6 Adoption of the Fourteenth Amendment.

The bill was passed in the Senate, January 25, 1866, by
^ vote of 37 to 10, the vote being strictly partisan.^
^ The bill was then debated in the House at considerable
length. Mr. Dawson, of Pennsylvania, in opposing it,
stated that he regarded the privileges or rights secured by
the Fourth, Fifth and Sixth Amendments as the birthright
of every American. He asserted that the Radicals held that
both races were equal, socially and politically, and that this
involved the same rights and privileges at hotels, in railway
cars, in churches, in schools, the same right to hold office,
to sit on juries, to vote, to preside over courts, etc.® While
this interpretation probably could not be given to the bill
itself, it shows what some of the minority thought and felt
to be the inevitable result of the doctrines enunciated by
the radical leaders, and as will be seen later, these very
principles were finally incorporated into the laws of the
Federal Government by the party and men who denied hav-
ing any such intentions./

Mr. Kerr,^** of Indiana, and Mr. Marshall, of Illinois,
were of the opinion that the Thirteenth Amendment did not
authorize the bill. The latter asserted that if the bill were
carried out, it would be in the power of the Federal Gov-
ernment to establish military tribunals in every State where
there was discrimination against negroes. He regarded
the right to sit on juries, to marry, and to vote as civil
rights, and which could not, therefore, be denied on account
of race or color.^^

Mr. Rousseau, of Kentucky, said that under the opera-
tion of the bill a minister refusing to marry a negro and
white person would be committing a criminal act and con-
sequently would be subject to the penalty imposed by the
eighth section. He also declared that it gave negroes the
same privileges in railway cars and theaters, and that there
would be mixed schools where it was in operation. He
cited a letter from Charleston to show that he was right in

' Ibid., p. 421.
•Ibid., p. 541.
"Ibid., p. 623.
"Ibid., pp. 628-29.

Freedmen's Bureau and Civil Rights Bills. ly

regard to schools, and declared that no one could success-
fully combat his position, and, though he was interrupted
several times, no one questioned his statements in regard
to these things. ^^

Mr. Moulton held that the right to sit on juries and the
right to marry were not civil rights, but Mr. Thornton of
the same State thought otherwise.^^ Mr. Grinnell, of Iowa,
seemed to regard the right to bear arms as a civil right, for
in giving evidence to show that the bill was needed in Ken-
tucky, he pointed to the fact that negroes were not allowed
to keep a gun, to sit on the jury, or to vote.^* J^r. JEliot,
of Massachusetts, who had charge of the bill in the House,
moved an amendment to the seventh section by inserting as
one of the rights to which negroes were entitled " the con-
stitutional right to bear arms." ^° Since the House adopted
this amendment, which was also concurred in by the Sen-
ate, it is evident that the right to bear arms ^as regarded
as one of the rights pertaining to citizens, and as this right
is secured by the Second Amendment, i^: m^y reasonably be
ig.(erred that the other^ rijgli.t§^^jj4,45-rivileges^ secured^gr
enumerated By" the first eight Amendments were also, re-
garded as belonging to all persons. The bill passed the
House February 6, 1866, by a vote of 136 to 33^® — only
one Republican (from Missouri) voting in the negative.

When the bill was again before the Senate, with the
House amendments, Mr. Trumbull remarked that the
amendment as to the right to bear arms did not alter the
meaning of the section. That is, that the right to bear
arms being a civil right secured by the Constitution would
have been secured to the negroes by the bill in its original
fprm.^^

//'On February 19, the President returned the bill to the
Senate with a veto message. He thought it not only

" Ibid., Appendix, pp. 69-71.
"Ibid., p. 632.

lUlU., p. UJ^.

"Ibid., p. 651,

"Ibid., p. 654.

"Ibid., p. 688.

"Ibid., p. 743

1 8 Adoption of the Fourteenth Amendment.

inconsistent with the pubHc welfare and unconstitutional
in certain provisions, but also obnoxious in that it did
not define the civil rights , and immunities to be secured
to the freedmen by it.^*/ Messrs. Davis and Trumbull
were the only Senators Who spoke on the veto. The for-
mer, in supporting it, declared that the intermarriage of
the races, commingling in hotels, theaters, steamboats, and
other civil rights and privileges, had always been denied

" Ibid., p. 916. Among other things he declared : " I share with
Congress the strongest desire to secure to the freedmen the full
enjoyment of their freedom and property, and their entire inde-
pendence and equality in making contracts for their labor; but
the bill before me contains provisions which, in my opinion, are
not warranted by the Constitution, and are not well suited to ac-
complish the end in view. ... In those eleven States, the bill
subjects any white person who may be charged with depriving a
freedman of * any civil rights or immunities belonging to white
persons ' to imprisonment, or fine, or both, without, however, de-
fining the ' civil rights and imraunities ' which are thus to be se-
cured to the freedman by military law. . . .

" The trials, having their origin under this bill are to take place
without the intervention of a jury, and without any fixed rules
of law or evidence. The rules on which offenses are to be heard
and determined by the numerous agents are such rules and regu-
lations as the President, through the War Department shall pre-
scribe. No previous presentment is required, nor any indictment
charging the commission of a crime against the laws; but the
trial must proceed on charges and specifications. The punishment
will be — not what the law declares, but such as a court-martial may
think proper; and from these arbitrary tribunals there lies no
appeal, no writ of error to any of the courts in which the Con-
stitution of the United States vests exclusively the judicial power
of the country." This system of military jurisdiction, he said,
could not be reconcile I with the Fifth and Sixth Amendments to
the Constitution of the United States.

In his second veto of the bill, July 16, 1866, the President re-
affirmed the objections given in his veto, February 19, and referred
to the Civil Rights Bill which had been passed over his veto, April
9, as a further reason against the necessity of the bill. In reference
to the Civil Rights Bill, he declared : " By the provisions of the act
full protection is afforded through the district courts of the United
States, to all persons injured and whose privileges, as thus declared,
are ^ in any way impaired ; and heavy penalties are denounced
against the person who wilfully violates the law. I need not state
that that law did not receive my aooroval; yet its remedies are far
more preferable than those proposed in the present bill, the one be-
ing civil and the other military."

In reference to that part of the bill which made it possible for a
man to be 'deprived of his property contrary to the Fifth Amend-
ment, he said : " As a general principle, such legislation is unsafe,
unwise, partial and unconstitutional." McPherson's Reconstruc-
tion, p. 147,

Freedmen's Bureau and Civil Rights Bills. 19

the free negroes, until Massachusetts had recently granted
them.^* Mr. Trumbull spoke quite at length in opposition
to the veto, but never denied or questioned the contention
of Mr. Davis.

The veto was sustained February 20, the vote being 30
to 18 in favor of the bill, and so not the necessary two
thirds to override the veto.-'^

Messrs. Doolittle, Cowan, Dixon, Morgan, and Stewart
were among the Republicans voting with the Democrats,
but some of those who were able, at that time, to be con-
trolled by reason were soon won over by the Radicals.
While the bill failed to become law, it was practically re-
enacted July 16, 1866, over the veto of the President. His
second veto was so strong, however, that party discipline
and prejudice were necessary to keep it from being sus-
tained, as it could not have been sustained on its merits.^^

So bitter was the fight against the President at the time
both Houses passed the bill over the veto on the same
day that it was received, without debate in the House and
with two speeches in the Senate, even before the message
was printed.^^

//The Civil Rights Bill was undoubtedly the most impor-
tant bill passed during the first session of the 39th Con-
gress. It was a companion measure to the Freedmen's
Bureau Bill, both being introduced at the same time by
Senator Trumbull. Both bills were also referred to the
same committee and reported back at the same time. Pre-
cedence was given, however, to the Freedmen's Bureau
Bill, but after its failure to become law, the Civil Rights
Bill was taken up and debated at great length — the minor-
ity using every means possible to prevent its passage.'

The Radicals were very much chagrined by the successful
veto of the Freedmen's Bureau Bill, and every effort was

" Globe, 39th Cong., ist Sess., p. 936.

*• Ibid., p. 943.

^ Burgess, Reconstruction and the Constitution, p. 89.

^Blaine, in his "Twenty Years of Congress," volume II, p. 171,
says : " It required potent persuasion, reinforced by the severest
party discipline, to prevent a serious break in both Houses against
the bill."

20 Adoption of the Fourteenth Amendment.

made to bring the recalcitrant into line. The party whip
was brought to bear with telling effect, as it was deter-
mined that the Civil Rights Bill should become law. The
first section of the Civil Rights Bill was almost identical
with section 14 of the Freedmen's Bureau Bill as finally
adopted, and pt is to Jhefirst^ section of the Civil Rights^
Bill that we especially wish to direcFattention, since it was
I to secure the provisions of this section that the first section
j of the Fourteenth Amendment was incorporated into our
I Constitution. The first section was in fact the basis of the
I ^hole bill, the other sections merely providing the machin-
J erv for its enforcement.! — -

Section one as originally introduced declared that there
shall be " no discrimination in civil rights or immunities
among the inhabitants of any State or Territory of the
United States on account of race, color, or previous condi-
tion of slavery ; but the inhabitants of every race and color,
without regard to any previous condition of slavery^ or
involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall have
the same right to make and enforce contracts, to sue, be
parties, and give evidence, to inherit, purchase, lease, sell,
hold, and convey real and personal property, and to full
and ec[ual _benefits of all laws and proceedings for the
security of persons and property, and shall be subject to
like punishments, pains, and penalties, and to none other,
any law, statute, ordinance, regulation, or custom, to the
contrary notwithstanding." It was subsequently added that
all persons born in the United States, and not subject to
any foreign power, Indians not taxed being excluded, were
dtizens of the United_States.2^ The purpose of this clause
was to make a declaration that negroes were citizens of the
United States, and so avoid the consequences of the Dred
Scott decision. This is the only notable difference between
the provisions of this section of the Civil Rights Bill and
those of the Freedmen's Bureau Bill.

Mr^JJVumbull, chairman of the Senate Judiciary Com-

* Globe, 39th Cong., ist Sess., pp. 211 and 474.

Freedmen's Bureau and Civil Rights Bills. 21

mittee, and the putative f ather_gf_the Civil Rights Bill,
said that the purpose of the bill was to destroy the discrim-
ination made ag^ainst the negro in the laws of the Southern
States and to carry into effect the Thirteenth Amendment.
TKe second section of the Amendment gave Congress the
power to pass any bill that it deemed appropriate to secure
the freedom conferred by the first section. He cited the
kws of South Carolina and Mississippi to show that the
negroes were discriminated against, and said that nearly
all the state legislatures of the Southern States which had
met since the adoption of the Amendment abolishing slav-
ery, had practically reenacted the slave codes. The right
to have fire-arms, to go frorn place to place, to teach, to
preach, and to own property, he regarded as the rights of
a freedmaiTT, aftdlhat the laws denying these rights to the
negroes might properly be declared void. He was candid
enough, however, to state, without being questioned, that
the bill might be assailed~on the ground that it gave to the
FederaPGovernment powers which properly belonged to
the States, though he did not think it open to that objec-
tion, since it would have no operation in any State where
the laws were equal.

In answer to the i:juerv of what was meant by the term
" QJvil rights," he replied that the first section of the bill
defined it, and that it did not undertake to confer any polit-
ical rights.^* I lt^seems_evident. however, that the term \^
"civil rights ■ was meant to include more than the specific
rights enumerated in the first section of the bill, for^r.
Trumbull had, a few minutes before, declared that the right
to travel, to teaclCto' preach, etc., were ri,Q-hts which belonged
to all, "and tha,t the bill was to secure tnem to all. y /

It must aVso be remembered that Mr. Trumbull had ''
framed the jFreedmen's Bureau Bill which had been passed
by the Senafe four days before, the seventh section of which
was almost identical with the first section of this bill. That
bill made the same enumeration of rights, but they were

''Ibid., pp. 474-76.

22 Adoption of the Fourteenth Amendment.

declared to be only a part of the civil rights and immunities
of citizens.

Mr. Sattlsbury^, of Dela, ware, took a decided stand against
the whole measure, declaring that it was not only unconsti-
tutional, but that it was subversive of the true theory of
our Federal system. His position was that the theory of
those who advocated the bill would make the people sub-
ject to the absolute control of Congress, and that this was
contrary to the intentions of the Fathers. He did not deny
that those who voted for the Thirteenth Amendment might
have intended to confer the power on Congress to pass such
a bill as the one under consideration, but that such inten-
tion was not avowed at the time. In his opinion suffrage
was a civil right and would, therefore, be conferred on
negroes by the bill. The terms of the bill would be con-
strued, he said, according to their legitimate meaning and
import, and not according to what Mr. Trumbull intended.
This bill, if enacted into law, would, he asserted, deprive
the States of their police power, and would nullify the laws
of his State which forbade negroes to keep fire-arms or
ammunition.^^ This last statement was not questioned by
any one, and since Mr. Trumbull also seemed to recognize
that the right to keep arms was a right to which all were
entitled, we may conclude that this right was intended to
be conferred upon negroes if the States permitted white
men to enjoy it. The right to keep and bear arms is recog-
nized in the national Constitution, but only to the extent
of saying that the Federal Government could not deny the
right, and not at all limiting the power of the States to
determine who might exercise that right. As a further
evidence that Mr. Saulsbury was correct in his opinion, we
have already seen that the right to bear arms was specific-
ally recognized as one of the civil rights in the Freedmen's
Bureau Bill.

Mr. Van Winkle, of West Virginia, and Mr. Cowan, of
Pennsylvania, both Republicans, thought the bill unconsti-
tutional. Mr. Cowan went so far as to say that if the Con-

''Ibid., pp. 476-78. """^ ~

Freedmen's Bureau and Civil Rights Bills. 23

stitution authorized the bill, then Congress had the power
to overturn the States themselves.y' If the Jjill became Igiw
the statutes o^^Pennsylvania in regard tQJnherit^afies would,
he declared, be repealeSTalld the law providing for separate
schools would be nullified, thus making tji^e scUoftLiiirectors,
should they execute the state law, criminals. In his opin-
ion, the Amendment abolishing slavery was not intended to
revolutionize the laws of the States, nor was it pretended
that it did more than sever the bonds that bound the slave
to his former master, and that no wider operation could be
given it than to sever the relation between the master and
his slave.2« Ije-alsQ thousbt..lkat- tlia-^bilLv^ffig-Uld jj 11 11 if30
^ate laws in reg3rd^tji.jaiisx;i^ggjiatiQo..!I

Mr, Howard, of Michigan, a member of the Reconstruc-
tion Committee, spoke in defense of the bill, and in reply
to Mr. Cowan said that he was a member of the Judiciary
Committee at the time the Thirteenth Amendment was
drafted and reported to the Senate; that he remembered
very distinctly the views entertained by the members of that
committee in regard to the Amendment ; and that it was the
intention of its friends and advocates to give Congress the
precise power over slavery and freedmen which was pro-
posed to be exercised by the bill then under consideration.
He said that they easily foresaw what efforts would be
made by the South to deprive the freedmen of their rights
and privileges, and that it was the purpose of the Amend-
ment to give Congress the power to forestall or annul those
efforts.^^

Mr. Reverdy Johnson, of Maryland, who was probably
the best constitutional lawyer in the 39th Congress, believed
that the bill was unconstitutional. He even thought that
it would nullify state laws against miscegenation, though
he did not think the framers of it intended to do this.^^ If
he, a good lawyer and a conservative man, thought the
terms of the bill could be so construed as to do this, it is

* Ibid., pp. 499-500.

^ Ibid., p. 604.

"Ibid., p. 503.

"Ibid., p. 505.

24 Adoption of the Fourteenth Amendment.

perfectly evident that the courts might fall into the same
error, if indeed it would be an error. He suggested that
the bill should be made so plain as to obviate this difficulty,
but his suggestion was not followed.

Some of the Senators from California, Oregon, Minne-
sota and other Western States, wanted the first clause so
amended as not to make Indians citizens, saying that the
state laws which made it an indictable offense for a white
man to sell arms or ammunition or intoxicating liquors to
Indians, would be nullified, since it could properly be held
that the Indians, if declared to be citizens, would have the
same right to buy, sell, and use that kind of property as
any other citizen. Mr. Henderson, of Missouri, replying
to these objections, said that it would not necessarily follow
that such laws would be abrogated, since the States would
still have the power to declare who were competent to make
contracts, etc., just as they did in regard to minors.*" He
seems to have been in error here, for in the same section
of the bill it was stated that the right to make contracts,
to buy, to sell, etc., could not be denied on account of race
or color. It would thus be impossible for the States to say
that Indians could not keep fire-arms or make contracts,
since the law must apply equally to all races. There might
be educational or age requirements, but such requirements
would have to apply to all.

Mr. Davis, of Kentucky, seemed to think that, if the bill
became law, suffrage would be conferred on the negroes,
that miscegenation could not be prohibited by state law,
and that a despotic central government would be created.
He characterized the bill as " outrageous," " unconstitu-
tional," " iniquitous," " most monstrous," ' and " abomin-
able."*^ Mr. Trumbull again reiterated the statement that
the bill was applicable exclusively to civil rights and that it
did not propose to regulate political rights or to confer
suffrage.*^

" Ibid., pp. 572-74-
Ibid., pp. 595-99.
"Ibid., p. 599.

Freedmen's Bureau and Civil Rights Bills. 25

Mr. Guthrie, of Kentucky, a very fair-minded man, said
that Congress was legislating before the States had acted,
before they had had time to legislate, and that the bill under
consideration attempted to repeal state laws and to enact
new laws for them, the enforcement of which was put in
new hands. He denied that the people had intended by the
Thirteenth Amendment to turn over the state governments
and subject them to the dominion of Congress.^^ Mr.
McDougall, of California, opposed the bill on the ground
both of constitutional law and of sound policy. He ap-
proved what was said by Senators Guthrie, Hendricks, and
Cowan.^*

Mr. Saulsbury, just before the final vote was taken,
offered an amendment inserting the words " except the
right to vote in the States " after the words " civil rights."
He contended that suffrage was a civil right, and since Mr.
Trumbull had said that it was not the purpose or intention
of the bill to confer suffrage, he wanted it so stated specific-
ally. The amendment was rejected, however, by a vote of
39 to 7^^ — three Democrats voting against it, evidently
thinking that suffrage was not conferred by it.

The bill was then passed by the Senate, February 2, 1866,
by a vote of 33 to 12, five being absent.^* Among the nega-
tive votes were those of three Republicans, Cowan, Van
Winkle and Norton.

-^/Mr. Wilson, of Iowa, chairman of the Judiciary Commit-
tee, had charge of the bill in the House and opened the
^bate on it March i. It was not the object of the bill, he
said, to establish new rights, but to protect and enforce
those which already belonged to every citizen. It did not
mean that all citizens should have the right to sit on juries,
or that their children should attend the same schools, for
these were not civil rights or immunities'. He regarded
civil rights as synonymous with natural rights/ As to the
clause declaring who should be citizens of the United States,

^ Ibid., pp. 600-01. .
^Ibid., p. 604.
* Ibid., p. 606.
"^Ibid., p. 607.

26 Adoption of the Fourteenth Amendment.

he said that this was but declaratory of what was already
the law, holding that all free persons born in the United
States were citizens thereof. The opinion of Marshall in
the celebrated case of McCulloh vs. Maryland was cited
to show that Congress was the sole judge as to the neces-
sity of the measure, and it was declared that there could
be no appeal from the decision of Congress except to an-
other Congress.^^

Mr. Cook, of Illinois, also took the position that Congress
was the judge as to the necessity and appropriateness of
legislation to secure the rights of freedmen to those who
had been freed.^*

Mr. Rogers, of New Jersey, one of the leaders of the
minority, vigorously opposed the whole measure. He de-
clared that the Amendment proposed by Mr. Bingham, and
which had just been discussed in the House, was offered to
authorize such a bill as this one. Mr. Bingham had offered
that Amendment with the approval of the majority of the
Reconstruction Committee, and it might properly be in-
ferred that those who approved that Amendment at least
thought it doubtful whether Congress possessed the power
to pass such a bill as the one then under consideration.

If Congress had the power to interfere with the state
laws, regulating schools and marriage, it equally had the
power, contended Mr. Rogers, to confer the elective fran-
chise. Jn fact, he regarded suffrage as a civil right and as
such would be conferred by the bill. Reference was also
made to Secretary Seward's reply to the objections raised
against the second clause of the Thirteenth Amendment.^*
Governor Perry, of South Carolina, had wired the Presi-
dent that the only objection the Legislature had to the
Amendment abolishing slavery was tHe~ second section,
which it feared might be construed to give Congress power
of local legislation over both negroes and white men. To
this telegram Secretary Seward replied that the objection

"Ibid., pp. 1 1 15-18.
''Ibid., p. 1 124.
"Ibid., pp. 1120-23.

Freedmen's Bureau and Civil Rights Bills. 27

to the second section was regarded as " querulous and un-
reasonable," since it really restrained, rather than enlarged,
the powers of Congress, These telegrams were sent to
the Legislature by Governor Perry to be placed on " record
aTthe oonstruction which had been given to the Amendment
by the executive department of the Federal Government."
The Legislature, in ratifying the Amendment, stated that
i|' was understood that Congress could not legislate as to
the political status or civil relations of the negroes.

Alabama and Florida added almost identical declaratory
resolutions, to the eflfect that the Amendment was not to
confer power upon Congress to legislate upon the political
status of the freedmen in those States.*"

Mr. Thayer, of Pennsylvania, declared that the bill could
nof15e' construed to confer suffrage, suffrage being a polit-
ical, and not a civil, right, and that the enumeration of the
fights to be secured precluded the possibility of extending
the meaning of the general words beyond the particulars
enumerated. If his position on this point is correct, then""
the meaning of the general terms used in the first section
of the Fourteenth Amendment could be extended, since

^re is no enumeration of. particulars in it-' The first
clause of the Civil Rights Bill only reiterated what was
already law, he contended, and that if this was not the case,
that Congress had the power, under the naturalization
clause of the Constitution, to declare who were citizens.
He also stated explicitly that he intended, when* he voted
for the second section of the Thirteenth Amendment, to
give Congress the power to legislate for the purpose of
securing the rights which the first section gave to the freed-
men; in other words, to authorize such measures as the
Civil Rights Bill. He did not think the Amendment pro-
posed by Mr. Bingham necessary, though he would sup-
port it in order to make things doubly secure.*^

To show that there was a feeling among others than
opponents of the bill that it might be construed to confer

** McPherson, Reconstruction, pp. 21-25.
*^ Globe, 39th Cong., ist Sess., pp. 1151-53.

28 Adoption of the Fourteenth Amendment.

suffrage, Mr. Hill, of Indiana, a Republican and a sup-
porter of the measure, proposed that the words " except
the right of suffrage " be inserted. This amendment he
considered a fair and explicit statement of what the advo-
cates of the bill had repeatedly declared in debate. He also
thought it necessary in order to relieve the bill from am-
biguity upon that point.*^

Mr. Eldridge, of Wisconsin, said that the bill not only
proposed to regulate the police and municipal affairs of the
States, but that it attempted to prostrate the judiciary of
the States, and that it was designed to accumulate and
centralize power in the Federal Government. He also
cited the fact that Mr. Bingham had introduced a resolu-
tion proposing a constitutional amendment for the purpose
of meeting the constitutional objections to the passage of
the bill.*^ He very tersely presented the objections enter-
tained by the minority to such legislation.

Mr. Thornton, of Illinois, a conservative Democrat, held
that it was not necessary for a man to possess and enjoy
all the civil rights and immunities in order to be free, and
that the Amendment abolishing slavery only authorized
such legislation as was necessary to 4nake men free. He
thought the former slaves should have the right to testify
and to contract, but to undertake to legislate beyond that
would trench upon the rights of the States. He main-
tained that the construction put upon the Amendment by
the advocates of the bill would make the power conferred
upon Congress by it indefinite and unlimited except by the
caprices of those who might assume to exercise it. If Con-
gress should determine, he continued, that the elective fran-
chise was necessary to freedom, then it could enact a law
conferring it. This contention seems perfectly proper, for
if the premise of the proposition of those advocating the
bill is accepted, it logically follows that Congress might
declare that any or all of the political rights were either
necessary or appropriate to secure freedom to the former

**Ibid., p. 1 154.
**Ibid., pp. 1154-55.

Freedmen's Bureau and Civil Rights Bills. 29

slaves. Mr. Thornton did not think the term " civil rights "
included the right of suffrage, but that with the loose and
liberal construction then in use it might be so construed,
and for that reason he thought the amendment stating spe-
cifically that suffrage should not be granted ought to be
accepted.**

Mr. Broomall, of Pennsylvania, regarded the right of
speech, of transit, of domicil, and of petition as being some
of the rights and immunities of citizens.*^ Mr. Raymond,
of New York, a conservative or administration Republican,
said that the negroes, if made citizens of the United States,
would have the right to go from one State to another, to
bear arms and to testify in the Federal courts. He, how-
ever, thought the bill unconstitutional, especially the second
section.*®

Mr. Delano, of Ohio, a Republican, thought that the
clause " the full and equal benefit of all laws and proceed-
ings for the security of persons and property, as is enjoyed
by white citizens " conferred the right of being jurors,
though Mr. Wilson did not think so. Mr. Delano stated
that he was in favor of the main purposes of the bill, but
he did not think it advisable to confer upon the negroes at
that time the right of being jurors. Furthermore, he
thought it doubtful whether Congress had the power to
pass the bill, since neither the right to testify nor to inherit
was necessary to freedom, as was illustrated by the various
state laws declaring that certain persons could not testify
or inherit. In some States aliens could not inherit and
infidels could not testify. It was also pointed out that the
former law of Ohio which did not permit negroes to par-
ticipate in the public schools or in the funds would have
been void under this bill.*'^ If the phrase " full and equal
benefit of all laws and proceedings " was not an extension
of the privileges enumerated, then it was meaningless
and should not have been put in. While opposing the bill

"Ibid., pp. 1156-57.

""Ibid., p. 1263.

*'Ibid., pp. 1266-67.

"Ibid., Appendix, pp. 156-58.

30 Adoption of the Fourteenth Amendment.

as being of doubtful constitutionality, as tending towards
centralization and consolidation, Mr. Delano nevertheless
voted for it.*^ Mr. Davis, of New York, was another who
said that the bill was not in consonance with the Constitu-
tion, but was in derogation of the rights of the States, and
yet voted for it.'*®

Mr. Kerr, of Indiana, seemed to think that the bill would
permit negroes to engage in certain kinds of business, such
as retailing spirituous liquors, which was denied them, to
attend the same schools with white children, and to rent
and occupy the most prominent pews in churches. These
rights as well as the right to testify were not necessary
incidents of freedmen, nor did the denial of them render
any one a slave. If Congress had the power to confer
these privileges it could equally be claimed that it had the
power to grant the suffrage.^" The laws of Indiana at that
time did not allow negroes to sell spirituous liquors or to
attend the common schools.

One of the most significant speeches made on the bill
was the one delivered by Mr. Bingham, one of the ablest
members of Congress. He was also one of the Radical
leaders and a member of the Reconstruction Committee,
but his objections to the bill were of such a character that
he could not support it. Like Delano, Raymond, and other
Republicans, his objections were based on constitutional
grounds, but unlike Delano and some others he was unwill-
ing to give his vote to a measure that he thought was uncon-
stitutional.

Again, his position was entirely different from that of
Cowan, Norton, and Van Winkle in the Senate, and of

" " In my opinion, if we adopt the principle of this bill, we de-
clare in effect that Congress has authority to go into the States
and manage and legislate with regard to all the personal rights
of the citizen — rights of life, liberty, and property. You render
this Government no longer a Government of limited powers; you
concentrate and consolidate here an extent of authority that will
swallow up all or nearly all of the rights of the States with re-
spect to the property, the liberties, and the lives of its citizens."
Ibid., Appendix, p. 158.

" Ibid., p. 1265.

"• Ibid., p. 1268.

Freedmen's Bureau and Civil Rights Bills. 31

Raymond, Latham, and others in the House, since he was
not a Johnson Republican, but one of the extreme Radicals.
He did not, however, like many Radicals, permit his par-
tisanship to control his judgment and action when it came
to a question of constitutional power. He was earnestly
desirous of accomplishing the objects aimed at by the bill,
but thought that it transcended the Federal jurisdiction,
since the questions about which it undertook to legislate
■v^ere left by the Constitution entirely with the States. The
great need of the Republic was the enforcement of the
Bill of Rights (the first eight Amendments), but this could
not be done by the Federal Government, he declared, since
those Amendments had been uniformly held to be limita-
tions upon the United States. The power to punish of-
fenses against life, liberty, or property was one of the re-
served powers of the States.

Mr. Bingham also took the position that the term " civil
rights " was very comprehensive and that it embraced every
right that pertained to a citizen as such, including political
rights. Mr. Trumbull had admitted to him that the fran-
chise of office was a civil right according to all the authori-
ties. He thought the evils, which the bill sought to remedy
should be remedied by a constitutional amendment expressly
prohibiting the States from such an abuse of power, and
not by an arbitrary assumption of power by Congress.

The Amendment which he had advocated would give
Congress the power, he said, to punish all violations of the
Bill of Rights by state officers."^ He spoke only thirty min-
utes, but within that short time made one of the strongest
speeches against the bill — a speech full of sound reasoning
and good legal arguments, but his auditors were in no mood
to be governed by reason, however strongly presented or no
matter what its source.

His position on this very important bill, as well as the
arguments used by him, should be kept in mind on account
of the aid to be derived from them in interpreting the first
section of the Fourteenth Amendment, since he was the

■" Ibid., pp. 1291-92.

32 Adoption of the Fourteenth Amendment.

author of that section. At a first glance one would be

inclined to think that he was inconsistent in voting for the

Freedmen's Bureau Bill and then opposing the Civil Rights

Bill, since they were so similar, but there was this marked

difference which accounts for his votes on both measures.

The former bill was to apply only to the insurrectionary

States and was to cease upon the restoration of those States

to their constitutional relations with the Union, while the

latter was to apply to all the States and was intended to

be permanent.

i Mr. Shellabarger, of Ohio, was among the Republicans

J' who had doubts as to the constitutionality of the bill, though

I he said he had resolved his doubts in favor of the security

\and protection of the American citizen and would vote for

^e bill.^2 . ^_____

Even Mr. Wilson, who had charge of the bill in the
House, admitted in his opening speech that precedents, both
judicial and legislative, were found in sharp conflict with
. its provisions. In his closing speech, he replied to the
objections raised by Mr. Bingham, maintaining that state
laws in regard to schools, juries and suffrage would not
be set aside by the bill if properly construed, since it only
embraced those rights which belonged to citizens of the
United States as such and did not attempt to regulate those
rights which rightfully depended upon state laws and regu-
lations. He denied the contention of Mr. Bingham that an
amendment to the Constitution was necessary to enforce
the Bill of Rights, since the possession of the rights by citi-
zens necessarily conferred by implication the power upon
Congress to provide by appropriate legislation for their
protection.

If a State undertook to deprive any citizen of life, liberty,
or property without due process of law, Congress had the
power to provide a remedy for his protection.^^ His posi-

" Ibid., p. 1273.

""I find in the Bill of Rights which the gentleman (Mr. Bing-
ham) desires to have enforced by an amendment to the constitu-
tion that 'no person shall be deprived of life, liberty or property
without due process of law.' I understand that these constitute

Freedmen's Bureau and Civil Rights Bills. 33

tion was directly opposed to the ruling of the Supreme Court
of the United States, since it had been repeatedly held that the
Bill of Rights or the first eight Amendments were limitations
upon the Federal Government and by no means limited the
powers of the States. Property had been taken by the States
without due process of law, and there was no remedy said \^.
the Court in the case of Barron vs. Baltimore, His posi-
tion was thus untenable, and since he stated that the pur-
pose of the bill was to secure the rights enumerated in the
Bill of Rights, it becomes clearly evident that, according
to the previous rulings of the Supreme Court, the bill was
unconstitutional. His speech furthermore strengthens the
presumption that Mr. Bingham was striving to make the
rights and privileges of the early Amendments applicable to
the States as well as to the Federal Government. Mr. Wil-
son may have given the opinion of the Judiciary Committee
and of many members of Congress, but his arguments fall
far short of those produced by Mr. Bingham, especially
when considered from the point of view of constitutional
law. In fact, his arguments, as well as those of many of
the adherents of the bill, were based more upon what ought
to be than upon what could constitutionally and legally
be, and so were more of the nature of political theory and
philosophy than of constitutional law.

Mr. Latham, a Republican Representative from West Vir-
ginia, held that Congress could not put its interpretation "^
upon the Constitution, this being a matter belonging to the
judiciary, though it could give its interpretation to its own
acts. This seems perfectly true, for otherwise the Eleventh
Amendment would have been unnecessary, and accepting this
statement it becomes apparent that Congress could not in-
terpret the Thirteenth Amendment since it would be a ques-
tion for the Courts to decide just what rights were con-

the civil rights belonging to the citizens in connection with those
which are necessary for the protection and maintenance and per-
fect enjoyment of the rights thus specifically named, and these
are the rights to which this bill relates, having nothing to do with
subjects submitted to the control of the several States." Ibid., p.
1294.

34 Adoption of the Fourteenth Amendment.

ferred by it. Congress had the power, in fact it had already
exercised it, to declare that all, regardless of color or race,
should have an equal right to testify in the Federal Courts,
an equal participation in all the rights and privileges which
Congress might constitutionally regulate, but he denied that
Congress had the right to interfere with the internal policy
of the States so as to define and regulate the civil rights and
immunities of the inhabitants thereof.

His objections were not limited to the questions of its con-
stitutionality alone, for he considered it one of a series of
measures, which, if adopted, would change the whole policy
as well as the very form of our Government " by a complete
centralization of all power in the National Government."'^*

We have seen that there was apprenhension among Re-
publicans, as well as among the Democrats that the term
"' civil rights " might be construed to confer suffrage, and
in order to remove all doubt on that score, Mr. Wilson, re-
iterating that it did not alter his construction of the bill,
added a new section by way of amendment that the bill
should not be so construed as to affect the laws of any State
concerning the right of suffrage. The amendment was
agreed to without division or comment.^'^ Mr. Bingham
had also moved that the Committee be instructed to strike
out " and there shall be no discrimination in civil rights or
immunities among citizens of the United States in any State
or Territory of the United States on account of race, color,
or previous condition of servitude." This motion was de-
feated by a vote of 113 to 37. It is rather singular that not
a Democrat voted to instruct the Committee to strike out
the above clause. The bill was then recommitted without
instructions by a vote of 82 to 70.^®

It is worthy of notice that, although Mr. Bingham's
motion was defeated, the Committee nevertheless reported
back the bill with the identical changes that he had pro-
posed or suggested. Mr. Wilson, in reporting the bill with

** Ibid., pp. 1295-96.

"Ibid., p. 1 162, also Blaine's "Twenty Years of Congress," II,
p. 175.
"Ibid., pp. 1291 and 1296.

Freedmen's Bureau and Civil Rights Bills. 35

this amendment, said it did not materially change the bill,
but that some feared the deleted words might give warrant
for a latitudinarian construction not intended. If this were
true, why had the proposal of Mr. Bingham been objected to
so seriously? It is impossible to say just why the words
were struck out, though it might be inferred that it was done
in order to secure the passage of the bill, for there might
have been considerable opposition to the clause which had
not been expressed. Thirty-seven Republicans had more-
over voted to that effect, and this of itself must have had
some weight. The. amendment stating that suffrage was
not to be regarded as a civil right or immunity became un-
necessary after those words were struck out.^'^

The final vote on the passage of the bill was iii to 38.
The following Republicans voted with the Democrats against
jthe passage of the bill : Messrs. Bingham, Latham, Phelps,
W. H. Randall, Rousseau, and Smith. All of these, ex-
cept Mr. Bingham, were from the border states of Ken-
tucky, West Virginia and Maryland, where there was a
considerable number of negroes. Mr. Bingham's objection
to the bill was based entirely upon constitutional grounds.
Mr. Raymond would probably have voted against the bill
had he been present.

To show the view that the minority had of the bill to the
last, Mr. LeBlond moved, after the bill had passed, to 1
amend its title by making it read : " A bill to abrogate the |
rights and break down the judicial system of the States."

The amendments made in the House were concurred in
by the Senate without division on March 15.

On March 27, the President returned the bill with his
^objections to the Senate, where it had, originated^ He gave
his objections ad seriatim to each section, using many of the
arguments which had been urged in Congress against it, and
holding that it was both unnecessary and unconstitutional
and that it discriminated between negroes and intelligent
foreigners. He characterized it as a stride towards the con-
centration of all legislative power in the National Govern-

" Ibid., pp. 1366-67. /

36 Adoption of the Fourteenth Amendment.

'ment.^^ His arguments were calm, clear, and temperate.
The galleries and floor of the Senate Chamber were crowded
when the veto message of the President was received, but
the reading of it was postponed for some time, for the e€tse
of Senator Stockton was being considered.^' It is rather
significant that his case was not finally disposed of until it
was definitely known that the ..Civil Rights Bill had been
.vetoed,

" Ibid., p. 1679. Referring to the rights secured by the first sec-
tion, he said, " a perfect equality of the white and colored races
is attempted to be fixed by Federal law in every State of the
Union, over the vast field of state jurisdiction covered by the
enumerated rights. In no one of these can any State ever exer-
cise any power of discrimination between the different races. In
the exercise of state policy over matters exclusively affecting the
people of each State, it has frequently been thought expedient
to discriminate between the two races. By the statutes of some
of the States, northern as well as southern, it is enacted, for in-
stance, that no white person shall intermarry with a negro or
mulatto." He stated that he did not believe that the bill would
annul state laws in regard to marriage, but that if Congress had
the power to provide that there should be no discrimination in the
matters enumerated in the bill, then it could pass a law repealing
the laws of the States in regard to marriage.

He then continued: "Hitherto every subject embraced in the
enumeration of rights contained in this bill has been considered
as exclusively belonging to the States. They all relate to the in-
ternal policy and economy of the respective States. If it be
granted that Congress can repeal all state laws, discriminating be-
tween whites and blacks in the subjects covered by this bill, why,
it may be asked, may not Congress repeal, in the same way, all
state laws discriminating between the two races on the subjects
of suffrage and office."

Speaking of the general effect of the bill, he declared it inter-
fered " with the municipal legislation of the States, with the
relations existing exclusively between a State and its citizens or
between inhabitants of the same State — an absorption and as-
sumption of power by the General Government which, if ac-
quiesced in, must sap and destroy our federative system of limited
powers, and break down the barriers which preserve the rights of
the States. It is another step, or rather stride, towards centrali-
zation, and the concentration of all legislative powers in the Na-
tional Government.

" The tendency of the bill must be to resuscitate the spirit of re-
bellion, and to arrest the progress of those influences which are
more closely drawing around the States the bonds of union and
peace."^ He stated that he was ready to cooperate with Con-
gress in any legislation that was necessary to secure the civil
rights to all persons " under equal and imperative laws, in con-
formity with the provisions of the Federal Constitution."

" Ibid., p. 1679, also McPherson's Scrap Book, " The Civil Rights
Bill," p. 28.

Freedmen's Bureau and Civil Rights Bills. 37

Unlike the action on the veto of the Freedmen's Bureau
Bill, the veto of this bill was not taken up for discussion
until AprTT 4. The cause of delay was partially the death
of Senator Foote, of Vermont, who died on the morning of
the 28th. The Senate, out of respect, adjourned until April
2. The veto message would, it seems, have been the regular
order on that day, but there was no mention of it either on
that day or the day following. While no reason was given
for this delay, a careful study of the record reveals it.
Time had to be given for Mr. Foote's successor to be ap-
pointed and to reach the city, for every vote was needed. It
was also desirable that Mr. Stockton's successor should be
on hand.

The veto was the occasion of a vigorous debate in the
Senate. Mr. Trumbull made an elaborate speech, consid-
ering the veto in. detail and maintaining the constitution-
alitj and necessity of the bill. He was followed the next
day by Reverdy Johnson who made an able speech in sup-
port of the veto, holding that if Congress could legislate for
the black, it could for the white, thereby destroying the
reserved rights of the States. The first section of the bill,
in his opinion, struck at the legislative authority of the
States ; the second section struck at their judicial depart-
ments, and thus prostrated the States at the footstool of the
Federal power.*'" Mr. Wade made a very defiant speech in
opposition to the veto.

During the debate an unusual incident showed the temper
which had been engendered in the Senate by the veto and
the debate on it. Late in the evening of April 5, Mr.
Trumbull intimated his purpose or willingness to have the
vote taken if there was no further debate. Mr. Cowan sug-
gested that an hour be agreed upon to take the vote the
next day, since two Senators, Messrs. Wright and Dixon,
were very sick and could not with safety come out at night.
Messrs. Guthrie, Hendricks and others strongly insisted
upon the point of courtesy. Mr. Wade spoke very bitterly
in reply, saying that he was thankful that God had stricken

••Ibid., p. 1761.

38 Adoption of the Fourteenth Amendment.

a member so that he could not be present to sustain the
veto.^^ Mr. McDougall rebuked him with deserving sever-
ity. The Senate adjourned, however, by a vote of 33 to
12, thus failing to sustain Mr. Wade's angry position.®^

Mr. Davis reiterated his objections to the bill, claiming
that the distinctions or discriminations made between ne-
groes and whites on steamboats, in railway cars, in hotels
and in churches, would be swept aside by the bill.^^ Messrs.
Doolittle, Saulsbury and McDougall also spoke in support
of the veto.

The bill passed the Senate, notwithstanding the objections
of the President, by the necessary two thirds vote, on April
6, 1866. The final vote was 33 to 15.^* - -"

Mr. Wright, of New Jersey, who had been sick for some
time, was brought into the Senate chamber for the purpose
of sustaining the veto. Mr. Dixon, of Connecticut, the only
Senator not voting, was also sick, but would have been
brought in had it been seen that his vote would sustain the
veto. Mr. Stockton's place had not yet been filled, though
strenuous efforts had been made by Thaddeus Stevens and
others to have this done, for there was fear among the Radi-
cals that the veto might be sustained. Had Mr. Stockton re-
tained his seat, with the vote of Mr. Dixon, the bill would
not have been passed. Mr. Morgan, who had sustained the
veto of the Freedman's Bureau Bill, was applauded when he
voted for the bill, for he was the only one who was regarded
as at all doubtful.

Mr. Edmunds, who had been appointed to fill the va-
cancy created by the death of Mr. Foote, took his seat April
5, the day before the vote was taken. The fear on the part
of the Republicans that the veto might be sustained made
them resort to every possible means to obtain their end.
Mr. Stockton, who had been duly elected Senator from New

'* " I will tell the President and everybody else that if God Al-
mighty has stricken one member so that he cannot be here to
uphold the dictation of a despot, I thank him for His interposition
and I will take advantage of it if I can." Globe, p. 1786.

" Ibid., p. 1786.

•"Ibid., Appendix, p. 183.

"Ibid., p. 1809.

Freedmen's Bureau and Civil Rights Bills. 39

Jersey, but against whose election certain members of the
New Jersey Legislature had protested, was now slated for
rejection. His credentials had been passed upon by the
Judiciary Committee, of which Mr. Trumbull was Chair-
man, and his election declared to be legal.

The Committee had made their report January 30, Mr.
Clark, of New Hampshire, being the only member of the
committee who did not approve the report. No action what-
ever had been taken upon the report and there is little prob-
ability that Mr. Stockton's right to his seat would ever have
be'en called in question had the Republican majority been
sufficient without unseating him, for otherwise the delay
in regard to his case cannot be accounted for. When it
was seen that the Civil Rights Bill was in great jeopardy,
and that the Radical plan of reconstruction would conse-
quently be endangered, it was decided to get rid of Stock-
ton. So on March 22, his case was brought before the
Senate. This was four days after the Civil Rights Bill had
been placed in the hands of the President. Many Radicals
voted to permit Mr. Stockton to keep his seat, and had his
colleague, Mr. Wright, been present he would have retained
it. Mr. Wright had paired with Mr. Morrill, of Maine, on
the question before he left the city, but the latter, after giv-
ing Mr. Stockton notice that he considered the pair at an
end, voted. To show, however, that he had compunctions
about it, he did not vote when his name was first called, but
after the roll call had been completed, and seeing it within
his power to decide the question, pressure having been
brought to bear by Sumner and others, he voted. The final
vote by which Mr. Stockton was unseated was taken on
March 27, after the veto message of the bill had been re-
ceived, but before it was read. Strenuous eflforts were made
to postpone final action until Mr. Wright could get to the
city, but these efforts were futile.

.No debate was -permitted in the House, the bill passing
that body on the ninth of April by a vote of 122 to 41 ».
The following Republicans, Noel, Raymond and Whaley, in

40 Adoption of the Fourteenth Amendment.

addition to those who voted with the minority before, voted
to sustain the veto. ,

/^ Mr. Colfax, the Speaker, requested the Qerk to call his\
/ name, his vote being greeted with applause. His announce- \
/ ment that the bill, the objections of the President to the i
I contrary notwithstanding, had become a law, was received j
\ with great applause, both by members of the House and the/
\ throng in the galleries, the hisses of a few sorrowful soldiej«
being unnoticed in the general joy.^^

We may conclude, then, that many of the j,liles.t..men in
Congress, including strong men in Ifie Republican party
I like Doolittle, Cowan, Raymond, and Bingham, thought
that Congress was going beyond its power in passing the
Civil Rights Bill. All those who opposed the bill, not only
took the position that it was unconstitutional, but, mpsi,"of
tlieiTr thought it unwise and Jnexpedient_ Many even of
those who supported it admitted that it undertook to regu-
late affairs that had uniformly been regarded as belonging
exclusively to the States. While not regarding the bill as
conferring the right of suffrage, or as interfering with the
state laws as to the inter-marriage of the races, though many
strong legal minds thought it would have that result, it can-
not be questioned but that it conferred, or proposed to con-
fer, upon the freedmen rights which would greatly interfere
with state legislation. Many believed that the negro would
be entitled to sit on juries, to attend the same schools, etc.,
since, if the States undertook to legislate on those matters, it
might be claimed that he was denied the equal rights and
privileges accorded to white men. It does not appear that
all of these contentions were specifically contradicted. It
would seem reasonable to suppose that if the bill should
prove to be constitutional that these rights could not be
legally denied them.

Having seen what Congress thought of the bill, it might
be well to see what the people thought of it — what rights
and privileges they regarded as being conferred by it. As
is to be expected, we find the press of the country divided

"Ibid., p. 1861, and N. Y. Herald, April 10, 1866.

Freedmen's Bureau and Ciznl Rights Bills. 41

on it, largely along political lines, just as was the case in
Congress. The Southern press was naturally hostile to the
legislation. The Southern mind had long been taught to
"regard the Federal Government as one of very limited
powers, and any legislation which tended to increase that
power at the expense of the States, would obviously be con-
demned. Consequently we find the Southern press de-
nouncing the bill as infringing the rights of the States and
centralizing all or very nearly all power in the Central Gov-
ernment.^® Furthermore, the South was the section which
would be affected by it and that section would never con-
sent to any legislation that tended towards equality with
the negroes.

Many papers at the North took a similar view, among
them being the World, the Herald, and the Times. The
Cincinnati Commercial also threw the weight of its edi-
torial columns upon this side. All of these except the World
were Republican papers. The press, even more than mem-
bers of Congress, gave a broad and liberal meaning to
the bill, saying that under cover of " full and equal rights "
state laws forbidding amalgamation would be set aside and
that negroes could not be kept out of theaters, churches,
etc.®^ The Cincinnati Commercial, a conservative Republi-
can paper, thought that the bill was unconstitutional, in that
it would open the schools, hotels, churches, theaters, con-
cert halls, etc., to negroes on the same terms with white
people, and that it would make it a crime to refuse them
these rights.®^

This was also the opinion of the National Intelligencer of
Washington, the so-called Administration organ.

The Tribune, of which Greeley was the editor, was a
strong supporter of the measures and policies of the Radi-
cals, but had very little to say about the Civil Rights Bill
further than that it was a just measure and should be
adopted. It never denied the contention of many that it

"Charleston (S. C.) Courier, April 11, 1866.
"N. Y. Herald, March 29, 1866.
''March 30, 1866.

42 Adoption of the Fourteenth Amendment.

would curtail the rights of the States. The New York
Evening Post, a Republican paper, advocated the bill, ap-
parently thinking that it would guarantee free speech and
free press, which, in its opinion, was badly needed in the
South. The right to hold office and to serve on the jury
was not considered as among the rights secured by the
bill,*® but the right peacefully to assemble, to petition, to
have freedom of movement, to have impartial protection of
life, person and property were.''*' It was also held that the
right to keep fire-arms would be secured to the negroes on
the same terms as to whites.''^^

It was declared by a strong opponent of the bill that every
argument in its favor savored of centralization, and that
the President had properly characterized it when he said it
was a great stride towards consolidation. State laws against
miscegenation would be made void by it, the ministers or
magistrates refusing to marry those of different races being
made subject to fine and imprisonment. If the bill became a
law the state governments would practically be aboli&bed ;
if Congress could confer civil rights, it could with equal
propriety confer political rights, since to do either required
an invasion of the province of the States.^^

The statement that miscegenation would not only be pos-
sible under the bill, but that state laws against it would be
nullified, may seem rather extreme, though we have already
seen that this view was taken by some while the bill was be-
fore Congress. If these statements were limited to oppon-
ents of the bill and to partisan newspapers, we might discard
them at once as preposterous. There are, however, facts
of greater weight than these mere statements. A negro
preacher married a white man and a negro woman in the
State of Tennessee, for which he was fined $500, while the
parties to the marriage contract were imprisoned, being
unable to pay the fine of $50, which was imposed on each
of them. The Tribune, after recounting this, expressed the

~N. Y. Post, March 28, 1866.
"Ibid., March 30 and April 3, 1866.
"Ibid., April 7, 1866.
"World, March 28, 1866.

Freedmen's Bureau and Civil Rights Bills. 43

desire that the case be brought before the Supreme Court of
the United States for adjudication under the Civil Rights
Bill.^^ A case somewhat similar to this, and said to be the
first case of its kind in Mississippi, occurred at Jackson in
June, 1866. The parties were tried, found guilty, and sen-
tenced to the county jail for six months, with fine of $500
each. The military officers looked on, but offered no inter-
ference.'^* The Civil Rights Bill was probably the basis of
both of these incidents.

One writer declared that Senator Trumbull's speech on
the veto of the bill affirmed a principle " pregnant with dan-
ger to the rightful authority and jurisdiction of the States."
" Instead of overthrowing the vital objection urged in the
veto rnessage," this writer declared, " Mr. Trumbull in
reality conceded all that it involves," since he neither denies
nor shows that the bill does not include and cover subjects
in regard to which the States have up to this time exclu-
sively legislated.^^

In the Cincinnati Commercial, it was argued that the bill
was more deserving of the veto than the Freedmen's Bureau
Bill, since it was an attempt to take from the States the right
reserved to them by the Constitution to enact and enforce
their own police regulations, and that Congress did not
have the power to declare state laws null and void, this
being a question for the Courts to determine.'^^ Such legis-
lation as the Civil Rights and Freedmen's Bureau Bills was
declared to be revolutionary in its character from the fact
that it took from the local authorities and legislators mat-
ters that had uniformly been referred to them.'^''^

The bill was regarded as tlie death blow to the States in
that the state judiciary would practically be abolished by it,
since the state courts could only act under powers granted
by the Federal Gove:nimS]tlt.--It-was also asserted that the

" N. Y. Times, July 16, 1866, under caption : " Amalgamation in
Tennessee."
"Gamer, Reconstruction in Mississippi, p. 114.
"Editorial in Times, April 7, 1866.
'• March 27, 1866.
"Ibid., March 29, 1866.

44 Adoption of the Fourteenth Amendment.

measure carried Federal interference into privacies into
which even the most local laws never entered, for the cus-
toms of a community were made amenable to Federal
authority — an authority entirely foreign to the community.
At a public sale of church pews, it was declared negroes
could not be prevented from purchasing, while a white man
could if he were objectionable to the church or the customs
of the church, since such refusal would not be made on
account of color. The same would be true, it was urged,
in regard to hotels and other places of accommodation, for
if a negro was refused admittance, the proprietor would
be subject to both fine and imprisonment, while a white man
could only recover civil damages however wrongfully he
might have been refused accommodations.'^*

A mass meeting of the citizens of Carroll County, at
Westminster, Maryland, May 19, 1866, adopted a series of
resolutions, one of which was a declaration that the Civil
Rights Bill was unconstitutional, and that if carried into
effect would upheave the foundations of social order.
These resolutions were sanctioned both by the Republicans
and Democrats.'^®

The belief that the bill conferred upon the negroes the
right of attending churches and theaters was not limited to
the so-called loyal States, for this opinion was also held in
the South, and the desire was expressed that, if it was to
be enforced in this respect, it be first enforced in Boston.
" What that city has so effectually sowed," it was declared,
" let it reap ! " *° The view was also held in the South that
the Civil Rights Bill not only infringed, but that it de-
stroyed, the rights of the States by concentrating all power
in the Central Government, by making the state judiciary
amenable and subservient to Federal authority, and by con-
ferring upon Congress powers unknown to the original law
of the country.*^ A view of the bill not generally taken
by the Southern press was that taken by the Mobile Regis-

" National Intelligencer, March 24, 1866.
"N. Y. Herald, May 26, 1866.
*• Atlanta Intelligencer, May 3, 1866.
^ Charleston Courier, April 2, 1866.

Freedmen's Bureau and Civil Rights Bills. 45

ter. This journal did not think that the bill would inter-
fere with the regulations and customs of steamboats, rail-
roads, street cars, theaters, or other places of public resort.®^

It is apparent, from this examination, that many of the
leading papers of the country, including some of the prin-
cipal Republican papers, regarded the Civil Rights Bill as
a limitation of the powers of the States, and as a step
towards centralization, in that it interfered with the regu-
lation of local affairs which had hitherto been regulated by
state and local authorities or by custom. This opinion was
. held in the North as well as in the South, There also seems
to have been a general impression among the press that
negroes would, by the provisions of the bill, be admitted,
on the same terms and conditions as the white people, to
schools, theaters, hotels, churches, railway cars, steam-
boats, etc.

The bill enumerated certain specific rights, such as the
right to testify, to sue, be sued, etc., but it was generally
felt that more than these enumerated rights were conferred,
and that under its provisions negroes could not be kept out
of the jury-box, and that they were to have equal rights
with the whites in every respect, even to the right of inter-
marriage. The right of intermarriage, however, was not
so generally held to be conferred by the bill, but the other
opinions, it seems, were clearly warranted, both by the con-
text of the bill and by the declarations of some of its
supporters.

What the papers gave as their opinion must necessarily
have been the opinion of large numbers of the people.
There is much evidence to substantiate this conclusion, for
almost immediately after the passage of the bill over the
President's veto, efforts were made by the negroes to secure
these rights.

" Quoted in Cincinnati Commercial, April 21, 1866. The Mem-
phis Argus practically held the same opinion as the Charleston
Courier, stating that it consolidated all power in the hands of
Congress. The Cincinnati Commercial of April 21 quoted the
Argus on this point, but did not deny its interpretation of the bill,
merely saying that a part of the bill was similar to the fugitive
slave law.

46 Adoption of the Fourteenth Amendment.

About two weeks after the bill had passed Congress, two
so-called tfeeclmen," In order to see whether the bill had
really benefited them in a practical way, went to a sleeper
and demanded accommodations as a train was about to
leave Washington for New York. The demand was re-
fused them at the request of the other passengers fall said
to be New Englanders), who threatened to leave the car if
the negroes were admitted. The negroes thereupon threat-
ened prosecution under the Civil Rights Bill and took their
departure. ^^ Two or three incidents occurred in Baltimore
at an earlier date. A negro asserted the right to ride in a
railway car on the York Road among the other passengers,
and when compelled to go to the front platform where col-
ored persons were allowed to ride, noted the number of the
car, probably to bring suit, and departed. On the same
night, another negro, James Williams, appeared at the ticket
office of the Holliday Street Theater, and asked for a ticket,
which was of course refused. The next night another
negro went to a public house and asked for a drink, and on
the refusal of the proprietor to sell him the liquor, went
away to file complaint at the station, claiming that " as a
citizen he was entitled to the same privileges as white
men."** Before the middle of May the Baltimore & Ohio
Railroad Company had a suit pending against it for refus-
ing to sell a negro a first-class ticket. It was also stated
that several suits had been brought in Baltimore and other
parts of the country against persons refusing to admit
negroes to entertainments from which they were at that
time excluded by state or municipal laws.*^ The editor of
the National Intelligencer, commenting upon these facts,
observed that if the bill was constitutional it would be diffi-
cult to see how negroes could be debarred, except at the
risk of a suit, from going into hotels, theaters, restaurants,
billiard rooms, or any licensed house where men have a
legal right to accommodations. Towards the last of April

^ Cincinnati Commercial, April 30, 1866.

" National Intelligencer, April 24, 1866, also Baltimore American,
April 16, 1866.
■"Ibid., May 16, 1866.

Freedmen's Bureau and Civil Rights Bills. 47
the negroes of New York began to " feel their civil rights "

T^ _ ''■' i.-»rfl, ^ JMjr I " II I IMI ■ ■UBII ■ I ' ii ~i Wit

— foiir or nve going into a fashionable restaurant, sitting
down among white ladies and gentlemen, and appealing to
the Civil Rights Bill to protect them from ejectment.^^
The editor referring to this incident said the same game
would probably be tried at the churches, theaters and other
resorts, but that after some annoyance and inconvenience,
the negroes would be quietly regulated by public opinion.
It was also stated®^ that the negroes of Boston proposed to
contest the power of theater managers, church wardens,
etc., to exclude them from mingling with the whites in an
" equality " of position. They evidently carried out their
intentions, but were excluded from the theaters, since only
a nominal fine was imposed by the law which had been
passed on that subject.^* There were several occurrences
in the North and West where negroes claimed the right to
attend places of amusement to the discomfiture of white
ladies. The editor added that the South would have to
endure the same thing, though not responsible for it.*^

The first suit under the Civil Rights Bill was in Indiana,
and~Tii this case the bill was held constitutional. This was
the case of Barnes vs. Browning. Barnes, a negro, sued
Browning, a hotel proprietor, for wages, and the plea
offered by Browning was that Barnes was not entitled to
sue in the courts of Indiana, since he had come into the
-"State contrary to the Constitution of the State. There was
a provision in the Indiana Constitution which prohibited
negro immigration and declared null and void any contracts
made with such persons. There was also a law to enforce
this provision, which was to the effect that no negro coming
into the State could make or enforce contracts.

Barnes demurred to the answer of the defendant main-
taining that the Indiana law and Constitution in that respect
were void, because: (i) It was opposed to the spirit and
letter of the Constitution of the United States. (2) It was

"N. Y. Herald, April 28, 1866.
"Atlanta Intelligencer, April 18, 1866.
"* Cincinnati Commercial, May 2, 1866.
"Atlanta Intelligencer, April 26, 1866.

48 Adoption of the Fourteenth Amendment.

in conflict with the 13th Amendment. (3) It was void
under the first section of the Civil Rights Bill. The lower
court sustained the demurrer, and the case was brought
before Judge Test of the Circuit Court by way of appeal.
He sustained the decision of the lower court, though basing
his decision on the 13th Amendment, since the Civil Rights
"Biir had not been officially promulgated."" The suit was
no doubt inspired by the passage of the bill, for it was
instituted April ii, only two days after its passage, and
reference being made to it in reply to the plea set up by
the defendant.

This decision was rendered at LaFayette, Indiana, April
14, 1866, just five days after the passage of the bill by Con-
gress. Another case very similar to this one was decided
by the Supreme Court of Indiana at its May term. Smith,
a negro, sued Moody to collect a promissory note. The
same plea was set up in this case as in the other, the lower
court deciding in favor of Moody. The Supreme Court,
however, reversed this decision, holding that the Civil
Rights Bill had nullified the provision of the Indiana Con-
stitution prohibiting negroes from coming into the State
or making contracts."^ This was probably the first decision
of the highest court in any State in which the Civil Rights
Bill was involved.

Probably the second case in which the measure was
brought before the Courts was at Annapolis, Maryland.
Here, on April 17, a negro was introduced as a witness.
The State's Attorney was greatly surprised at this, saying
that there was no authority for it, but it was claimed that
the Civil Rights Bill had given it."^ Soon after the Four-
teenth Amendment had been submitted to the States, th,e
C^ief Tustice of the Court of Appeals of Maryland held
that the Civil Rights Bill was constitutional. On June 22
one~Somers assaulted a negro and was brought before a
justice of the peace. His counsel held that the negro could

'" McPherson's Scrap-^book, "The Civil Rights Bill," pp. 91-92,
also the Chicago Republican, April 17, 1866.
" 26 Indiana Reports, p. 299.
"Baltimore American, April 20, 1866.

Freedmen's Bureau and Civil Rights Bills. 49

not testify, but the justice held that the state law had been
abrogated by the Civil Rights Bill. In default of bond,
Somers was put in jail. Effort was made to secure a writ
of habeas corpus, but Judge Bowie upheld the decision of
the justice, saying that the bill was constitutional in regard
to the right to testify. Since the other provisions of the
bill were not involved, he did not undertake to say whether
they were constitutional or not."^ More than a month
before this Judge Thomas, of the Circuit Couri: ot Virginia,
in a case before him at Alexandria, declared that the Civil
Rights Bill was unconstitutional and that negro evidence
could not be admitted, since the state law forbade it in civil
cases in which white men alone were parties. In his opin-
^ion Congress did not have the power to impair the right of
the States to decide what classes of persons were competent
to testify in their Courts.**

The first case which we have found where the constitu-
tionality of the bill was decided in the Federal courts is that
of the United States vs. Rhodes, decided by Justice Swayne,
of the Supreme Court, sitting as a Circuit Justice. On May
I, 1866, the home of Nancy Talbot, a negress, was entered
by white men named Rhodes for the purpose of robbery.
She was not allowed to testify against them in the Kentucky
Courts. The Federal Court had jurisdiction under the Civil
Rights Bill. Justice Swayne said the bill was remedial and
should be liberally construed ; that the Thirteenth Amend-
ment was the first Amendment which trenched upon the
power of the States, the others limiting the power of the
Federal Government ; that the Congress succeeding the one
which proposed that Amendment had passed the bill, many
of the members being the same, and that this fact was not
" without weight and significance." The bill was declared
to be constitutional in all its provisions.®"

A negro was indicted in Memphis, Tennessee, for keeping

"* Baltimore American and N. Y. Times, July 7, 1866.
** Annual Cyclopedia, 1866, p. 765. Also Eckenrode, Political
Reconstruction in Virginia, p. 50.
* Abbott (U. S.), 28, and 37 Federal Cases, 785.

50 Adoption of the Fourteenth Amendment.

a tippling house and billiard room contrary to state law.
His attorneys claimed that the state law was annulled by
the Civil Rights Bill, but the State's Attorney declared that
he would not obey or observe that bill, since it was uncon-
stitutional.^* The Criminal Court of the city, however, sus-
tained the contention of the defendant that the state law was
null and void because in conflict with the Civil Rights Bill.
An appeal was taken to the Supreme Court of the State.*^

Judge Gilpin, Chief Justice of Delaware, held that the
Civil Rights Bill was void and inoperative in so far as it
assumed to regulate the rules of evidence, etc., of state
courts. This decision was rendered in November, 1867,
though prior to this he seems to have accepted that part of
the bill which provided that a different punishment could not
be inflicted on account of color, without, however, passing
on the constitutionality of the bill. It may be proper to add
that he was a Republican.®*

Several arrests were made for refusing to receive negfro
testimony. Five magistrates of the Corporation Court of
Norfolk were arrested for this, the United States Commis-
sioner holding that they had violated the Civil Rights Bill
and binding them over for trial at the May term (1867) of
the District Court.*® ' Judge Thomas, who refused to re-
ceive negro testimony at Alexandria, was arrested and taken
to Richmond, where he was released on his own recognizance
in the sum of $1,000 to appear at the November term of the
Court.^°" Judge Magruder, of Maryland, was several times
arrested for a similar offence. John Hopwood, a Justice of
the Peace, of the same State, was also arrested.

The Maryland Legislature passed a law to reimburse any
magistrate or judge for costs and fines to which they were
liable for rendering decisions adverse to the Civil Rights Bill.
It was stated in the bill that this was done for the purpose

••Baltimore American, April 21, 1866. (From Memphis Argus.)
"McPherson's Scrap-book, "The Civil Rights Bill," pp. no

and 119.
" Ibid., p. 149.
Ibid., p. 134.

• ^°«Ibid., p. 136.

Freedmen's Bureau and Civil Rights Bills. 51

of making the judiciary free — to enable the judicial officers
to render decisions according to their views of the law.^"^
Judge Abell, of Louisiana, was arrested July, 1866, being
charged with having " wickedly, wilfully, and with malice
aforethought " declared the Civil Rights Bill unconstitu-
tional. The decision for which he was arrested was made
May 9, 1866. In this decision he declared that it aimed to
strike down the independence of the States, to sap the
foundation of Republican Government, to override the laws
of the States, and to obliterate every trace of the independ-
ence of the state judiciaries.^*'-

Chief Justice Hardy, of Alabama, declared that the bill
was unconstitutional, confirming the sentence of the lower
court which had convicted a negro for carrying fire-arms
contrary to state law.^°^ J^dge Harberson, of Kentucky,
held the bill unconstitutional, as did also the city judge of
Louisville, in the same State. The former declared that the
right to testify was not essential to freedom as was shown by
the action of the free States in denying that right to free
negroes for eighty years in cases where whites were involved.
He, therefore, decided that the bill was not " appropriate
legislation " under the Thirteenth Amendment, and that if it
was, it could not apply to those who were free before the
Amendment was ratified.^"* This was practically the position
taken by Judge Krecket, of the United States District Court,
January 29, 1867, for he held that the Civil Rights Bill was
intended to protect negroes who had been slaves, and did not
include white persons at all.^"'' It was stated that the bill
had been held unconstitutional in Nevada, but no reference
to the case was giveu,^*"

A negro in Gilmer County, West Virginia, sued the clerk
of the county court for refusing to sell a license for his mar-
riage with a white woman. It was stated that this would

*"*Ibid., pp. no, 122, 134, 135.
'"Ibid., pp. 112, 118.
'■"Ibid., p. 120.
'"Ibid., pp. 113, 115.
'«Ibid., p. 134.
•"■Ibid., p. IIS.

52 Adoption of the Fourteenth Amendment.

bring the Civil Rights Bill before the Courts.^"^ Judge Wal-
ton, of Augusta, Maine, imposed a fine of $40 and thirty
days imprisonment on a negro and a white woman for hav-
ing married in violation of the state law. The punishment
was so light because the parties were ignorant of the law.
Their counsel made the plea that the Civil Rights Bill allowed
them to marry, but the judge was unable to agree, say-
ing that the bill could not alter the laws of the State, and
that the marriage was null and void. The writer reporting
this incident stated that some of the Radicals were exasper-
ated from the fact that a radical judge had renounced and set
at naught a law of the United States which gave the negro
the same rights that were enjoyed by white men.^"^ Under
the caption " Negroes Getting their Civil Rights," an account
was given of a negro and white woman before the court in
Nashville. The woman was slightly fined and sent to the
work house, while the negro was sent to the Freedmen's
Court."»

In addition to the instances we have already given in
which the Civil Rights Bill was held to be constitutional,
there are several others, but in most of these cases the ques-
tion at issue was as to the right to testify. As early as June,
1866, the Orphan's Court for Baltimore decided that negroes
could testify under the Civil Rights Bill.^^" The same pro-
vision of the bill was held to be valid by Judge French, of
Washington County, Maryland. He followed the decision
of Judge Bowie rather than that of Judge Magruder.^^^
Judge Durrell, of the United States District Court for Louis-
iana, held the bill to be constitutional.^^^

The Civil Court of Detroit, Michigan, decided, September,
1866, that negroes could not be prevented from enjoying any
privilege they chose and could pay for. The case before
the court was brought by a negro for the refusal of the door-

'"Ibid., p. 115.

"^ Ibid., p. 136.

"•Ibid., p. 113.

"> Ibid., p. 132.

'•"Ibid., p. IIS.

Freedman's Bureau and Civil Rights Bills. 53

keeper to admit him and his companions to the main body
of the theater — they being directed to the gallery. The
judge in this case was said to be a Democrat/^^ The United
States Commissioner, at Mobile, Alabama, decided June 26,
1867, that the railway company of that city could not pre-
vent negroes from riding in the same cars with white per-
sons, since to do so was in violation of the law, evidently
referring to the Civil Rights Bill, for the counsel for the
negro asked that the president of the company be bound over
to the Federal Court under that bill, which was done.^^*

Mayor Horton of the same city, an appointee of the mili-
tary authorities, banished a negro boy from the city, this not
being possible in regard to white people. He was indicted,
tried, and found guilty for violation of the Civil Rights Bill.
There was much rejoicing that the " trap made to catch the
Southerners had first gobbled up a yankee official."^^^

Among the incidents to show the view generally taken of
the bill is that of two negro women of Portsmouth, Vir-
ginia, who tried to enter the cabin on a ferryboat intended
for ladies.^^® A similar incident occurred in Baltimore as
to a waiting room set apart for ladies at one of the depots.^^'
Suits were instituted in both cases under the Civil Rights
Bill.

There were other incidents, more or less similar to those
we have given, in which attempts were made by negroes to
enjoy the same privileges accorded to white persons. There
were doubtless a number of similar incidents which did not
receive public notice, as well as many which we have not
observed.

The instances we have cited, however, are apparently suffi-
cient to justify the conclusion that the belief prevailed gen-
erally— north, east, west and south — especially among the
negroes, that the Civil Rights Bill gave the colored people
the same rights and privleges as white men as regards travel

"' Ibid., p. 120

"* Ibid., p. 136.

'"Ibid., p. 151.

"• N. Y. Tribune, May 18 and 21, 1867.

"' McPherson's Scrap-book, "The Civil Rights Bill," p. 109.

54 Adoption of the Fourteenth Amendment.

schools, theaters, churches, and the ordinaryrights which
may be legally demanded. There also seems to have been a
less general belief that it also permitted the intermarriage of
the races. / Many of these cases occurred before the Four-
teenth Amendment passed Congress. Reference was also
made to some of them in the debates, and weight must be
given them in interpreting the purposes of the Amendment,
since it was acknowledged that the first section of the
Amendment was the Civil Rights Bill incorporated into the
Constitution. This somewhat extended account of the bill,
therefore, and the cases arising under it, have been given
for the purpose of aiding us in the interpretation of that
Amendment, and this will become more apparent in the
chapters that are to follow.

CHAPTER II.
The Fourteenth Amendment Before Congress.

SECTION one of THE AMENDMENT.

The consideration of the Amendment itself will take us
back in point of time, for it was not presented as a whole
at first, but by sections, nor were these sections finally acted
upon by both Houses until after the Civil Rights Bill had
been disposed of, having been side tracked to give full sway
to that important measure. There may also have been other
considerations which caused the postponement of the vari-
ous amendments; for example, to let the Reconstruction
Committee formulate and present its entire plan of recon-
struction, to give it time to secure all the evidence it could
to aid in the enactment of that plan, or to postpone final
action until after the spring elections in some of the New
England States, so that the Republican interests might not
be affected by the plan of reconstruction proposed.

The Amendment was not a spontaneous creation, was not
the product of one mind, but of many. It was also a
product of evolution, and its growth' and development make
an interesting study. In considering this evolution of the
Fourteenth Amendment, it seems advisable to consider each
section separately in order to rerider the connection and
meaning more clear and apparent!] This may necessitate a
certain amount of repetition, but we trust that the object
aimed at, clearness, will justify this course.
/' The first section is by far the most important section of
the Amendment, for it is the only one which has played any i
/ very noticeable part in our country's history or has had any I
/ influence whatever upon our customs or legislation. This /
/ section also underwent more changes than any of the others /
' before receiving the form in which it now stands in the Con- '

$6 Adoption of the Fourteenth Amendment.

stitution. In the various forms in which it was presented
the same purpose and spirit were observable. It is about
this section also that there has been so much contention as to
its meaning and object. ,/

^ Probably the interpretation most generally given and most
'readily accepted is that its principal and almost only purpose
was to define citizenship ; that it was to make federal citizen-
ship primary, a citizen of the United States becoming by resi-
dence therein, ipso facto, a citizen of one of the States. The
Courts have practically given this interpretation to it, declar-
ing that it was to make citizens of the freedmen. A careful
examination of the proceedings of Congress should show
whether or not this was the principal object originally
aimed at./

On the second day of the session, December 5, 1865, Mr.
Stevens, the Republican leader in the House, introduced a
joint resolution proposing an Amendment to the Constitu-
tion of the United States. It was in the following form:
" All national and state laws shall be equally applicable to
every citizen, and no discrimination shall be made on account
of race and color." The next day, Mr. Bingham, of Ohio,
introduced a resolutiqn to accomplish the same object, though
the forms of the two resolutions were quite different. The
i resolution introduced by Mr. Bingham was reported back by
I him from the Reconstruction Committee, February 13, 1866,

- in the following form :" " Article . The Congress

shall have power to make all laws which shall be necessary
and proper to secure to the citizens of each State all privi-
t 1 leges 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." ^ This was practically the
form in which it had been introduced December 6.

Mr. Bingham, its author, in bringing this resolution before
the House, February 26, made known his reason for propos-
ing it as an amendment. He stated that it had been the
Vdefect of the Republic that there was no express grant
of power in the Constitution to enable Congress to enforce

^ Globe, 39th Cong., ist Sess., pp. 14 and 813.

Fourteenth Amendment Before Congress. 57

the requirements of the Constitution, and cited the fact that
the contemporaneous construction, the continued construc-
tion, legislative, executive and judicial, had been and was that
the provi^sions of the immortal Bill of Rights embodied in the
Constitution rested for their execution and enforcement upor
the fidelity of the States.^ In this brief statement he re-

jirealed the nature and purpose of the Amendment. It meant
nothing less than the conferring upon Congress the power to
enforce, in every State of the Union,~tEe'BilI of Rights, as^
found in the first eight Amendments. If his purpose shoulc
succeed, it meant that Congress, and not the Legislatures </f I
the States, would be empowered to legislate concerning all
the subjects embraced in the Bill of Rights, thus increasing
the power of the Central Government at the expense of the;
States,

A decided opposition to the resolution was manifested
when it came up for debate the next day. ]^^ Kelley, of
Pennsylvania, declared that the power which the Amendment
proposed to confer was already in the Constitution, but that
it had lain dormant. He was, therefore, in favor of sub-
mitting it to the States. The debate was of a general and
uninteresting nature with the exception of the speech by Mr.
Hale, of New York, who declared that the tenor and effect
of the resolution was to bring about a more radical change in
the system of government and to institute a wider departure
from the theory upon which it was founded than had ever
been proposed in any legislative or constitutional assembly.
" I submit," he continued, " that it is in effect a provision
under which all state legislation, in its codes of civil and
criminal jurisprudence and procedure, affecting the indi-
vidual citizen, may be overridden, may be repealed or abol-
ished, and the law of Congress established instead." He
took the position that however desirable it might be that
there should be reforms in state law, such reforms should b^
made by the States. He also opposed the Amendment on thq
ground that its language was too vague and general, that,

. at a single stride, it put almost unlimited power in the hands

' Ibid., p. 1034.

58 Adoption of the Fourteenth Amendment.

of Congress, and that the words " necessary and proper "
had already been given a liberal construction by the Courts.'

Mr. Davis, also of New York, continued the debate the fol-
lowing day in opposition to the resolution. He thought that
the Amendment, if adopted, would not only centralize power
in the Federal Government and that that power was " in-
tended to be exercised in the establishment of perfect political
equality between the colored and the white race of the
South." The Amendment, he asserted, was a grant of
power to Congress to enact original legislation in regard to
life, liberty, and property, and that Congress was to be the
judge as to what was necessary legislation, and concluded:
" Under such a power the constitutional functions of state
Legislatures are impaired, and Congress may arrogate those
powers of legislation which are the peculiar muniments of
state organization, and which cannot be taken from the States
without a radical and fatal change in their relations. I will,
sir, consent to no centralization of power in Congress in
derogation of constitutional limitations, nor will I lodge
there today any grant of power which may in other times,
and under the control of unprincipled political aspirants or
demagogues, be exercised in contravention of the rights and
liberties of my countrymen."*

Messrs. Hale and Davis were Republicans, both had voted
for the Freedmen's Bureau Bill and both voted for the Civil
Rights Bill at a later date, and their objections to the pro-
posed Amendment were, therefore, not partisan.

Mr. Woodbridge made a short speech in support of the
resolution, stating that its purpose was to enable Congress
to secure, by legislation, the privileges and immunities guar-
anteed to every citizen under the Constitution..' In his
opinion this or a similar Amendment was both necessary
and proper.^

Mr. Bingham, the author of the resolution, followed with
a somewhat elaborate speech in defense of the resolution.
He denied the suggestion that had been made that its pur-

*Ibid., pp. 1059-1066.
* Ibid., pp. 1085-1087.
"Ibid., p. 1088.

Fourteenth Amendment Before Congress. 59

pose was to mar the Constitution. Its only purpose was,^
fe declared, to empower Congress to enforce the Bill of.
Rights. He cited the decision of the Federal Supreme '
Court in the case of Barron vs. the Mayor and City Council
of Baltimore to show that the Bill of Rights was not ap-
plicable to or binding upon the States. He referred to a
speech by Mr. Webster to show that the Bill of Rights was,
however, to be enforced and observed by the States, but
since this had not been done in many States it was essential
that an amendment should be adopted giving Congress the
power to enforce it.'

Mr. Conkling stated that he had opposed the measure
while it was before the Committee. Mr. Hotchkiss thought
it too conservative, saying that it left the rights of the
citizens entirely in the hands of Congress, and that a future
Congress might, therefore, make laws which would not be
.agreeable. He wanted the Constitution so amended as to
deprive the States of the power to discriminate against any
class of citizens, and advocated the postponement of the
resolution. Mr. Conkling, with the quasi consent of Mr.
Bingham, moved the postponement of the resolution until
the second Tuesday of April, though he voted for the post-
ponement for an entirely different reason than did Mr.
Hotchkiss, declaring that it could not be objected to as not
being sufficiently radical. His motion was agreed to by a
vote of no to 37 — Mr. Bingham voting" in the affirmative.''^

It is rather difficult to determine the cause of the post-
ponement. Mr. Bingham may have seen that it was im-
possible to secure its adoption at the time in view of the
hostile criticism of it by members of his own party, though
it was suggested that the postponement was due to the fact
that elections were soon to take place in New Hampshire
and Connecticut, and that it was feared that the measure
might be so radical as to affect the interests of the party
in power.^ The resolution was not called up in April, nor

- * Ibid., pp. 1088-1094.
^ Ibid., pp. 1094-1095.
•N. Y. Herald, March 2, 1866.

6o Adoption of the Fourteenth Amendment.

indeed was it again brought before the House in the same
form.

Although the resolution was not debated in the Senate, it
is worthy of note that Senator Stewart, of Nevada, referred
to it, February 28, saying that it would change our form of
government if adopted, and that little legislation would be
left for the States.®

It may be interesting at this point to show the attitude
of the Reconstruction Committee^" in regard to the pro-
posed Amendment. At^ the third meeting, of the Commit-
tee, January 12, 1866, the day after Mr. Trumbull had
introduced the Freedmen's Bureau and Civil Rights Bills,
Mr. Bingham submitted the following resolution proposing
an amendment to the Constitution : " The Congress shall
!have power to make all laws necessary andTproper to secure
to all persons in every State within this Union equal pro-
tection in their rights of life, liberty and property." At the
same time he moved its reference to a sub-committee con-
sisting of Messrs. Fessenden, Stevens, Howard, Conkling,
and Bingham.^y This sub-committee, composed entirely of
Republicans, tof which the various propositions in regard to
the apportionment of Representatives were also to be re-
ferred, reported back the resolution at the fifth meeting of
the Committee, January 20, in the following form : " Con-
gress shall have power to make all laws necessary' and
proper to secure to all citizens of the United States, in every
' State, the same political rights and privileges ; and to all

)ersons in every State equal protection in the enjoyrhent of
life, liberty, and property."^- It will be observed that this

fesoliition was in much stronger terms than the one sub-
litted by Mr. Bingham, for this one declared that all citi-

" Globe, 39th Cong., ist Sess., p. 1082.

" The Reconstruction Committee (or the Committee of Fifteen)
consisted of the following: Senators: Messrs. Fessenden (Chair-
man), Howard, Harris, Williams, Grimes and Johnson.

Representatives: Messrs. Stevens (Chairman on part of House),
Conkling, Boutwell, Blow, Bingham, Morrill, Washburne, Grider
and Rogers. Messrs. Johnson, Grider and Rogers were Demo-
crats.

"Journal of the Reconstruction Committee, p. 7.

"Ibid., p. 9.

Fourteenth Amendment Before Congress. 6i

zens should be given the same political rights and privileges,
hereby conferring, or making it possible for Congress to
eonfer, the elective franchise and the right to hold office
^^on the negroy' Since no record of the proceedings of this
sub-committeq/^was kept, we can only conjecture how its
members voted on the above resolution. From his sub-
sequent action, we may feel safe, however, in saying that
Mr. Conkling opposed the whole measure, though he never
.betrayed or made known the real motives which actuated
the committee. This sub-committee was doubtless ap-
pointed to formulate and consider partisan measures, since
no Democrat was placed upon it, thus enabling the Radicals
to discuss freely their purposes and the best means or meth-^
ods of obtaining them without any danger of revelation^^^^

The resolution»_^g^j::^orted back by the sub-committee,
was_jiot. considered, however, by the full Committee until
its next meeting, January 24. At this time Mr. Howard
moved to amend the resolution by inserting " and elective "
after the word " political," but this seemed unnecessary, no
doubt, and was rejected, only two, Messrs. Howard and
Rogers, voting for it, the latter no doubt to make it as
obnoxious as possible.

Mr. Boutwell then moved the following as a substitute
for the first clause of the resolution : " Congress shall have
the power to abolish any distinction in the exercise of the
elective franchise in any State which by law, regulation, or
usage may exist therein." This was also rejected, and,
indeed, it is difficult to see where his substitute would secure
more than was secured by the words " political rights and
privileges." The resolution was again referred to a select
committee composed of Messrs. Bingham, Boutwell, and
Rogers.^'

At the next meeting, three days later, Mr. Bingham re-
ported the resolution in this form : " Congress shall have
power to make all laws which shall be necessary and proper
to secure all persons in every State full protection in the
enjoyment of life, liberty, and property; and to all citizens

" Ibid., p. 12.

62 Adoption of the Fourteenth Amendment.

of the United States, the same immunities and also equal
political rights and privileges." Mr, Johnson moved to
strike out the last clause, but his motion was lost by a vote
of 4 to 6, five being absent.^* The resolution was not con-
sidered at the meeting January 31, but on February 3, Mr.
Bingham moved, by way of amendment, the following as a
substitute : " The Congress shall have power to make all
laws which shall be necessary and proper to secure to citi-
zens of each State all privileges and immunities of citizens
in the several States (Art. IV, Sec. 2) ; and to all persons
in the several States equal protection in the rights of life,
liberty and property (5th Amendment)." After a discus-
sion of the question, a vote was taken on the substitute,
with the following result: Yeas, Messrs. Howard, Wil-
liams, Washburne, Morrill, Bingham, Boutwell, and Rog-
ers (7) ; Nays, Messrs. Fessenden, Grimes, Harris, Stevens,
Grider and Conkling (6). Messrs. Johnson and Blow were
absent. The question then recurred on agreeing to the
proposed Amendment as amended, and on this question
there were nine in the affirmative and four in the negative,
the four negative votes being cast by Messrs. Harris,
Grider, Conkling and Rogers, while Messrs. Johnson and
Blow were not present.^®

When the Committee met again, a week later, Mr.
Stevens moved that the Amendment or resolution, as
amended February 3, be reported to Congress. The vote
on this motion was the same as that by which the resolution
was adopted at the previous meeting with the exception that
Mr. Johnson was present and voted in the negative, while
Mr. Blow voted in the affirmative, Mr. Washburne being
absent.^® It is to be noted that only two Republicans,
Messrs. Harris and Conkling, both of New York, were
opposed to the resolution. As we have already seen, the
resolution was brought before the House February 13, but
was postponed on February 28. As to the reason or rea-

" Ibid., p. 12.
« Ibid., p. 14.
"Ibid., p. IS.

Fourteenth Amendment Before Congress. 63

sons for the opposition of Messrs. Harris and Conkling,
there is no record.

It would be assurning too much to attempt to say why
so many changes were made in the resolution, but it seems
that one is warranted in asserting that the resolution as
finally agreed upon February 3, and reported to the House
February 13, was so worded as not to give Congress power ^
over the elective franchise, or political rights in general, or
at least not to have it expressed so baldly as Messrs. How-
ard, Boutwell, and others wanted it^With the exception
of the probably intended exclusion of political rights, the
various forms in which the resolution was brought before
the Committee breathed the same spirit and purpose, the
only object or purpose in making the changes being to get
it into the best possible form to accomplish the desired end
or ends. It may also be well to note the fact that on one
occasion Mr. Bingham indicated in parentheses the sources
of his resolution, since this may aid in a later consideration
of the Amendment. It is to be regretted that no record
of the discussion which took place in the Committee was
kept, for such a record would be very valuable in ascertain-
ing the purposes of the various resolutions, though of
course the statements or declarations of the members of the
Committee in the debates which took place in Congress will,
in part at least, supply this want.

It is especially important to note the fact that there was
no suggestion of a clause declaring who were citizens of
the United States, and that two classes of persons were
recognized in all the resolutions. To the one class, citi-
zens, were to be secured the privileges and immunities,
whether specifically stated to include political rights or not, ,
of citizens of the United States. It is perfectly evident,
from the limited debate which was had on the resolution in
the House, that the term " citizens " was intended to include
the freedmen, they being regarded as citizens since the
abolition of slavery. To the other class, designated as
" persons," was to be secured equal protection in the rights
of ^Tffer^liberty, and property. " Persons " included, of

64 Adoption of the Fourteenth Amendment.

course, all citizens as well as those who were not citizens,
this being- a broader term./ This same distinction was made
in the first section of the Fourteenth Amendment as finally
ratified. ^ \

There seems to be little doubt, as shown by its form and n.
the debates, as to the main purpose or eflFect of the resolu-
tion which was postponed on the 28th of February, for it
declares in unmistakable terms, " Congress shall have
power." Had it become a part of our Constitution, even
a Supreme Court, composed entirely of strict construction-
ists of the old regime, could hardly have found any pretext
for limiting the power of Congress to enact any legislation
which it deemed " necessary and proper " to secure the
privileges and immunities of citizens, even to the extent of
defining those privileges. It would have conferred upon
Congress positive, and not merely corrective legislative
power as was claimed by some, and while " political rights "
was finally omitted, it seems possible that Congress could,
under the broad power given by the general terms used,
properly have determined the qualifications of electors, and
fixed other political rights. The legislation of the States
would have been subject to the will of Congress, for there
would have been created a centralized Government, with
nearly all power in the Legislative Department.

It was undoubtedly the intention of Mr. Bingham and
the members of the Committee who supported him, to give
Congress power to act when the States had passed laws
which violated the principles stated in the resolution..'
From the declaration of Messrs. Hale and Davis when the
resolution was before the House, and especially from the
context of the resolution itself, it seems that-we may prop-
erly infer that they intended to confer what is still more
important, the power to take the initiative in legislation and
to pass laws which were not in the strict sense corrective.
Congress, and not the Courts, was to judge whether or not
any of the privileges or immunities were not secured to

citizens in the several States. The believers in States

Rights may well feel grateful that the resolution was not'

^'^i-ll-w

Fourteenth Amendment Before Congress. 6$

incorporated into the fundamental law of our country,
though it may properly be asked whether it really did not
become a part of it with a mere change in dress, but not
in meaning. .•

It is nearly two months after the postponement of the
resotution, February 28, before we hear of any resolution,
either in Congress or before the Committee, that is at all
similar to the one postponed. During this time the Civil
Rights Bill had been passed, had been vetoed, and had been
declared law, notwithstanding the President's objections.
Mr. Bingham and others, as we have seen, opposed that bill
as being without warrant in the Constitution, stating that
the resolution which had been postponed was intended to
authorize such legislation.

It could not be expected that a man of the ability, deter-
mination, and zeal of Bingham would easily succumb to
defeat. With his measure apparently under the ban, he
set to work with a stronger determination to overcome the
obstacles in his path. He exercised all the ingenuity of
his legal and astute mind to put his cherished scheme into
such form as to secure its adoption by making it acceptable
to his colleagues. He did not make it weaker, as he him-
self stated at a subsequent time, but stronger, though it
was in a form that seemed less objectionable.

It was not until the meeting of the Committee, April 21,
^at Mr. Bingham again brought forward his resolutions.
It was at this meeting that the first sign of the composite
character of the Fourteenth Amendment was presented,
Mr. Stevens submitted a plan, which, he stated, had been
framed by some one else, but which received his approval.
This was the plan of Robert Dale Owen, as will be shown
later, and consisted of five sections. Prior to this time the
various propositions as to the privileges and immunities of
citizens, the basis of representation, the Confederate debt,
etc., had been submitted as separate and distinct Amend-
ments. But now for the first time is revealed the intention

66 Adoptvon of the Fourteenth Amendment.

of the leaders to combine all the propositions into one
Amendment.

Section i of the plan submitted by Stevens read as
follows :. " No discrimination shall be made by any State,
nor by the United States, as to the civil rights of persons
because of race, color, or previous condition of servitude
Mr. Bingham at once moved to amend this section by add- ,
ing : " Nor shall any State deny to any person within its
jurisdiction the equal protection of the laws, nor take pri-
vate property for public use without compensation." This
amendment was discussed, Mr. Bingham no doubt explain-
ing its purpose, but it was rejected by a vote of 7 to 5,
receiving the votes of Messrs. Johnson, Stevens, Bingham,
Blow, and Rogers. The section as submitted by Mr.
Stevens was then adopted with only two votes, those of
Messrs. Grider and Rogers, in the negative. After sections
two, three and four had been adopted, Mr. Bingham moved
,to insert the following as section five : " No._State shall make
..or enforce any law whichTshall abridge the privileges and
immunities of citizens of the United States, nor shall any
State deprive any person of life, liberty, or property without
due process of law, nor deny to any person within its juris-
diction the equal protection of the laws." The Journal of the
Committee states that this proposition was discussed, and
adopted by vote of 10 to 2, Grider and Rogers again being
the only members who voted in the negative, while Messrs.
Fessenden, Harris, and Conkling were absent." At the
meeting of April 25, Mr. Williams, who had voted for the
section proposed by Mr. Bingham, April' 21, mo ved^tO Strike
it out. After some discussion this was done by a vote of
7 to 5, those voting to retain it being Messrs. Stevens,
Morrill, Bingham, Rogers, and Blow ; Messrs. Fessenden,
Grimes, and Washbume were either absent or did not vote.
A motion was then made to report the resolution or plan
as amended to both Houses. This prevailed by a vote of
7 to 6. On this motion Messrs. Conkling, Boutwell, and
Blow voted with the Democrats against reporting it. Un-

"Ibid., pp. 24-26.

Fourteenth Amendment Before Congress. 67

daunted by successive defeats, Mr. Bingham at once brought
forward his favorite scheme, proposing it as a separate
amendment', but again, after discussion, it was rejected,
receiving only the votes of the Democrats in addition to
his own. It is rather difficult to account for the votes of 1
the Democrats at this time unless it was for the purpose of /
disgusting the people with so many amendments, or to
cause division within the ranks of the majority, thereby
hoping to defeat all amendments. A motion to reconsider
the order to report the proposed plan to Congress was car-
ried, Messrs. Stevens and Howard being the only ones who
objected to this.^^ The vote was reconsidered on account
of the absence of the Chairman, Mr. Fessenden, who had
the varioloid,^® since it might not be considered very re-
spectful to him to report the final plan of reconstruction in
his absence. Who knows what effect this delay had on the
final form of the Amendment? The plan submitted by
Robert Dale Owen, through Mr. Stevens, might have be-
come a part of the Constitution instead of the present Four-
teenth Amendment, though this is rather doubtful.

At the meeting three days later, Mr. Bingham again*!
brought his oft-rejected measure before the Committee by
moving to strike out section one of the proposed plan and to
insert his favorite measure in its place. It was again dis-
cussed, and was finally accepted by a vote of 10 to 3,
Messrs. Grimes, Howard, and Morrill voting against it.
Mr. Conkling for the first time gave his assent to it.
Messrs. Fessenden, and Harris did not vote.^** It would be
both interesting and valuable if we only knew what was
said in regard to this measure, which had so often been
rejected. Whether the Committee was won over to Bing-
ham's view by his arguments or persistence, we do not
know, but we may imagine the satisfaction which Mr.
Bingham must have experienced at having his measure
finally accepted by a large majority of his colleagues on the

"Ibid., pp. 31-32.

"Atlantic Monthly, June, 1875, P- 660. See also Wilson, The
Rise and Fall of the Slave Power in America, III, p. 650.
^Journal of the Reconstruction Committee, p. 35.

68 Adoption of the Fourteenth Amendment.

Committee. It was this same proposition, with the addi-
tion of the clause defining citizenship, which, in the iden-
tical form in which he introduced it before the Committee,
April 21, finally passed Congress, June 13, and was even-
tually ratified by the States as section one of the Fourteenth
Amendment. The whole plan or proposed Amendment
was then ordered to be reported to Congress, the vote being
strictly partisan, 12 to 3.^^

We have thus traced the changes, in the form of section
I, which were made in the Committee of Fifteen; no rea-
sons were given for these various changes, but it may be
asserted, we think, that the main object in view was the
same throughout, the only difficulty being so to frame or
word the section as to accomplish that object and yet secure
the Amendment's adoption. The Radical leaders were as
aware as any one of the attachment of a great majority of
the people to the doctrine of States Rights — not the right
of secession to be sure, but the right of the States to regu-
late their own internal affairs, including the question of
suffrage. The form in which the measure was first brought
before the Committee, and afterwards introduced in the
House, was too bald, and it was seen that some change was
necessary. This was the problem that Mr. Bingham set
himself to solve, and there seems little, if any, doubt but
that he kept the same object in view, and thought that the
section, as finally reported and adopted, was as strong as
the first one, and intended it to accomplish the same pur-
pose, to remedy the same evils, and to confer the same pow-
ers upon Congress. His subsequent declarations and ac-
tions only confirm this view.^^ As the author of the
proposition, his testimony should be given much weight,
and he was furthermore one of the best, if not the best,
constitutional lawyer in the House of the Thirty-ninth Con-
gress. A man of strong conviction, strongly attached to
his party, Mr. Bingham was, however, guided in his actions
by his convictions, as was illustrated by his vote on the Civil

^ Ibid., p. 38.

""See the fourth chapter.

Fourteenth Amendment Before Congress. 69

Rights Bill. Strong Radical that he was, nothing but a
sincere and deep conviction on his part would have induced
him to vote against a party measure.

The original Constitution was framed under very difficult
and trying circumstances. The Fathers were very careful
to word it so as to confer great power and yet to have it in
such a form that the people might not fully realize the
power that was being conferred. We are venturing little^
we believe, in saying that this was apparently the probleni;
that confronted the Radical leaders of the Thirty-ninth Con-j 1
gress, and that their main purpose in proposing the first sec-
tion of the Amendment was to increase the power of the
Federal Government very much, but to do it in such a way
that the people would not understand the great changes in-/
tended to be wrought in th« ^fundamental law of the land. \
Their failure to do this is Jaue to the strained construction |
put upon their work by^the Supreme Court.

The authorship of the Fourteenth Amendment has been
ascribed to, or claimed by, several persons. In June,
1905, on the death of Judge Stephen Neal, of Indiana, the
statement was made in the leading papers of the country that
he was its author. The Indianapolis News went so far as to
give a picture of the room in which he wrote it. The only
evidence to support the claim made for Judge Neal is a letter
from Mr. Orth, who was a member of Congress at the time,
to Judge Neal stating that he had submitted the plan sent him
by the Judge to the Committee and that it had been adopted
by the Committee almost verbatim. It was stated that this
letter was lithographed and preserved by Judge Neal. The
Journal of the Reconstruction Committee shows that a plan
was submitted by Mr. Stevens, but this plan consisted of
five sections, and not of four, as Judge Neal stated his did.
Furthermore, there is strong evidence that another man from
Indiana, Robert Dale Owen, was the author of the plan sub-
mitted by Mr. Stevens on April 21. Mr. Owen, in an article
in the Atlantic Monthly for June, 1875, under caption of "
" Political Results from the Varioloid," gives a copy of the
plan which he submitted to Mr. Stevens. This copy is iden-

•JO Adoption of the Fourteenth Amendment.

tical, word for word, with the plan submitted by Mr. Stevens,
as given in the Journal of the Committee. Since the Jour-
nal was not published for several years and was kept by Mr.
Fessenden, the Chairman of the Committee, and by his heirs,
it would hardly have been possible for Mr. Owen to have
given the proposed Amendment had he not really been the
author of it. Mr. Owen's plan was also published in the
newspapers at the time, and it was stated that it was being
considered by the Committee. This seems sufficient to show
that the claim for Judge Neal's authorship of the Amend-
ment falls to the ground, for no other plan similar to the one
submitted by Mr. Stevens on April 21 was brought before the
Committee, the other propositions being separate and distinct
Amendments. No doubt Judge Neal sent a plan to Con-
gressman Orth, and Mr. Orth may have given it to a mem-
ber of the Committee, but it seems perfectly evident that it
was not submitted to the Committee as a whole or acted
upon by it. It may have been very similar to the plan agreed
upon, thus leading Mr. Orth to infer that it was Judge
Neal's plan that had been accepted.

Mr. Owen never claimed that the Amendment as finally
adopted was his, though unquestionably the plan was his.
But for such a plan we would not have had such a hetero-
geneous Amendment as the Fourteenth. The same or sim-
ilar sections might have been proposed separately, but had
this been done, there is little doubt but that some of them at
least would have been rejected either by Congress or by the
States. Owen's plan had been accepted and ordered to be re-
ported to Congress without any changes whatever. And this
would have been done but for the illness of Fessenden. The
delay was fatal to Owen's plan, scarcely any vestige of the
original form being retained. He states in the article to
which we have referred, that Stevens gave the reason for the
changes, especially that in regard to suffrage. The action of
the Committee leaked out, and caucuses were held by the
members from New York, Illinois, and Indiana. Each of
these decided against negro suffrage in any shape.

The statement was made several times during the cam-

Fourteenth Amendment Before Congress. 71

paign of 1866 that Mr. Bingham was the author of the-
Amendment. This was true only as regards the first sec-^
tion.

It is to be especially noted that at no time was the
question of citizenship considered by the Committee, no
proposition to define citizenship being submitted. This,
fact alone, it seems, is sufficient to show that the princi-V
pal object of the Amendment was not to declare. who werel-
,^itizens7~f5f the "Committee evidently regarded the freed- \
men as citizens, since the purpose of the whole reconstruc-
tion measure was more or less bound up with that class.
This conclusion, reached after a careful examination of the
Journal of the Reconstruction Committee, is reenforced by
the report of the majority of that committee, for it is stated
specifically in that report that negroes were no longer slaves,
but free men and citizens. This being the view of the Com-
mittee, how can it reasonably be maintained that the first sec-
tion had for its principal object the conferring of the status
of citizenship upon negroes?

Before tracing the course of the Amendment in the House
and the Senate, it may be well to consider the report of the
Committee, for it should be a valuable source in aiding us
to determine or to discover the reasons given for proposing
the Amendment. The report was drawn up by Mr. Fessen-
den and is an able document. Senator Grimes, a member of
the Committee, in a letter to his wife at the time, June 11,
1866, stated that he regarded it as the ablest paper, either as a
report or in the form of a speech, that had been submitted
to Congress during his membership of the Senate.^^

After declaring that, instead of being mere chattels, the
former slaves had become free men and citizens ; that they
had been true and loyal to the Union, and that it would be
the basest ingratitude to abandon them to their former mas-
ters without securing them in their rights as free men and
citizens, the report says : " Hence it became important to in-
quire what could be done to secure their rights, civil and
political. It was evident to your Committee that adequate

^ Salter, Life of Grimes, p. 299.

72 Adoption of the Fourteenth Amendment.

security could only be found in appropriate constitutional
provisions." ^*

The Committee then cites incidents and testimony to show
the condition of the South, saying that the southern people
haughtily demanded, as a right, the privilege of participating
in the government which they had been striving to over-
throw ; that the leaders were prominently put forward to fill
the highest places, many of them, including A. H. Stephens,
the Vice President of the Confederacy, being elected to Con-
gress in face of the test-oath ; that the whole conduct of the
people displayed a feeling of hostility to the Federal Govern-
ment ; that there was " no general disposition to place the
colored race, constituting at least two fifths of the popula-
tion, upon terms even of civil equality " ; that Union men
were detested and northern men going South were pro-
scribed ; and that to have fought against the Union was con-
sidered a virtue. With such an array of evidence as this,
the Committee was of opinion that " Congress would not be
justified in admitting such communities to a participation in
the government of the country without first providing such
constitutional or other guarantees as will tend to secure the
civil rights of all citizens of the republic."

The closing paragraphs of the report are worthy of being
quoted in full, for they express briefly, but cogently, the ob-
jects which the Committee desired to accomplish by the
Amendment.

" The conclusion of your Committee, therefore is, that the
so-called Confederate States are not, at present, entitled to
representation in the Congress of the United States ; that,
before allowing such representation, adequate security for
future peace and safety should be required ; that this can only
be found in such changes of the original law as shall deter-
mine the civil rights of all citizens in all parts of the repub-
lic, shall place representation on an equitable basis, shall fix
a stigma upon treason, and protect the loyal people against
future claims for the expenses incurred in support of rebel-

* Reports of Committees of House, 39th Cong., ist Sess., Vol
II, p. xiii.

Fourteenth Amendment Before Congress. 73

lion and for manumitted slaves, together with an express
grant of power in Congress to enforce those provisions. To
this end they offer a joint resolution for amending the Con-
stitution of the United States, and the two several bills de-
signed to carry the same into effect, before referred to.

" Before closing this report, your committee beg leave to
state that the specific recommendations submitted by them
are the result of mutual concession, after a long and careful
comparison of conflicting opinions. Upon a question of such
magnitude, infinitely important as it is to the future of the
republic, it was not to be expected that all should think alike.
Sensible of the imperfections of the scheme, your Committee
submit it to Congress as the best they could agree upon, in
the hope that its imperfections may be cured, and its defi-
ciencies supplied, by legislative wisdom ; and, that when
finally adopted, it may tend to restore peace and harmony to
the whole country, and to place our republican institutions on
a more stable foundation." ^°

All the Republican members, except Messrs. Blow and
Washburne, signed this report, which was submitted to Con-
gress June 8, 1866. It is important to note that not a word
was said about the necessity or desirability of defining citi-
zenship, and that it was specifically declared that negroes
were citizens, although the report was submitted ten days
after Mr. Howard had proposed to amend the first section by
adding a clause declaring who were citizens, and over a week
after that amendment had been accepted by the Senate,
This seems to be almost conclusive evidence that the ques-
tion of citizenship was not regarded as the most important
object of the first section of the Amendment.

The report of the minority of the Committee, written by
Reverdy Johnson, and signed by him and the other two
minority members, was made June 20. This report was
confined principally to a legal discussion of the status of the
Southern States and their rights under the Constitution.
This report declared that no further demands should be made
as a condition precedent to the admission of Representatives

" Ibid., pp. xvi-xxi.

74 Adoption of the Fourteenth Amendment.

from those States, but that there was no objection to the
fourth section of the proposed Amendment. Objection was
also made to the manner in which the Amendment was sub-
mitted, it being maintained that the different sections should
have been submitted as separate articles so that the people
might accept or reject such as they saw fit without accept-
ing or rejecting all.^®

Tl\e resolution proposing an Amendment to the Constitu-
tion was reported to both Houses of Congress April 30, in
the form finally agreed upon April 28. Mr. Stevens intro-
duced it in the House and Mr. Fessenden in the Senate, and
both of them introduced at the same time the bills which were
to accompany it. One of these bills was in regard to ad-
mitting the Southern States to a participation in the govern-
ment on adopting the proposed Amendment, while the other
one declared certain persons ineligible to hold office under
the Federal Government.

The resolution was not considered, however, by the House
until May 8, when Mr. Stevens opened the debate. He
stated that it was not all that the Committee desired, but
that after a careful survey of the whole ground, it was de-
cided that a more stringent proposition could not be ratified
by nineteen States, three fourths of the so-called loyal States,
repudiating the idea that it should be submitted to the South-
ern States or " disorganized communities " as the Committee
characterized them. The report of the Committee also states
that the proposition was not all that they desired, and Mr.
Grimes,^'^ in a letter to his wife, April 30, states the same
thing. These references, however, relate more particularly
to the second section, for many were in favor of securing
negro suffrage.

In reference to the first section, Mr. Stevens stated that all
of its provisions were asserted either in the Declaration of
Independence or in the Constitution, and added : " But the
Constitution limits only the action of Congress, and is not
a limitation on the States. This Amendment supplies that

" Ibid., pp. 1-13.
■'Salter, Life of Grimes.

Fourteenth Amendment Before Congress. 75

defect, and allows Congress to correct the unjust legislation
of the States, so far that the law which operates upon one
man shall operate equally upon all." He evidently had refer-
ence to the Bill of Rights, for it is in it that most of the
privileges are enumerated, and besides it was not applicable
to the States. Under his construction, moreover. Congress
would only have power to interfere in case of discrimina-
tion by the States, but even then Congress would judge as to
whether there was discrimination or not, and could, there-
fore, exercise great power. To the answer that the same
things were secured by the Civil Rights Bill, Mr. Stevens
replied that that was partly true, but that a law was re-
pealable by a majority, and that it should be put beyond the
power of Congress to repeal it.^®

The debate was limited to thirty minutes to each speaker,
and it was said to have been the intention of the leader to
call the previous question the day the resolution was intro-
duced, April 30. It was predicted, however, that had this
been done the previous question would not have been sec-
onded.^"

Mr. Finck, of Ohio, followed Mr. Stevens by declaring
that if the first section was necessary to confer power upon
Congress to legislate about the matters contained in it, the
Civil Rights Bill was clearly unconstitutional.^"

Mr. Garfield denied the position taken by Mr. Finck that
those who voted for this section thereby acknowledged the
unconstitutionality of the Civil Rights Bill, maintaining, as
did Mr. Stevens, that it was to put that bill beyond the pos-
sibility of repeal by Congress.^^ His view was, therefore,
that the first section merely incorporated the Civil Rights
Bill in the Constitution.

Mr. Thayer, of Pennsylvania, held the same views in
this regard as did Messrs, Garfield and Stevens, but also
stated that it was putting into the Constitution what was

* Globe, 39th Cong., ist Sess., p. 2459.

" Ibid., p. 2433 and N. Y. Herald, May i, 1866.

"Globe, 39th Cong., ist Sess., p. 2461.

" Ibid., p. 2462.

y6 Adoption of the Fourteenth Amendment.

already in the Bill of Rights of every State in the Union.^'
Mr. Thayer evidently thought the first section of the Amend-
ment was as effective and as strong as the proposition sub-
mitted by Mr, Bingham in February, for in a speech on the
Civil Rights Bill, March 2, he declared that he would support
Mr. Bingham's proposition which proposed to put the same
protection in the Constitution that was to be secured by the
bill. He practically made the same statement in regard to
the first section in his speech, May 8.

The view taken of the first section by the first three speak-
ers, all Republicans, was likewise held by Mr. Boyer, of
Pennsylvania, a Democrat. He thought it did more than
put the Civil Rights Bill into the Constitution, and that it was
intended to secure ultimately and to some extent indirectly,
the political equality of the negroes. It was also objection-
able, in his opinion, in that it was ambiguous and admitted
of conflicting construction.^'

Messrs. Kelley and Schenck followed Mr. Boyer, but their
speeches were confined to the general policy of Reconstruc-
tion, with especial reference to the third section.

Mr. Broomall, of Pennsylvania, the next day. May 9, de-
clared that the object of the first section was " to give power
to the Government of the United States to protect its own
citizens within the States, within its own jurisdiction." He
evidently thought that Congress would be empowered to pass
laws protecting citizens of the United States, and in order to
do this it would be necessary for Congress to determine what
were the privileges and immunities to be protected. He also
stated that it was the Civil Rights Bill in another shape, but
that it was desirable to have it in the Constitution to make
assurance doubly sure, since some thought the bill unconsti-
tutional, among the number being Mr. Bingham.'*

Mr. Broomall was followed by a Democrat, Mr. Shanklin,
of Kentucky, who said that the purpose of the first section
was to destroy the rights which the framers of the Constitu-

" Ibid., p. 2465.
** Ibid., p. 2467.
"Ibid., p. 2498.

Fourteenth Amendment Before Congress. 77

tion declared to belong exclusively to the States and to vest
all power in the General Government.^"

Mr, Raymond, a conservative or Johnson Republican, had
voted against the Civil Rights Bill because he thought it un-
constitutional, but now supported the Amendment. He
stated that the first section had been first embodied in the
Amendment proposed by Mr. Bingham giving Congress
power to secure an absolute equality of civil rights in every
State of the Union, and that it had then come before Con-
gress in the form of the Civil Rights Bill. He furthermore
stated that it was the purpose of this section to confer upon
Congress the power to pass the Civil Rights Bill and that he
would, therefore, support it.^* It is significant that Mr.
Raymond stated that the object of this section was the same
as the resolution submitted by Mr. Bingham in February,
especially since he had opposed the Civil Rights Bill.

Mr. Eldridge, a Democrat, said that the incorporation of
the first section in the proposed Amendment was an admis-
sion that the Civil Rights Bill was unconstitutional,^''' evi-
dently thinking that its purpose was to authorize such bills
as that one. We have already noted the answer that was
given by Messrs. Garfield and Stevens to a similar statement.

Mr. Eliot, of Massachusetts, supported the Amendment be-
cause he thought the doctrines contained in it were right,
saying that if Congress did not have the power to pro-
hibit discriminating legislation on the part of the States, such
power should be distinctly conferred. He had voted for the
Civil Rights Bill, he continued, thinking that Congress had
ample power to enact the provisions of that bill, but de-
clared his willingness to incorporate into the Constitution
provisions which would remove the doubts entertained by
some on that question.^^

On the third and last day of the debate in the House on
the resolution, Mr. Randall, of Pennsylvania, one of the
leading Democrats of the House, and who afterwards was

*■ Ibid., p. 2500.

** Ibid., p. 2502.

"Ibid., p. 2506.

**Ibid., p. 251 1.

yS Adoption of the Fourteenth Amendment.

several times Speaker of the House, asserted that the first
section proposed " to make an equality in every respect
between the two races, notwithstanding the policy of dis-
crimination which has heretofore been exclusively exercised
by the States." He alsc^ seemed to think that the section
would confer power upon the Federal Government to inter-
fere in behalf of every character of rights save suffrage,
and that even the privilege of determining who could vote
in the States would soon be assumed.^®

Mr, Rogers, a minority member of the Reconstruction
Committee, closed the debate for the Democrats, and his
speech is of sufficient importance to justify a somewhat
extended quotation. His speech was, in part, as follows:

" Now, sir, I have examined these propositions with some
minuteness, and I have come to the conclusion different to
what some others have come, that the first section of this
programme of disunion is the most dangerous to liberty.
It saps the foundation of the Government; it destroys the
elementary principles of the States ; it consolidates every-
thing into one imperial despotism ; it annihilates all the
rights which lie at the foundation of the Union of the
States, and which have characterized this Government and
made it prosperous and great during the long period of its
existence."

Mr. Rogers characterized the proposal as an " attempt to
embody in the Constitution of the United States that out-
rageous and miserable Civil Rights Bill " which was vetoed
because it was an attempt to consolidate the power of the
States. He also declared that the term " privileges and
immunities " embraced every right which anyone had under
the laws of the country, including the right to vote, to
marry, to contract, to be a juror and to hold office; and
added : " I hold if that ever becomes a part of the funda-
mental law of the land it will prevent any State from refus-
ing to allow anything to anybody embraced under this term
of privileges and immunities." He stated that if a negro
was refused the right to be a juror, that the Federal Gov-

"•Ibid., p. 2530.

Fourteenth Amendment Before Congress. 79

emment would step in and interfere.*" This last statement
has been fulfilled.

Mr. Farnsworth, of Illinois, said that all of the first sec-
tion except the last clause was already in the Constitution.
That was true, but he evidently overlooked the fact that the
Fifth Amendment was not binding upon the States, for he
regarded the first two clauses of the section as mere
surplusage.*^

Mr. Bingham, the author of the first section, said that
the necessity of that section was one of the lessons taught
by the war, and that there had been a want hitherto in the
Constitution which it would supply. That want he declared
to be " The power in the people, the whole people of the
United States, by express authority of the Constitution to
do that by congressional enactment which hitherto they have
not had the power to do, and have never even attempted to
do; that is, to protect by national law the privileges and
immunities of all the citizens of the Republic and the inborn
rights of every person within its jurisdiction whenever the
same shall be abridged or denied by the unconstitutional
acts of any State."

He denied that this section conferred power upon Con-
gress to regulate suffrage in the several States, and in
answer to a suggestion made elsewhere that if it did not
confer this power the need of it was not perceived, declared :
" To all such I beg leave again to say, that many instances
of state injustice and oppression have already occurred in
the state legislation of this Union, of flagrant violations of
the guaranteed privileges of citizens of the United States,
for which the National Government furnished and could
furnish by law no remedy whatever. Contrary to the
express letter of your Constitution, ' cruel and unusual
punishments ' have been inflicted under state laws within
this Union upon citizens, not only for crimes committed,
but for sacred duty done, for which and against which the
Government of the United States had provided no remedy

" Ibid., p. 2538.
**Ibid., p. 2539.

8o Adoption of the Fourteenth Amendment.

and could provide none." This quotation makes it per-
fectly evident that he intended to confer power upon the
Federal Government, by the first section of the Amend-
ment, to enforce the Federal Bill of Rights in the States,
for the citation he made from the Constitution is to be
found in the Eighth Amendment. If the section under
consideration had this effect as to that Amendment, it nec-
essarily follows that it would apply equally to the other
seven Amendments. A comparison of these statements
with those he made in February while his original resolution
was before the House clearly demonstrates that the two
resolutions, in his mind at least, were identical, and that
the first section of the Amendment conferred the same pow-
ers that he intended to confer by the original resolution.

It is to be inferred from what he said at this time that
Congress was only to interfere in cases where some of the
privileges or immunities were abridged or denied by the
unconstitutional acts of the States. This seems to be con-
firmed by another statement made in the same speech, where
he declared that the " great want of the citizen and
stranger, protection by national law from unconstitutional
state enactments," *2 would be supplied by this section.
While these statements might seem to justify the conclu-
sion that Congress was not empowered to act until the
States had actually passed discriminating or unconstitu-
tional laws, Mr. Bingham evidently did not intend to leave
that impression, for he stated specifically at this time that
no State ever had the power, by law or otherwise, to deny
to any freeman the equal protection of the laws or to
abridge the privilege of any citizen, though stating that this
had been done, and that without remedy. It can be in-
ferred properly, we think, that he meant by this that no
State could abridge, or could allow to be abridged or
denied, any of the privileges of citizens. Besides, he had
stated on a former occasion, while the resolution was still
before the Committee, that the Constitution declared that
no person should be deprived of life without due process

**Ibid., pp. 2542-43.

Fourteenth Amendment Before Congress. 8i

of law, but that notwithstanding this life had never " been
protected, and is not now protected, in any State of this
Union by the statute law of the United States." *^ This
clearly shows that he intended that Congress should have
the power to pass laws declaring what rights should be
secured to the citizens. Anyway, it matters little whether
Congress was to exercise the power before the States had
denied those privileges, either by acts of omission or of
commission, since Congress was unquestionably empowered
to define or declare, by law, what rights and privileges
should be secured to all citizens.

Mr. Stevens closed the debate with a short speech,
after which the previous question was ordered. The vote
then was taken immediately after Mr. Bingham had spoken,
J and his position must have been understood by all the
members present. His statement of the need and purpose
of the section must, therefore, have been acquiesced in by
those who supported it, especially since Mr. Bingham was
the author of it as well as a member of the Committee
which ordered it to be reported, and thus could speak with
authority. Furthermore, his statements do not at all con-
tradict the position taken by Mr. Rogers and others of the
minority, but rather strengthen it. In fact, there seems to
be little, if any, difference between the interpretation put
upon the first section by the majority and by the minority,
for nearly all said that it was but an incorporation of the
Civil Rights Bill. It might be expected that the minority
would ascribe certain motives to it on partisan grounds,
but this does not seem to have been the case in regard to
this particular section, for there was no controversy or mis-
understanding as to its purpose and meaning. The minor-
ity opposed it because they objected to increasing the power
of the Federal Government, while the majority supported
it for this very reason.

It may be said, in conclusion, that the House believedX
and intended that the purpose and effect of the first (

*'Ibid., p. 429. /

82 Adoption of the Fourteenth Amendment.

section of the Fourteenth Amendment would be to give

Congress the power to enact affirmative legislation, espe-
cially where state laws were unequal, and that it would also
make the first eight Amendments binding upon the States
as well as upon the Federal Government, Congress being
empowered to see that they were enforced in the States. It
also seems proper to say that Congress would be authorized
to pass any law which it might declare " appropriate and
necessary " to secure to citizens their privileges and immu-

j nities, together with the power to declare what were those

I privileges and immunities.

Many Republicans wanted the previous question voted
down to give an opportunity for amendments, though
amendment was only desired as to the third section, the first
section being acceptable to all who advocated the Amend-
ment. By a rather strange combination of the extremists
of both sides, the previous question was ordered by a vote
of 84 to 79, thus preventing all amendments.** The Demo-
crats who voted with the extreme Radicals to prevent an
opportunity of amending the resolution did so no doubt to
make the Amendment as objectionable as possible in order
to secure its defeat either by the Senate or by the States,
but their party tactics were of no avail.

The proposed Amendment was then passed, May 10,

C1866, in the form in which it was reported, by a vote of
128 to 37, only five Republicans, all from the border States
ftf Maryland, West Virginia, and Kentucky, voting in the
negative. The announcement of the vote was received
with applause on the floor and in the galleries. Mr. Ray-
mond's vote for the measure was also applauded.*^ Of the
Republicans who voted against the Amendment, none had

**A newspaper reporter, describing the vote on ordering the
previous question, said: " Thad, confident of his strength, sat in
his seat, grinning sardonically and chatting with the crowd of his
admiring friends gathered about him." Herald, May 11, 1866.

"Globe, 39th Cong., 1st Sess., p. 2545. A reporter stated that
Mr. Eldridge wanted the speaker to stop the applause, but that
"Jack Rogers hoped the colored brethren and sisters in the gal-
leries would be allowed to wave their pocket handkerchiefs."
Herald, May 11.

Fourteenth Amendment Before Congress. 83

expressed any objection to the first section except Mr.
Phelps, of Maryland, though he and Mr. Smith, of Ken-
tucky, were the only ones who spoke on the question.

We have already observed that Messrs. Bingham and
Raymond, who had opposed the Civil Rights Bill, supported
the Amendment, and it is probably worth while to point
out that Messrs. Hale, Davis, and Conkling, all of New
York, supported the Amendment, though they had opposed
it in another form at an earlier date. Their apparent in-
consistency may be explained by saying that the first section
did not attempt to confer as much power as did the resolu-
tion which they opposed, but this explanation is very much
weakened when it is recalled that they must have heard
what Messrs. Rogers and Bingham had said in regard to
it, and without any statement whatever as to what they
understood it to mean, they voted for it. Mr. Conkling
also must have been aware of what Mr. Bingham intended
to accomplish by it, for he was present in the Committee
when it was submitted, and had always opposed it there.
He had stated his objections to such a plan early in the
session, declaring that it would trench upon the principle
of local sovereignty by denying " to the people of the sev-
jeral States the right to regulate their own afifairs in their
Qwn way."** The plan of which he was speaking included
both civil and political rights, but the principle was the
same.

Probably one of the most important things to be noted,;
however, is the fact that the Amendment, in the form in I
which it passed the House May 10, 1866, contained no]
clause defining citizenship. If the main purpose of the
first section was to declare who were citizens, why was it
not added in the House? The question of citizenship does
not appear to have been raised during the three days' debate
on the Amendment, it evidently being taken for granted
that negroes were citizens. In fact, the Civil Rights Bill
had declared them citizens, and that part of the bill seems
to have been acquiesced in, for it was apparently recog-

" Ibid., p. 358.

84 Adoption of the Fourteenth Amendment.

nized by all that the negroes were henceforth to be citi-
zens of the United States. It cannot, then, be maintained,
so far as the House is concerned, that the question of citi-
zenship was at all involved.

The joint resolution proposing the Fourteenth Amend-
ment had been introduced in the Senate April 30, the day
on which it was brought before the House, but no action
was taken in regard to it until nearly two weeks after its
passage by the House. Mr. Fessenden, the Chairman of
the Reconstruction Committee, and consequently the one to
take charge of it in the Senate, was too ill to open the
debate. This duty was assigned to his colleague on the
Committee, Senator Howard, of Michigan, who opened the
debate May 23.

In beginning his speech, Mr. Howard said that he pro-
posed to present, in a succinct form, the views and motives
which influenced the Committee to propose the Amend-
ment, so far as he understood those views and motives.
The Journal of the Committee shows that he was generally
present and took part in the proceedings and he was, there-
fore, fully qualified to speak for the Committee. He was
furthermore selected to open the debate on the resolution
and to take charge of it in the Senate. The views which
he expressed, in view of his own statement, as well as his
position, must be regarded as those of the Committee, un-
less they were contradicted by some of the other members
of the Committee. He spoke at considerable length as to
the purpose and effect of the first section, saying that it
was a general prohibition upon the " States, as such, from
abridging the privileges and immunities of the citizens of
the United States." The privileges and immunities spoken
of, he declared, were those belonging to " citizens of the
United States, as such, and as distinguished from all other
persons not citizens of the United States." These privi-
leges and immunities had never been defined, and it was
not his purpose, he said, to undertake to define all of them,
though he regarded those spoken of in section two of the
Fourth Article of the Constitution as being among them.

Fourteenth Amendment Before Congress. 85

He quoted the decision of Justice Washington in Corfield
vs. Coryell (4 Washington Circuit Ct. Repts., p. 380) to
show what some of those privileges were. The Court did
not, in that decision, undertake to enumerate all the privi-
leges and immunities secured by that section, but said that
they might be included under the following general heads :
" protection by the Government, the enjoyment of life and
liberty, with the right to acquire and possess property of
every kind and to pursue and obtain happiness and safety,
subject nevertheless to such restraints as the Government
may justly prescribe for the general good of. the whole.
The right of a citizen of one State to pass through or to
reside in any other State, for purposes of trade, agriculture,
professional pursuits, and otherwise ; to claim the benefit
of the writ of habeas corpus; to institute and maintain
actions of any kind in the Courts of the State; to take,
hold, and dispose of property, either real or personal, and
an exemption from higher taxes or impositions than are
paid by other citizens of the State."

After quoting this decision at some length, Mr. Howard
said : " Such is the character of the privileges and immuni-
ties spoken of in the second section of the Fourth Article
of the Constitution. To these privileges and immunities,
whatever they may be, for they are not and cannot be fully
defined in their entire extent and precise nature — to these
should be added the personal rights guaranteed and secured
by the first eight Amendments to the Constitution." He
then gave a full statement of the rights secured by those
Amendments, among which were the freedom of speech and
of the press, etc.*"'

*' His statement of those rights was as follows : " Such as the
freedom of speech and of the press, the right of the people peace-
ably to assemble and petition the Government for a redress of
grievances a right appertaining to each and all the people; a right
to keep and to bear arms ; the right to be exempted from the
quartering of soldiers in a house without the consent of the
owner; the right to be exempt from unreasonable searches and
seizures, and from any search or seizure except by virtue of a
warrant issued upon a formal oath or affidavit; the right of an
accused person to be informed of the nature of the accusation
against him, and his right to be tried by an impartial jury of the

86 Adoption of the Fourteenth Amendment.

These privileges, immunities and rights, guaranteed by the
second section of Article Four and by the first eight Amend-
ments, had been, he declared, by judicial construction,
' secured to the citizen solely as a citizen of the United States
and as a party in the Federal Courts, and added : " They
^ (the provisions of the Constitution referred to) do not
operate in the slightest degree as a restraint or prohibition
] upon state legislation. States are not affected by them, and
,' it has been repeatedly held that the restriction contained in
' the Constitution against the taking of private property for
public use without just compensation is not a restriction upon
state legislation, but applies only to the legislation of Con-
gress."

Congress did not have the power to enforce these guar-
antees, he declared, since they were not powers conferred
upon Congress by the Constitution, nor embraced by that
sweeping clause which authorized Congress to pass all laws
necessary and proper for carrying out the powers granted by
the Constitution. They were, in his opinion, merely a Bill
of Rights in the Constitution without power on the part of
Congress to enforce them. The States were not restrained
from violating those guarantees, he continued, except by
their own Constitutions, which might be altered at any
. time. " The great object of the first section of this Amend-
ment is, therefore, to restrain the power of the States and
compel them at all times to respect these great fundamental
guarantees."

Mr. Howard stated, however, that the first section of itself
did not confer any power upon Congress to carry out those
guarantees, but that this power was conferred by the fifth
section, of which he said : " Here is a direct affirmative dele-
gation of power to Congress to carry out all of these guar-
antees, a power not found in the Constitution." According
to his opinion suffrage was not one of the privileges secured
by the Amendment.

The clause of the first section of which Mr. Howard had

vicinage; and also the right to be secure against excessive bail and
against cruel and unusual punishments." Globe, p. 2765.

Fourteenth Amendment Before Congress. 87

been speaking applied merely to citizens of the United States,
and did not secure any of those privileges to aliens and other
persons. The last two clauses of section one were applicable
to all persons, and prohibited the States from depriving any
one of life, liberty, or property without due process of law, or
from denying any one the equal protection of the law.
These clauses, declared Mr. Howard, abolished all class legis-
lation in the States and subjected all to the same laws and to
the same punishments. He evidently regarded the negroes
as citizens, for at this point he stated that they were pro-
tected by the Amendment in their fundamental rights as
citizens to the same extent as white men. In concluding
his remarks on the first section, Mr. Howard stated that if
the Amendment were adopted by the States, the first section
taken in connection with the fifth would prevent the States
from trenching upon the fundamental privileges which per-
tained to citizens of the United States.*^

The declaration of Mr. Howard in explaining the first sec-
tion of the Fourteenth Amendment could hardly have been
stated more clearly and squarely, and there could be no doubt,
it seems, as to its object and purpose. No one could reason-
ably say, after reading or hearing his speech, that he had
been misled as to the purpose and effect of the Amendment.
This had been said in regard to the Thirteenth Amendment,
and, with some justification, it must be admitted, but in re-
gard to the Fourteenth Amendment the same cannot be said,
for its purpose was clearly and fairly set forth by Mr.
Howard and others. His interpretation of the Amendment
was not questioned by any one, and in view of his statement
made at the beginning of his speech, this interpretation must
be accepted as that of the Committee, since no member of the
Committee gave a different interpretation or questioned his
statements in any particular. Nor was his position denied
by any of the minority, for in fact the minority opposed the
Amendment for the very reasons which he gave in support
of it, this especially being the objection given by Mr. Rogers
in the House.

"Ibid., pp. 2765-66.

88 Adoption of the Fourteenth Amendment.

Mr. Wade, on the same day that Mr. Howard spoke,
moved a substitute for the entire resolution, but the only
change in the first section was to substitute " persons bom
in the United States or naturalized by the laws thereof "
instead of " citizens of the United States." "

This substitute was proposed on account of uncertainty
which was involved in the term " citizens." Mr. Wade him-
self, so he says, had no doubt about who were compre-
hended by the term " citizens," but since the Courts had
thrown some doubt over the question, he thought all doubt
should be removed. His substitute would thus make the
privileges and immunities applicable to negroes whether
they were held to be citizens or not. In this respect he re-
garded his substitute as an improvement over that of the
Committee, and this was true in so far that no doubt could
be entertained as to the persons who were to be protected in
their rights and privileges. Mr. Wade was not the first to
observe that the very people whom they intended to reach by
the resolution might be excluded on the ground that they
were not citizens, since the Civil Rights Bill might not be
held to be constitutional, for Mr. Stewart had, on May 14,
1866, proposed an amendment to the resolution defining what
was meant by the term " citizens " as used in the first sec-
tion.'*"

Mr. Howard -evidently saw the weight of the observa-
tions of Mr. Wade and of the suggestion in the amend-
ment of Mr. Stewart, for when the resolution was before
the Senate, May 29, he mpved^jDy way of amendment to
section one, that " all persons born or naturalized in the
United States and subject to the jurisdiction thereof, are citi-
zens of the United States and of the "State's wherein they
reside," ^^ This was to form the first part of section one,
and with that added, no further changes were made as re-
gards that section, for with this exception, it stands in our
Constitution today in the form which was given it by Mr.
Bingham in the Committee. This amendment of Mr.

" Ibid., p. 2768.
"Ibid., p. 2560.
" Ibid., p. 2869.

Fourteenth Amendment Before Congress. 89

Howard was important in this respect, not that it conferred
any power upon Congress, but that it put beyond doubt and
cavil in the original law, who were citizens of the United
Sfates. The first clause of section one thus malces federal
citizenship primary, since residence is all that is necessary
to state citizenship if one be a citizen of the United States.
When that clause became a part of the fundamental law, the
States could no longer determine its citizenship and thus the
citizenship of the United States as in former years.

Mr. Doolittle seemed to fear that Indians born in the
United States would become citizens by this Amendment,
and so amended it by saying " excluding Indians not
taxed."°^ Mr. Howard replied that this was unnecessary
since Indians, who maintained tribal relations, were and
always had been regarded as quasi foreign nations, thus not
being embraced by the Amendment. Mr. Doolittle said that
citizenship, if conferred, would carry with it all the privi-
leges, rights, duties, and immunities which it was the object
of this Amendment to extend. While recognizing the im-
portance to be attached to the clause defining " citizens,"
he did not lose sight of the main object of the Amendment.
Mr. Trumbull claimed that " subject to the jurisdiction " of
the United States meant subject to the complete jurisdiction,
thus not including Indians.''* Mr. Howard said that Mr.
Doolittle's amendment, if accepted, would result in an actual
naturalization whenever any State saw fit to tax an Indian,
and that this objection was sufficient to secure its rejection.
He was not prepared, he declared, to have the Indians be-
come his fellow-citizens, to vote with him, and to hold lands
and deal in every other way that a citizen of the United
States had a right to do.''^ It would seem from this state-
ment that Mr. Howard regarded suffrage as a privilege of
citizenship, though he had stated in his opening speech that
it was not.

Senator Johnson, of Maryland, approved both Mr. Doo-
little's amendment to exclude Indians and the clause defin-

" Ibid., p. 2890.
" Ibid., p. 2893.
"Ibid., p. 2895.

90 Adoption of the Fourteenth Amendment.

ing citizenship. He thought that the latter was a wise and
necessary provision, since, according to commentators and
the decisions of the Courts, a citizen of a State became ipso
facto a citizen of the United States, and since there was no
definition as to how federal citizenship could exist except
through the medium of state citizenship.^^

Mr. Doolittle also charged that the first section was in-
tended to give validity to the Civil Rights Bill, pointing to
the fact that Mr. Bingham, who had opposed that bill, had
introduced it. Mr. Fessenden replied that the Committee
of Fifteen had never discussed it in his presence with the
view of making that bill valid, and that furthermore that
bill was not discussed in that connection at all, the section
being based on entirely different grounds. Since Mr. Fes-
senden was frequently absent from the meetings of the Com-
mittee, it is possible that references may have been made to
the Civil Rights Bill during his absence. Mr. Howard,
moreover, stated that it was the purpose of the Committee
to put the Civil Rights Bill beyond the legislative power of
those who wished to deprive the freedmen of their rights,
thus apparently acknowledging that it was one of the pur-
poses of the Amendment to incorporate that bill into the
Constitution.^^

Mr. Williams, of Oregon, pointed out the fact that the
second section precluded the idea that the first section con-
ferted citizenship upon Indians, since only Indians that were
taxed were to be counted in the basis of representation. Mr.
Saulsbury, of Delaware, who was opposed to the whole
Amendment, opposed Mr. Doolittle's amendment on the
ground that Indians were as much entitled to citizenship as
the negroes. The amendment was then rejected by a vote
of 30 to 10. Mr. Howard's amendment defining citizenship
was then agreed to without a division.^^ This amendment,
with the others which he submitted, was sufficient to attach
his name to the Fourteenth Amendment, for it was often
referred to merely as the Howard Amendment.

"• Ibid., p. 2893.
"Ibid., p. 2896.
"Ibid., p. 2897.

Fourteenth Amendment Before Congress. 91

Mr. Hendricks, who was later the Democratic nominee for
Vice President, said that the first section failed to define the
rights and duties, the obligations and liabilities of citizenship, i
but that they were left as unsettled as they had been during
the entire course of our history, though he declared that
negroes, coolies, and Indians would be admitted to citizen-
ship by it.**"

Mr. Poland, of Vermont, said that the privileges and im-
munities to be secured by the second clause of the first sec-
tion were those found in the second section of the Fourth
Article of the Constitution, but since there was no power in
Congress to enforce them, it was desirable that such power
be given. The last two clauses were said to be in the Dec-
laration of Independence and in the Constitution, evidently
meaning some or all of the first eight Amendments, since
one of the clauses was taken from the Fifth Amendment.
But state laws, he continued, existed in violation of those
principles. Congress had shown its desire and intention of
uprooting such partial legislation as existed in certain States
by passing the Civil Rights Bill, but since there were doubts
in the minds of some as to the constitutionality of that bill,
he thought those doubts should be removed by putting this
section into the Constitution, thereby empowering Congress
to enforce the fundamental principles of our government.^"

Mr. Howe, of Wisconsin, said that among the rights and
privileges of citizens were the right to hold land, to collect
wages by process of law, to appear in Court as a suitor for
any wrong done or right denied, and to give testimony, but
that these were not the only rights that certain States had
denied or might deny. He cited a law of Florida where
only negroes were taxed to support their own schools, and
declared that such laws as this would not be possible under
the Amendment.^^

Mr. Henderson, of Missouri, said that the persons de-
clared to be citizens by the first section were already citizens

" Ibid., p. 2939.
«" Ibid., p. 2961.
** Ibid., Appendix, p. 219.

92 Adoption of the Fourteenth Amendment.

under a fair and rational interpretation of the Constitution
of 1789, and that the remaining clauses or provisions of that
section merely secured the privileges and rights which attach
to citizenship in all free governments. The aim of the
Freedmen's Bureau and Civil Rights Bills, he declared, was
to break down the system of oppression that existed in the
South. The Civil Rights Bill was to carry out section two
of Article Four, he declared. Had the proposition which he
introduced earlier in the session been adopted, he continued,
the necessity for the whole Amendment would have been re-
moved. This proposition was to inhibit the States as to dis-
crimination against persons on account of race or color in
prescribing the qualifications of voters.^^

Mr. Johnson, who usually affiliated with the Democrats,
favored all of the first section except the clause which pro-
hibited States from making or enforcing " any law which
shall abridge the privileges or immunities of citizens of the
United States." His objection to this clause was that he did
not know what its effect would be, though he was present
when Mr. Howard gave his exposition of it. He therefore
moved that the clause referred to be struck out, but his
amendment was rejected.®^

An effort was made by the opponents of the Amendment
to have the various sections of it submitted as separate
amendments,, hoping thereby to secure the rejection of some
of them, but the advocates of it refused to grant this. This
was the first instance in which either Congress or the States
had to accept or reject an Amendment composed of such dis-
connected subjects.

The resolution was then passed by the Senate, June 8,
V 1866, by a vote of 33 to 11, 5 being absent, with Stockton's
seat still vacant.®*

The resolution, as amended in the Senate, was brought be-
fore the House the next day, June 9, at which time Mr. Bout-
well gave notice that the amendments made by the Senate
would be called up June 13. Immediate action was doubt-

•"Ibid., pp. 3031-35.
"Ibid., p. 3041.
"Ibid., p. 3042.

Fourteenth Amendment Before Congress. 93

less postponed to give the majority time to consult and decide
as to the course which they should pursue in regard to the
amendments. When the question was called up by Mr.
Stevens on the appointed day, one hour was given to the
minority, to be used as they saw fit, notice having been given
that the previous question would be called at 3 or 3 130
o'clock. Mr. Stevens stated that the Union portion of the
Reconstruction Committee had examined the amendments
proposed by the Senate, and that they unanimously reported
that the House ought to concur in them.^^

Very little was said in regard to the first section, but what
was said only corroborated the expressions previously made
as to its effect. Mr. Harding, of Kentucky, an opponent of
the measure, said that it transferred to Congress all the
powers of the States over their citizens, and that Congress
would then have all legislative power.^* Mr. Baker, of Illi-
nois, speaking of it at a later date, July 9, said that he con-
sidered it important as clearing away bad interpretations
which had been given to the Constitution rather than as add-
ing a positive grant of new power.^^

The amendments of the Senate were concurred in by the
House^BylTTOte of i2oTcr'32, 32 being absent."^ Not a
single Republican voted in the negative this time, since the
Senate amendments were considered more favorable than the
original sections.

We have already noted what the members of the House
thought and intended to accomplish by the first section of
the Amendment, and since that section was not modified in
the Senate except by the prefixing of the clause declaring
who were citizens of the United States, thereby merely deter-
mining to whom the privileges and immunities guaranteed
in that section should apply, we may say that there is no
cause or reason to change the conclusion which has been
previously given.

If the analysis of the debates in the Senate be closely fol-

« Ibid., p. 3144.
"Ibid., p. 3147.

Ibid., Appendix, p. 256.
"Ibid., p. 3149.

94 Adoption of the Fourteenth Amendment.

lowed, the reader will see that the expressions or declara-
tions in the two Houses corroborate and strengthen each
other. Mr. Howard, the spokesman of the Committee,
stated clearly and openly what evils were to be remedied
and what objects were to be obtained by it, and there was
no contradiction from any source. Many of the Senators
and speakers did not refer to the first section at all, while
several barely mentioned it. The speeches of Messrs.
Poland, Henderson, Johnson, and Howe, while not saying
that the Amendment would have the effect ascribed to it
by Mr. Howard, support the position taken by him, espe-
cially since none of them questioned his statements.
In conclusion, we may say that Congress, the House and
A- ^ftie Senate, had the following objects and motives in view for

J ivT submitting the first section of the Fourteenth Amendment to
•^ the, States for ratification:

^^^1/ I- To tnake the Bill of Rights (the first eight Amend-

"r^/ ments) binding upon, or applicable to, the States.

|» I 2.JT0 give validity to the Civil Rights Bill.

I 3. To declare who were citizens of the United States.

\ As to the first object — the making of the Bill of Rights
Xa^fcwce throughout the country by giving Congress power
to enforce it — there remains little to be said. We have
already observed the statements made in regard to this
purpose in the course of the debates, and we feel little
hesitancy in saying that it was unquestionably one of the
leading motives for the inclusion of this section in the
Fourteenth Amendment. Congress was also given power
to enact such legislation as it might deem " appropriate "
to enforce this purpose. We will have much evidence to
support this conclusion when we come to consider the legis-
lation which Congress enacted to enforce the provisions of
the Fourteenth Amendment.

As to the second purpose or motive, to give validity to
the Civil Rights Bill, we may state briefly the following
facts. We have already referred to Mr. Fessenden's state-
ment, but even granting that many or most of the majority
believed in the validity of that bill, it remains to be said

Fourteenth Amendment Before Congress. 95

that some of the best constitutional lawyers, notably Messrs.
Johnson and Bingham, thought quite differently. There is
also evidence to show that the friends of the measure were
not so certain of its constitutionality, for they thought it
advisable to put that question beyond dispute and cavil.
This attitude on the part of many is shown by the debates,
though there is another motive which should not be lost
sight of. This was the fear that the Civil Rights Bill
would be repealed as soon as the Democrats came into
power, which contingency, it was feared, would take place
at an early day. This reason was quite frequently stated,
and no doubt it had some weight.

It cannot fairly be said, however, as was charged by
some in the debate, that the men who supported the first
section of the Fourteenth Amendment thereby acknowl-
edged the unconstitutionality of the Civil Rights Bill, thus
stultifying themselves, for it is quite possible that a man
may be practically certain in his own mind that a measure
is constitutional and yet may fear that the Courts will take
a different view of it. It is no doubt true that some, who
doubted the constitutionality of the bill, voted for it, for
several acknowledged that they had their doubts about it,
and a few, blinded by partisan jealousy and sectional hate,
may have voted for it while believing it to be unconsti-
tutional.

It was a time when party spirit was at its height, but it
is absurd to make a wholesale charge that the great major-
ity of those who voted for the bill believed that they had
no power to pass it. There is little doubt that the bill was
unconstitutional, and that the Federal Supreme Court would
have so declared it, had it come before that body, but the
fact remains that the vast majority of those voting for it
must have thought they had the power to pass it.

It may be well to consider the causes which induced Con-
gress to engraft the first section upon the Constitution. We
have considered some of these reasons in connection with
the report of the Reconstruction Committee, but principally
in connection with the passage and enactment of the Freed-

96 Adoption of the Fourteenth Amendment.

men's Bureau and Civil Rights Bills. The debates show
that frequent reference was made to the discriminating leg-
islation of the Southern States, the oppressive and unequal
laws as regard the negroes. Of course these laws were the
excuses, if not the causes, for passing such bills and for the
final incorporation into our fundamental law of that section
which forbids all manner of discrimination and requires
that all shall have the equal protection of the laws. These
causes — the so-called " black laws " of the South — were
unquestionably exaggerated, only the worst instances being
given and then no allowance whatever being made for the
altered position of the negro. Apparently the Radicals did
not see, or, if they did see, ignored the fact that there was
any need of stringent vagrancy laws under the conditions
in which the South was placed after the surrender of Lee.
The political theories and philosophy of Sumner and other
Radicals never took into consideration the well-known fact
that the best of theories often do not work well in practice.
Only in the highest developed and most advanced of en-
lightened communities can abstract ethical and political
theories be applied with safety. The laws of many of the
Southern States may have appeared, on their face, to be
unjust, and some probably were, but it was equally certain
that they did not work as badly and unjustly as was charged
by the reformers and renovators.

.'^Pinally, it may be said that the following objects and
/rights were to be secured by the first section : Life, liberty,
and property not to be denied to any one without due proc-
ess of law ; trial to be by jury; the accused to be confronted
' by the accuser ; property not to be taken without compensa-
tion ; the right peaceably to assemble, to bear arms, etc. ;
^ ' soldiers not to be quartered on any one without his consent ;
\ and cruel and unusual punishments not to be inflicted nor
\ excessive bail to be required. These, Mn addition to the
I rights specifically mentioned in the Civil Rights Bill, were
I to be secured to every citizen, and it was furthermore de-
I Glared who were citizens. It also seems quite evident that
I it was intended to confer upon Congress, by the fifth sec-

Fourteenth Amendment Before Congress. 97

tion, the power to determine what were the privileges and
immunities of citizens, thereby being enabled to secure
equal privileges and immunities in hotels, theaters, schools,
etc., but this phase of the question will be considered in
connection with the subsequent legislation of Congress to
enforce the Fourteenth Amendment.

This partial enumeration shows to some extent what Con-
gress intended to accomplish by the first section. We shall
not consider here the part it was to serve as a political plat-
form with which to go before the people in the exciting
campaign which was soon to follow. The political ques-
tions will be considered in connection with the other sec-
tions which were almost entirely political in their nature.

Section Two of the Amendment,
While the first section of the Amendment is the one
about which we are chiefly concerned, it is necessary to con-
sider the other sections in order to be able to understand the
motives, which might otherwise be obscured, underlying the
action of Congress in proposing and the people in ratifying
that Amendment. In the consideration of the first section,
the speeches, reports and discussions have clearly demon-
strated that a great increase of the Federal powers was to
be brought about by that section, and that notwithstanding
the fact that a great majority of the people at the time
believed that the States should exercise most, if not all, of
the rights and powers which they had up to that time exer-
cised, the Amendment had been ratified. Considered alone,
it would, under these circumstances, be somewhat difficult
to understand why the people and the States had deliber-
ately given up their powers to the Central Government.
The chief purpose in considering the second, third, and
fourth sections of the Amendment is, therefore, to discover,
if possible, any cause or causes which might have had weight
in inducing the people to accept the Amendment, and not
so much for their intrinsic value. The same is not true of
the fifth section, for it was intended to authorize Congress
7

98 Adoption of the Fourteenth Amendment. \

to enforce the other sections. With the exception of the
first and fifth sections, which may be regarded as one sec-
tion, the second section is by far the most important of the
remaining sections for the purpose of this study, though it
has never had any effect whatever since it became a part
of the fundamental law of the land. This is due, however,
to the fact that the Fifteenth Amendment practically super-
seded it, or, as some have said, nullified it.

The second section was political both in origin and de-
sign, and it must be said to the discredit of the 39th Con-
gress that the political part of the Amendment received the
^first consideration^ / It is true that the first section was also
introduced on the second day of the first session of the
39th Congress, but Mr. Stevens was the only one in the
House to propose an Amendment which in any way resem-
bled the first section, while we find three, Messrs. Schenck,
Stevens, and Broomall, who introduced resolutions propos-
ing an Amendment to the Constitution in regard to repre-
sentation.*' These resolutions had the same object in view
and all were referred to the Judiciary Committee. They
differed materially from the second section as finally incor-
porated in the Fourteenth Amendment, but the spirit and
purpose were the same. A few days later Messrs. Blaine
and Pike also introduced joint resolutions proposing an
Amendment to the same effect, but with this striking dif-
ference in form.'^*' The Amendments proposed by Messrs.
Schenck, Stevens and Broomall based representation on
legal voters, while Mr. Blaine's proposition was more nearly
in accord with the section as it now stands in the Constitu-
tion, which makes neither population nor voters the basis
of representation.

The object of all these resolutions was twofold: pri-
marily, to reduce Southern representation, and secondarily,
to enfranchise the negro,^^ the party in power gaining in
either case, for it correctly anticipated that the negro would,

*39th Cong., 1st Sess., pp. 9-10.
.Ibid., pp. 135-36.
Ibid., p. 141.

Fourteenth Amendment Before Congress. 99

if given the franchise, support the party which gave it to
him. It was somewhat freely admitted in the debates that
these were the chief objects of the proposed resolutions,
for only by this means was it thought possible to keep the
control of the government in the hands of the Republican
party. Although it was clearly evident that an Amendment
making legal voters the basis of representation would result
advantageously to the Republican party whether the negroes
were enfranchised or not, the measure was destined to
receive opposition from some of the members of that party.

The compromise in the original Constitution which per-
mitted three fifths of the slaves to be counted in determin-
ing the basis of representation was a concession to the
South, but the adoption of the Thirteenth Amendment had
nullified that provision and had made not only possible but
necessary the real aim of the framers of the Constitution,
namely, the basing of representation on population. The
counting of three fifths of the slaves had been in violation
of this principle.

Whether voters or population should constitute the true
basis of representation is a question still open for discus-
sion, though there is very little doubt but that we would
now have representation based on male electors had it not
been for sectionalism. The resolutions introduced by
Messrs. Stevens, Broomall, and Schenck were acceptable to
the majority in Congress until it was discovered by some
of the Representatives of New England that that section
would lose some of its power in Congress if either of the
proposed measures was engrafted upon the Constitution.
It was to overcome this difficulty that Mr. Blaine introduced
his resolution, and the opposition of the New England Rep-
resentatives was sufficient to change the form of the reso-
lutions which were introduced on the second day of the
session.

As stated by Mr. Blaine, his proposed substitute would
not alter the effect of the original measure so far as the
South was concerned, but that for all practical purposes the
North would be exempt from its provisions. Mr. Blaine,

lOO Adoption of the Fourteenth Amendment.

although candid enough to state what effect the change in
the form of the proposed Amendment would have, tried
nevertheless to give some plausible reason for it. The rea-
son which he gave was that to make voters the basis of
representation would tend to cheapen suffrage and break
down the barriers which made an enlightened electorate
possible, since each State would desire to have as many
voters as possible, and would, therefore, remove all quali-
fications as to education, citizenship, etc. Some of the
New England States made education a qualification for
suffrage and most, if not all the States, at that time did not
permit aliens to vote. It seems impossible to harmonize
Mr. Blaine's reason for not making voters the basis of rep-
resentation and his advocacy and support of a proposition,
the avowed purpose of which was to force the South either
to put the ballot into the hands of an ignorant and illiterate
class or to diminish its representation in proportion to the
number of this class who were disfranchised.

Mr. Blaine made his statement as to the effect which the
proposed Amendment making voters the basis of represen-
tation would have in New England on January 8, and when
Mr. Stevens, two weeks later, although he had introduced
a resolution making voters the basis, presented the follow-
ing resolution from the Reconstruction Committee:

" Representatives and direct taxes shall be apportioned
among the several States which may be included within this
Union according to their respective numbers, counting the
whole number of persons in each State, excluding Indians
not taxed: Promded, that whenever the elective franchise
shall be denied or abridged in any State on account of race
or color, all persons of such race or color shall be excluded
from the basis of representation." ^"^ This resolution was
essentially the same as the one proposed by Mr. Blaine, and
Mr. Wilson, of Iowa, Chairman of the Judiciary Commit-
tee, stated that that Committee, to whom the several reso-
lutions on this subject had been referred, had determined
to report a resolution identical with that which Mr. Stevens

"Ibid., p. 351. ~

Fourteenth Amendment Before Congress. loi

had reportedJ^ This coincidence makes it apparent that
the New England members had brought pressure to bear
to secure a change in the form of the resolution so as not
to affect that section. The resolution as reported on Jan-
uary 22 also provided that direct taxes should be appor-
tioned in the same manner, but this was omitted when it
was reported back by the same Committee on January 31,
1866.

At the time the resolution was reported Mr. Stevens
stated that he wanted it to pass before the sun went down
in order that it might be acted upon by the state Legis-
latures, twenty-two of which were in session at the time.
The minority charged that this haste was due to the fact
that the party in power did not dare to submit the question
of negro suffrage openly and boldly to the people. There
would seem to be some basis for this charge, since most,
if not all, of the Legislatures had been chosen at an excit-
ing time when party feelings were most likely to be pre-
dominant. It was highly probable, therefore, that almost
any measure could be passed under the party whip, and it
was to avoid this that the minority wanted the proposed
Amendment submitted to conventions chosen to pass on
this specific question.'^* The measure met opposition not
only from the minority but also from the extreme Radicals,
the latter opposing it on the ground that it permitted the
States to disfranchise on account of race or color.'^^

The Radicals, especially those who had advocated the
abolition of slavery, were not slow to realize that the South
would gain several representatives by the emancipation of
the slaves, and that with this increased power, together
with what support the minority of the North would give,
their own power would soon be destroyed. Mr. Conkling
gave a table showing the gain or loss of each State under
the proposed Amendment, provided the suffrage remained
as it was in i860. According to this table the North would

'Mbid., p. 351. '

;;ibid.-, p. 355-
Ibid., pp. 386, 406, and Appendix, p. 56.

I02 Adoption of the Fourteenth Amendment.

gain 13 while the South would lose 13, being equivalent to
a net gain of 26 for the North or a net loss of 26 for the
SouthJ«

The original proposition to base representation on voters
would have increased the power of the middle and western
States at the expense of New England. This plan seems
to have been the one favored by the majority of the Repub-
licans, but it was realized that it could not receive the neces-
sary majority in Congress and certainly could not become
a part of the Constitution without the support of Nev/ Eng-
land. Consequently the West yielded in order to secure a
measure that would keep the majority in power.

Mr. Eliot, of Massachusetts, submitted an amendment
which differed from the others in that it contained a pro-
viso that suffrage should not be denied or abridged on
account of race or color.''"' This proposition was not popu-
lar at the time, but it was later incorporated into our funda-
mental law by the Fifteenth Amendment. Mr. Pike ap-
proved of the measure, but stated that it was generally
acknowledged that such an amendment would be rejected
by the States and that it would be useless, therefore, to
submit it. In regard to the Blaine proposition, which was
then before the House, Mr. Pike, a member of the major-
ity, declared that its purpose, as he understood it, was to
coerce the South into giving what they (Congress) were
unwilling to do directly. In his opinion, there could be
but two objects in view : the lessening of the political power
of the South and the protection of the negroes, the latter
of which would not be accomplished by adopting the
Amendment, he declared, and the former might be evaded
on other grounds.'^* Others took also the position that
it was not the proper thing to try to accomplish some-
thing indirectly which should be done directly.''® The pro-
tection of the negro was made the cloak under which some
hoped to conceal their partisan motives, but it was too

"Ibid., p. 357.
"Ibid., p. 406.
"Ibid., p. 407.
"Ibid., Appendix, p. 56.

Fourteenth Amendment Before Congress. 103

transparent to deceive any one who gave the least attention
to the subject. It is interesting to see how the negro was
made use of for the most contradictory legislation. In the
first place, the Thirteenth Amendment was urged as a neces-
sity to give freedom to a class which slavery had degraded
and made ignorant ; we next see negro suffrage in the Dis-
trict of Columbia advocated as if the freedmen were capable
of exercising the highest functions and privileges of citizen-
ship ; the Freedmen's Bureau was then declared to be neces-
sary, as the negroes were weak and ignorant and needed a
guardian as it were ; and then finally universal suffrage was
urged as the panacea for all their troubles.
\ Mr. Stevens, speaking of the proposed resolution, after it
had been reported back January 31, declared boldly that he
preferred it to one declaring for universal suffrage, as th^
latter would give the South full representation, a thing
which might interfere with Radical plans, unless there were
loyal men enough to control the representation from that sec-
tion. " But I do not want them to have representation," he
stated unequivocally, " I say it plainly — I do not want them
to have the right of suffrage before this Congress has done
the great work of regulating the Constitution and laws of
this country according to the principles of the Declaration of
Independence."*'' He seemed to fear that the South might
be able to control the negro vote at the time and was un-
willing to take any risks until the Constitution had been so
amended as to intrench the Radicals in power.

Mr. Schenck, of Ohio, moved a substitute for the resolu-
tion as reported by Mr. Stevens. This substitute was to base
representation on voters, but it was defeated by a vote of 131
to 29, those in favor of it being almost entirely from Ohio,
Indiana, Illinois and a few other States in the Middle West
and West. It is more than probable that a majority of the
Republican party favored the Schenck substitute, but the
statement of Mr. Stevens that the Amendment could not be
ratified in that form carried great weight and this was also
made evident by the position of the New England members.

" Ibid., p. 536.

104 Adoption of the Fourteenth Amendment.

The resolution as reported by Mr. Stevens from the Recon-
struction Committee was adopted by a vote of 120 to 46.^^
Mr. Stevens stated that he had at first favored a proposition
similar to the substitute offered by Mr. Schenck, but that
when he saw that it was impossible to secure it he gave it up.
He also expressed the desire that his proposition 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 " would be brought forward. In his opinion
it was unwise to join it with the proposition in regard to rep-
resentation,^^ and this statement should be remembered
when we come to consider this question later. Mr. Benja-
min, of Missouri, opposed Mr. Schenck's proposition on the
ground that the representation of Missouri would be reduced
from 9 to 4, since the Confederates had been disfranchised
in that State.

The resolution was destined to meet such opposition in
the Senate as to foreshadow its defeat. The extreme Radi-
cals, like Sumner and Yates, joined with the Democrats,
made it impossible to pass it by the necessary two thirds
vote, but what a strange combination! To think of Sauls-
bury and Garrett Davis voting with Sumner, Yates and
Pomeroy! The Democrats were opposed to the measure in
toto, while the extreme Radicals opposed it because it seemed
to sanction the right of the States to disfranchise on account
of race or color. It was openly acknowledged in the debate
that an Amendment denying the right of the States to deny
suffrage on account of race or color, which Mr. Henderson
had proposed, could not possibly be ratified by the necessary
three fourths of the States. This opinion was held by such
men as Fessenden, Wilson, Williams, and others.

Mr. Henderson, who was in a sense an extreme Radical,
yet apparently an honest one, fearlessly attacked the position
of those who were for steering a middle course, showing
that at the beginning of the session they had appeared en-
thusiastic for an Amendment basing representation on voters,

"Ibid, p. 538. ~

"Ibid., p. 537.

Fourteenth Amendment Before Congress. 105

but that this enthusiasm had suddenly grown cold and that
the proposition was in disfavor. The proposition basing
representation on voters was at least fair and equal, leaving
each State to settle the question of the franchise for itself,
putting no stigma on any State, and applying equally to the
North and to the South, though of course its main purpose
was to affect the South. If the provision in the Constitu-
tion basing representation on population was to be changed
at all, then it seems that no fairer or more just basis than
that of legal voters could be obtained. Mr. Henderson
stated that this met with the hearty approval of the members
of Congress, they being as " ready to accept it, as they would
accept a demonstration of Euclid." As has been noted, the
discovery of Mr. Blaine that the New England States would
lose slightly if this plan were accepted caused this sudden
change of feeling, for of course the suffrage laws and the
representation of the loyal States must not be affected.
Consequently the new plan was concocted.

Mr. Henderson clearly pointed out the sectionalism and
partisanship in the change which was made in the form of
the proposition in that the South would be made to bear the
penalty for denying suffrage to the negro, while the North
and East could deny it with impunity. The second difficulty
to be overcome was the selection of words which would have
this effect on the South, while at the same time not arousing
the prejudices of the North against negro suffrage. Mr.
Henderson stated that both of these difficulties had been sur-
mounted in the proposition which had been reported from the
Reconstruction Committee and passed by the House, and
emphatically declared that its purpose was to enfranchise
the negro in the South while keeping him disfranchised in
the North. It appeared equal, yet operated unequally con-
tinued the Senator, and began by " assuming that the object
to be attained by its adoption was wrong. The object is
negro suffrage." According to Mr. Henderson the predomi-
nant motive was not the elevation of the negro for his own
good, but the punishment of the South,*^ and in this view he

''Ibid., Appendix, pp. 115-22.

io6 Adoption of the Fourteenth Amendment.

was undoubtedly correct. More weight is to be given to his
statements in this respect from the fact that he affiHated with
the Radicals, usually voting with them, and so not so likely
to exaggerate when exposing his own colleagues.

In fact, as Mr. Hendricks pointed out, the resolution based
representation on neither population nor voters, but was
rather a mingling of the two, being a political hybrid purely
to serve political purposes, since some States were permitted
to count the non-voting population, while others were not.**
The resolution was to be so arranged that appeal could be
made to Northern prejudices and self-interests without in-
spiring any antipathy as regards the racial question. The
motion to put the resolution on its third reading, which was
really a test vote, received only 25 yeas to 22 nays, far short
of the necessary two thirds.®** This was reconsidered of
course in order to give an opportunity to withdraw or drop
the resolution, and so prevent its actual defeat.

This action on the part of Congress is sufficient to show
that the first subject to be considered was a political one, for
during this time we hear nothing of the resolution which
later became the first section. It was also demonstrated that
a proposition basing representation on voters would be
acceptable to most of the Republicans with the exception of
the New England members. Before proceeding further
with this question in Congress, it may be well to see what
was taking place in the Reconstruction Committee on this
particular phase of reconstruction, for it was this Committee
which really decided what form the different propositions
should take. All proposed measures as to reconstruction
were referred to this Committee without debate.

By the journal of that Committee, further evidence is
given to show that the question of party, and not of right and
justice, was given precedence. At the first meeting of the
Committee, January 6, 1866, a committee of three was ap-
pointed to wait upon the President and request him to defer
further Executive action until the Reconstruction Commit-

" Ibid., p. 878.
" Ibid., p. 1289.

Fourteenth Amendment Before Congress. 107

tee should take action or decide on some plan. At the next
meeting, January 9, this sub-committee reported orally that
the President had been informed " that the Committee de-
sired to avoid all possible collision or misunderstanding be-
tween the Executive and Congress in regard to the relative
positions of Congress and the President," and that the Presi-
dent, while saying that it was desirable to advance recon-
struction as rapidly as possible, consented to do no more for
the present in order to secure harmony of action. The fol-
lowing resolution was submitted at this meeting by Mr. Fes-
senden, its chairman, and unanimously adopted. " Resolved,
That all the resolutions submitted to or adopted by this
Committee, the views expressed in Committee by its different
members, all votes taken, and all other proceedings in Com-
mittee, of whatever nature, be regarded by the members of
the Committee and the clerk as of a strictly confidential char-
acter, until otherwise ordered."

It was also at this second meeting that the first resolution
proposing an Amendment to the Constitution was submitted.
It was to base representation on legal voters and was sub-
mitted by Mr. Stevens. This resolution was discussed, but
further consideration postponed until the meeting of the
Committee that evening. The entire evening session was de-
voted to a discussion of it, but no agreement was reached.
Mr. Fessenden introduced a resolution which is quite signifi-
cant, since it proposed that the Southern States should not
be allowed to participate in the government until the basis of
representation had been modified and the rights of all per-
sons amply secured by constitutional provisions. This reso-
lution was not considered at the time, however.*®

At the third meeting, three days later, thirteen of the
Committee voted that the basis of representation, as then
provided in the Constitution, ought to be changed. Mr.
Grider, of Kentucky, was the only vote in the negative, Mr.
Rogers being absent. After the vote on this proposition
had been taken, Mr. Johnson, of Maryland, submitted this
resolution : " Resolved, That in the opinion of this Com-

** Reconstruction Committee Journal, p. 5.

io8 Adoption of the Fourteenth Amendment.

mittee, Representatives should be apportioned among the
several States according to their respective number of legal
voters." This must have been in substance the same as
the one submitted by Mr. Stevens at the previous meeting,
and the vote on it is rather interesting. Messrs. Grimes,
Johnson, Stevens, Washburne, Bingham, and Blow voted
for it, while Messrs. Fessenden, Harris, Howard, Williams,
Morrill, Grider, Conkling, and Boutwell voted against it.
Mr. Rogers was absent.^^ It will be noticed that every one
from New England voted in the negative, and it may prop-
erly be inferred that they had been influenced by the state-
ment of Mr. Blaine just four days before as to the effect of
such an Amendment on New England. Mr. Grider's oppo-
sition to any change in the basis of representation was prob-
ably due to the fact that it would cause his State to have
fewer Representatives.

A sub-committee consisting of Messrs. Fessenden,
Stevens, Howard, Conkling, and Bingham was appointed
at this meeting, to which all propositions relating to the
question of representation were to be submitted. The par-
tisanship of the Committee was strikingly shown in the
composition of this sub-committee, for the minority was
given no representation at all. It is all the more noticeable
from the fact that Mr. Johnson was favorably disposed
towards a change in the method of apportionment, as was
disclosed by his votes in the Committee. The minority was
no doubt denied recognition on the sub-committee in order
that an opportunity might be given to discuss the effect of
the several propositions upon the party interests without any
danger of their reasons being made public.

When the Committee met January 20, the sub-committee
reported two propositions for the consideration of the Com-
mittee. To the proposition which was selected by the Com-
mittee was to be joined the favorite section of Mr. Bing-
ham. Mr. Stevens opposed uniting the two, and moved that
the proposed section be separated from the resolution which
might be selected by the Committee. This motion prevailed

"Ibid., p. 7.

Fourteenth Amendment Before Congress. 109

by a vote of 10 to 4, with i absent, thus clearly showing
that the consensus of opinion at this time was that the two
sections were so dissimilar and unrelated as to make it ad-
visable to report them as separate articles.

The first of the proposed resolutions submitted by the sub-
committee is as follows : " Representatives and direct taxes
shall be apportioned among the several States within this
Union according to the respective number of citizens of the
United States in each State ; and all provisions in the Con-
stitution or laws of any State, whereby any distinction is
made in political or civil rights or privileges, on account of
race, creed, or color, shall be inoperative and void." The
second one reads as follows : " Representatives and direct
taxes shall be apportioned among the several States which
may be included within this Union, according to their re-
spective number, counting the whole number of citizens of
the United States in each State ; provided, that, whenever the
elective franchise shall be denied or abridged in any State
on account of race, creed, or color, all persons of such race,
creed, or color, shall be excluded from the basis of repre-
sentation."^* The second resolution was chosen by a vote
of II to 3, one being absent. The negative votes were cast
by Messrs. Fessenden, Howard, and Grider. No reason
was given for this choice, but it seems proper to infer, from
what had been said in Congress, that it was due to the fact
that the Committee feared that the first one was too strong
in regard to negro suffrage, since it would nullify nearly
every state law in respect to that subject.

It was perceived almost immediately that the measure
which had been decided upon was drawn too loosely to
accomplish the purpose of those who were most anxious to
change the basis of representation, since it might affect the
North as well as the South, for aliens were not citizens.
Furthermore, the Dred Scott decision had not been reversed,
and consequently negroes were not citizens. Mr. Stevens
proposed an amendment to the measure declaring who were
to be considered citizens of the United States, but Mr. Conk-

"Ibid., p. 9.

no Adoption of the Fourteenth Amendment.

ling's proposal to strike out the words " citizens of the
United States in each State " and to insert in lieu thereof
" persons in each State, excluding Indians not taxed " was
adopted by a vote of ii to 3, Messrs. Fessenden, Stevens,
and Bingham casting negative votes. The word " creed "
was stricken out on motion of Mr. Morrill. The proposed
article as amended, was then adopted by a vote of 13 to i,
Mr. Rogers casting the only negative vote. Mr. Johnson
was absent. Messrs. Howard and Grider stated that they
retained the right to support a proposition more in accord-
ance with their views if the opportunity presented itself in
their respective houses. It was then ordered that the reso-
lution be reported to the Senate and House.

No reason was given in the Committee for substituting
" persons " for " citizens," but we do not have to rely en-
tirely upon our own minds in stating what the change on
its face suggests, for we have the testimony of the person
who made the motion which resulted in the change. The
reasons given by Mr. Conkling when the matter was under
discussion in the House are as follows : ( i ) Because " per-
sons," not " citizens," had always constituted the basis ; (2)
because it would narrow the basis of taxation on account of
the unequal number of aliens in the several States; (3)
because many of the States held representation in part by
reason of their aliens, and that the Legislatures and people
of such States would not ratify an Amendment which would
reduce their representation. It needs but a cursory glance
to see that the third reason is the only one which really had
any weight. If the first reason was to be given any con-
sideration, it would be equally applicable to the question of
changing the basis of representation at all, since it might
be said with equal force that the basis given in the Consti-
tution should not be changed. The second reason needs
no remark, since the phrase " and direct taxes " was after-
wards stricken out by the Coipmittee, and besides direct
taxes have been used so infrequently by the Federal Govern-
ment as to make it of little moment. There seems to be
little doubt but that the word " citizens " would have re-

Fourteenth Amendment Before Congress. 1 1 1

mained had it not been for the third reason. It might be
stated with almost equal accuracy that the change would
have been made even if the Amendment could have been
adopted without the change, since it was not the desire or
purpose of the majority to reduce their own power. Mr
Conkling stated that they wanted to change the Constitu-
tion as little as possible — just enough to secure the object
aimed at, which was evidently the reduction of the polit-
ical power of the South.®"

The resolution, after some debate in the House, was re-
ferred back to the Committee, and was laid before the Com-
mittee by Mr. Stevens, January 31. After discussion, Mr.
Stevens moved to strike out " and direct taxes," which was
agreed to by a vote of 12 to 2. Mr. Johnson moved to
amend the proviso to read as follows : " Provided, That
whenever the elective franchise shall be denied or abridged
in any State on account of race or color, in the election
of the members of the most numerous branch of the state
Legislature, or in the election of the electors for President
or Vice President of the United States, or members of Con-
gress, all persons therein of such race or color shall be
excluded from the basis of representation." This was re-
jected, but Mr. Johnson, in order to test the sense of the
Committee submitted another amendment to the effect that
the condition of slavery should be included among the
grounds of disqualifications referred to in relation to the
elective franchise. This amendment was rejected by a vote
of 7 to 6. Mr. Stevens moved that the resolution as
amended be reported back to the House with the recom-
mendation that it do pass. This motion prevailed by a vote
of 10 to 4, Mr. Fessenden voting with the Democrats against
reporting the resolution. It was this bill which was passed
by the House and practically killed in the Senate, and we
hear nothing more of it in either House until it was re-
ported April 30, as a part of what became the Fourteenth
Amendment. While the resolution in the form in which
it passed the House in February was being discussed, Mr.

" Globe, 39th Cong., ist Sess., p. 359.

112 Adoption of the Fourteenth Amendment.

Lawrence, of Ohio, a Republican, asked with what grace
the North could say to the South " you shall have no repre-
sentation for freedmen not enfranchised " while insisting
upon representation for aliens, women, and children.®"

Although the records of Congress are silent as to what
was transpiring during the interval between the defeat of
the proposed Amendment in the Senate, there is much evi-
dence to show that the majority were often in consultation
to devise ways and means by which their measures might be
passed. The great problem was so to frame and unite the
several measures as to secure the necessary two thirds in
the Senate, for it had been clearly demonstrated on several
occasions that practically any measure could be forced
through the House.

Five months had passed since the assembling of Con-
gress without any definite plan from the Reconstruction
Committee. Not until April 30 was there any plan which
attempted to deal with the question of reconstruction. To
be sure two separate resolutions had been reported from the
committee, but the one fathered by Mr. Bingham did not
even reach a vote in the House, so great was the opposition
to it by members of the majority, and the other one met a
similar fate in the Senate. The people were getting rest-
less and dissatisfied with the progress made by Congress,
since they wanted to know what conditions Congress was
going to require. The party leaders realized the danger of
permitting this dissatisfaction to grow and of going before
the people in the fall election with no plan for the restora-
tion of the Southern States. The great mass of the people
thought the Union should be restored as soon as possible,
and it became necessary to submit some plan, whether a plan
that could be ratified or not.

With two failures to the credit of the Reconstruction
Committee, it was easily perceived that a third one might
be disastrous to the party. It was at such a time and under
such circumstances that the Reconstruction Committee sub-
mitted the draft of the Fourteenth Amendment on April 30,

"Ibid., p. 405.

Fourteenth Amendment Before Congress. 113

after five months of deliberation, consultation, and taking of
testimony, as its plan for restoration, or as might be prop-
erly said of it, as its campaign platform, for it was to serve
this purpose also.

It is necessary, therefore, to examine the proceedings of
the Committee to see what steps were taken to unite the
several propositions into one which was so entirely dis-
similar and disconnected. The records as given in the Jour-
nal of the Reconstruction Committee show that the first pro-
posal to bring the different resolutions together was made on
April 21, only nine days before it was reported to Congress
in this new form. The plan was submitted by Mr. Stevens,
though its author was Robert Dale Owen, as has been stated
in the earlier pages of this chapter. The question of suf-
frage was incorporated in the second and third sections,
which were as follows :

jl* Sec. 2. From and after the 4th day of July, 1876, no
discrimination shall be made by any State, nor by the United
States, as to the enjoyment by classes of persons of the right
of suffrage, because of race, color, or previous condition of
servitude.J
7" Sec. 3. Until the 4th day of July, 1876, no class of per-
sons, as to the right of any of whom to suffrage discrimi-
nation shall be made by any State, because of race, color, or
previous condition of servitude, shall be included in the basis
of representation."^^

The first of these sections was adopted by a vote of 8
to 4, Mr. Boutwell voting with the Democrats, and the sec-
ond one was adopted by a vote of 9 to 3, a strict party vote."^
Messrs. Fessenden, Harris, and Conkling were absent.
The entire resolution, including these two sections, was or-
dered to be reported to both Houses by a vote of 7 to 6,
but this was later reconsidered by a vote of 10 to 2 on
account of the absence of Mr. Fessenden, the Chairman
of the Committee.®^ This was on April 25, and when the

** Reconstruction Committee Journal, p. 24.
** Ibid., pp. 25-26.
»* Ibid., p. 32.
8

114 Adoption of the Fourteenth Amendment.

Cgmmittee met April 28, Mr. Stevens moved to strike out all
of section 2 and " until the 4th day of July, 1876 " of sec-
tion 3. This motion prevailed by a vote of 12 to 2, Mr.
Fessenden not voting. Mr. Williams then moved t-o strike
out section 3, and to insert the following :
,*' Representatives shall be apportioned among the several
' States which may be included within this Union according
to their respective numbers, counting the whole number of
persons in each State, excluding Indians not taxed. But
whenever in any State the elective franchise shall be denied
to any portion of its male citizens not less than 21 years of
age, or in any way abridged, except for participation in re-
bellion or other crime, the basis of representation in such
State shall be reduced in the proportion which the number of
such male citizens shall bear to the whole number of male
citizens not less than 21 years of age."®*

Mr. Williams' proposition was debated at some length and
finally adopted by a vote of 12 to 3, Messrs. Howard, Ste-
vens, and Washburne being in the negative. The proposi-
tion as submitted by Mr. Williams was the one presented as
v^ection 2 of the proposed Amendment on April 3Qe^

The phraseology of this section is quite different from
that of the Amendment which passed the House January
31 and which was defeated in the Senate March 9, though
the two measures are practically the same in essence. The
main difference is that the South would be permitted, under
the proposition of April 30, to extend the suffrage gradually
to the negroes, and to get representation for those enfran-
chised. The difference was largely one of theory and prin-
ciple, however, since all the negroes were practically in the
same condition and the effect of both measures would be
the same to all practical purposes. The change in the form
of the measure would be more acceptable to those who de-
manded that the same rule should apply to all sections.

One of the objections of the extreme Radicals to the

•*Ibid., p. 33.

Fourteenth Amendment Before Congress. 1 1 5

resolution which passed the House January 31 was that it
permitted the States to disfranchise on account of race or
color, a principle which they declared they would never vote
to engraft upon our Constitution, It must be said that this
view of the resolution was rather far-fetched, since it cer-
tainly never recognized any principle or power which was
not already in the Constitution or which had not always been
exercised by the States. The change in the form of the
resolution was no doubt made to meet the objections of such
Radicals, however, since their votes were necessary in the
Senate. The change in the resolution also met the objec-
tions of the men from the border State of Missouri where
the Confederate soldiers had been disfranchised. The reso-
lution as presented was so framed as to be as little objec-
tionable as possible to the North, since it would not deprive
that section of its representation for foreigners nor would
the New England States lose anything on account of their
greater number of women, while it at the same time prac-
tically made voters the basis of representation in the South.
The criticism of Senator Henderson when the other reso-
lution was before the Senate is equally applicable to this
one. It is objectionable in that in theory it bases represen-
tation neither on population nor on voters, but a mingling
of both, though its effect, if the opportunity had been pre-
sented and the intention of the framers carried out, would
have been practically to base representation on voters in
some States and on population in others. For example,
Missouri could disfranchise all who aided the South during
the war and the Northern and Western States might dis-
franchise all foreigners who had not been naturalized with-
out any loss of representation, but the South could not dis-
franchise the negroes on account of race or color or by an
educational qualification which applied to all alike without
having its representation reduced proportionally. The reg-
ulation of the suffrage was left to the States, as had always

Ii6 Adoption of the Fourteenth Amendment.

been the case, but with such a limitation upon it that few
States would exercise it to any great extent, since the pen-
alty was so severe as to prevent it.

The resolution did not come up for discussion until May
8, when Mr. Stevens, who opened the debate, declared that
the second section, the one now under consideration, was
the most important section in the proposed Amendment,
since it could compel the States to grant universal suffrage.
He admitted that the prejudice in the South against the
negro might prevent that section from granting the suffrage
for some years, but that the fact that that section would
have only thirty-seven Representatives in the House if the
ballot were not given to the negro would soon force them
to grant it. The delay, however, would not be injurious,
in his opinion, since it would give Congress time to enact
such legislation or propose further Amendments if needed.
Furthermore, he thought that the negroes would be more
capable of exercising the ballot at the end of five years.
Mr. Stevens admitted that he preferred the resolution which
had been defeated in the Senate.®"

The minority characterized the section as sectional and
partisan, its object being to postpone the restoration of the^
Union and to perpetuate the party in power.^® Mr. Gar-
field, though preferring an out and out declaration for uni-
versal suffrage, thought that the section was free from the
objection which defeated the former resolution in the Sen-
ate.®^ Mr. Thayer advocated the proposition on the ground
that the South would receive thirteen additional Represen-
tatives by the abolition of slavery.®^ His remarks, as well
as those of many of the speakers, would indicate that the
section was intended to apply to the South only. The re-
mark of Mr. Boyer, in the course of the debate, that the

•° Cong. Globe, 39th Cong., ist Sess., p. 2459.

Ibid., p. 2461.
■"Ibid., p. 2463.
"Ibid., p. 2464.

Fourteenth Amendment Before Congress. 117

design of the Committee was to solve the problem "how
not to do it," tersely expressed what many thought to be the
real status of affairs at the Capitol. His remark had ref-
erence to the problem of preventing the restoration of the
Southern States until after the presidential election, and he
was of the opinion that the Committee had met with re-
markable success. Mr. Boyer did not deny that the basis
of representation needed changing, but he thought all the
States should participate in it, and that since reform was
undertaken, it should be impartially carried out; if the
present system of apportioning Representatives gave the
South undue weight in the House, it also gave a still greater
disproportion of power to the New England States in the
Senate, for that section, with a less population, had 12
Senators while New York had only 2.®^

The argument of Mr. Kelley, of Pennsylvania, an able
Representative, was that one red-handed rebel in South
Carolina ought not to have equal power with three patriotic,
loyal citizens of the North.^*"' Mr. Boutwell, a member of
the Reconstruction Committee, declared that he did not
think that two rebel soldiers " whose hands were dripping
with the blood " of Union men should have the same power
in Congress as three Union soldiers.^"^ The same senti-
ment was also voiced by Mr. Eckley and others,^"- Such
arguments, arguments which would now have little or no
weight, had great influence at the time, it must be said with
regret. Mr. Raymond, a Johnson Republican, opposed the
January resolution, but supported the second section as now
before the House, believing that it was more just and in
better form.^"^ Mr. McKee candidly acknowledged that he

" Ibid., p. 2466.
""Ibid., p. 2468.
"'Ibid., p. 2508.
^"'Ibid., p. 2535.
"" Ibid., p. 2502.

ii8 Adoption of the Fourteenth Amendment.

supported the measure in order to perpetuate his poHtical
party/*'* but this was of course an unusual admission.

Mr. Miller, of Pennsylvania, regarded the second section
as the most important section of the proposed Amendment,
declaring that it was the " corner-stone of the stability of
our Government."^"^ The time was opportune for securing
amendments to the Constitution, he continued, since there
were large majorities in both branches of Congress ; he
furthermore hoped that the Governors of the States whose
Legislatures had adjourned would convene them as soon as
the Amendment was passed by Congress, thus preventing
its submission to the people,

Mr. Stevens closed the debate, though he made no refer-
ence at all to the second section. The measure was then
passed. May lo, 1866, by a vote of 128 to 37.^°®

The resolution was not considered in the Senate until
May 23. There seems to be no reason for this delay except
that Senator Fessenden, the Chairman of the Reconstruction
Committee, was too unwell to take charge of it. When it
was brought before the Senate, Mr. Howard opened the
discussion and took general charge of the debate, since Mr.
Fessenden's health was such as to prevent him from doing
so. Mr. Howard, who was also a member of the Recon-
struction Committee, seems to have been well qualified to
act as Mr. Fessenden's substitute, though he was more rad-
ical than Mr. Fessenden. He admitted that the second sec-
tion was not all that he desired, thinking that suffrage
should be secured to some extent at least to the negroes.
According to him, the question of suffrage was left with the
States. The reason for this was that it was unlikely that
three fourths of the States could be induced to ratify an
Amendment which granted the right of suffrage, m any
degree or under any restrictions, to the negroes. The

;»*Ibid., p. 2535.
'"Ibid., p. 2510.
^"•Ibid., p. 2545.

Fourteenth Amendment Before Congress. 1 19

Amendment was to apply to all the States, but he admitted
that it was so drawn as to make it the political interest of
the South to extend the suffrage to negroes, otherwise los-
ing twenty-four Representatives in Congress. To his mind
it was unfair and unjust that the Southern States should
come back into the Union stronger by ten Representatives
than when they withdrew in 1861/°^

Mr. Wilson, of Massachusetts, submitted the following
in lieu of the second section :

" Representatives shall be apportioned among the several
States according to their respective numbers, but if in any
State the elective franchise is or shall be denied to any of
its inhabitants, being male citizens of the United States,
above the age of twenty-one years, for any cause except
insurrection or rebellion against the United States, the basis
of representation in such States shall be reduced in the pro-
portion which the number of male citizens so excluded shall
bear to the whole number of male citizens over twenty-one
years of age." Mr. Wilson regarded the distinction be-
tween " citizens of the State " and " inhabitants, being citi-
zens of the United States," as a vital one,^°* and this was
the only real difference between the original section and the
one he submitted. His suggestion was afterwards incor-
porated into that section, and for what purpose we will here-
after consider.

Mr. Stewart took the position that the section could be
justified on no other theory than that the negro should be
allowed to vote and that this theory must be vindicated
before the people, since it did not exclude the non- voting
population of the North. The section, he declared, recog-
nized that there was no wrong in excluding aliens and
others from the suffrage, while at the same time declaring
that if suffrage was denied to the negro, he would not be
included in the basis of representation. It was perfectly

"" Ibid., pp. 2766-67.
"" Ibid., p. 2770.

I20 Adoption of the Fourteenth Amendment.

proper, therefore, for him to ask "Why this inequality?
Why this injustice?" He asserted, furthermore, that the
world would brand their efforts as a struggle for partisan
power if they relied too much on expediency. ^'>"

On the same day. May 24, Mr. Sherman proposed an
amendment to strike out sections three and four and to
insert in their stead a section basing representation on the
qualified voters in each State, including those disfranchised
on account of rebellion; and a section to the effect that
direct taxes should be apportioned among the several States
according to the taxable property in each State.^^"

Mr. Sherman proposed his amendment on May 24, but
the resolution was not considered again until May 29. The
intervening time was not idly used, however, since the Sen-
ate remained in session but a short time on the two days,
Friday and Monday, in which it was in session, in order
to give the Republicans an opportunity to discuss the whole
measure in caucus.^^^ The several propositions, by way of
substitutes or amendments, had made it evident that there
was danger that the entire resolution might again be de-
feated or so radically altered as to render it valueless in the
eyes of the party leaders or subject it to an almost certain
rejection by the States. The latter event was especially to
be avoided, since, if a proposition which the people disap-
proved were submitted, the reaction might be so great as
to involve the loss of the control of the next House by
the Radicals. Consequently it was decided to defer further
debate or action in the Senate until a definite programme
had been decided upon by the majority. Unity of action
was necessary if anything was to be accomplished, and it
was soon perceived that so many objections had been or
would be raised as to endanger its passage by the Senate
or its ratification by the States.

"' Ibid., pp. 2800-03.

"' Ibid., p. 2804.

"" N. Y. Herald, May 26, 1866.

Fourteenth Amendment Before Congress. 121

A party caucus was called, therefore, to decide just what
changes, if any, were to be made in the plan as submitted
by the Committee of Fifteen. It would be both interesting
and valuable to know what took place in the caucus, for no
doubt there was a free expression as to what was to be
accomplished by the proposed Amendment, since the meet-
ing was behind closed doors and only those Republicans
being present who were pledged to abide by the action of
the caucus. Party caucuses had been held before this time,
but never before had such policy been pursued, either in
framing or amending the Constitution. It is possible, by
such methods, to amend the Constitution by an actual min-
ority of Congress instead of the two thirds which is re-
quired by the Constitution, since a majority of the two
thirds can bind the others. In this way an amendment
might be submitted by Congress which a majority of its own
members, if acting and voting independently, might disap-
prove. This was very probably true of the second section,
for there seems to be evidence to show that a majority of
the Senators preferred a measure basing representation on
voters. It is unnecessary to remark that no purely party
measure should ever find a place in a Constitution.

Mr. Barnes, a contemporary writer, says of this caucus:
" The several days during which the discussion was sus-
pended in the Senate were not fruitless in their eflFect upon
the pending measure. The Amendment was carefully con-
sidered by the majority in special meetings, when such
amendations and improvements were agreed upon as would
harmonize the action of the Republicans in the Senate."

The Republican party consisted of two divisions of fac-
tions— the extreme Radicals like Sumner, Wade, and Yates,
and the conservative Radicals like Fessenden, Trumbull,
and Morgan. It was necessary to harmonize these two fac-
tions if anything was to be accomplished in the way of

122 Adoption of the Fourteenth Amendment.

amending the Constitution. This condition may, to some
extent, justify the caucus, but approval should seldom, if
ever, be given to a party caucus upon which such an im-
portant thing as changing the fundamental law depends.

When the Amendment was again before the Senate, May
29, certain amendments were made as the Result of the cau-
cus. The second section was amended by striking out
" citizens " and inserting' " inhabitants, being citizens of
the United States." This was the amendment which had
been submitted by Mr. Wilson a few days before. Mr.
Howard stated that the change was made in order to har-
monize sections one and two, but it was evidently done to
make sure that the Southern States could not evade the
measure by holding that negroes were not citizens of the
several States even if declared to be citizens of the United
States. The amendment was agreed to without a divi-
sion.^^^

Mr. Hendricks pointed out the fact that the section did
not rest upon the principle that those who were regarded as
unfit to vote by the States should not be represented, as had
been claimed by the advocates of the measure, since it was
so framed as to permit the Northern and Eastern States
to retain their twenty Representatives based upon a non-
voting population. It also permitted Maryland, West Vir-
ginia, Tennessee, and Missouri to have representation for
those they regarded as unfit to vote. His amendment, how-
ever, was rejected.^^*

A favorite argument with the majority was that the
South would come back with increased power if the basis
remained unchanged. To test the sincerity of that argu-
ment, Mr. Hendricks proposed an amendment to the section
providing that only three fifths of those who had been
released from servitude should be counted in the basis, thus

'Cong. Globe, 39th Cong., ist Sess., p. 2897.
Ibid., p. 2939.

Fourteenth Amendment Before Congress. 123

restoring the status quo in regard to representation as it
existed prior to the war, but this was not accepted.^^*

Mr. DooHttle moved as a substitute for the section an
amendment identical in meaning to that proposed by Mr.
Sherman on May 24, that is, basing representation on male
electors over 21 years of age. He discussed his amendment
at length, showing that New England would lose 4 while
the Northwest would gain 12 Representatives. If suffrage
laws remained unchanged, the South would lose 15 and the
North would gain 15 Representatives on a voting basis, but
the amendment was rejected by a vote of 31 to 7.^^° An
objection brought against Mr. Doolittle's amendment was
that it would tend to degrade suffrage by inducing the
States to grant the privilege to aliens and others. To test
the sense of the Senate and to avoid that objection, he sub-
mitted another amendment in which " male citizens " who
were qualified by state law to vote for members of the most
numerous branch of the Legislature was substituted for
" male electors," but this was defeated by the same vote,
31 to 7."«

Mr. Poland thought that population, not voters, should
constitute the basis of representation, though he was op-
posed to having the negroes included in the basis unless they
were allowed to vote. In case suffrage was granted to
them, there would be some Republicans from the South,
thus insuring the continued dominance of his party, he
declared, and that there would be no reasonable fear of
losing control of the Government if the ballot was not put
in the hands of the negro and the South's representation
reduced accordingly.

The rejection of the amendments submitted by Mr. Doo-
Httle clearly brought out the fact that the Republicans were
bound by the caucus. Mr. Sherman did not hesitate to

"* Ibid., pp. 2940 and 2942.
"*Ibid., pp. 2942-44 and 2986.

"'Ibid., p. 2991

124 Adoption of the Fourteenth Amendment.

express his opinion in favor of Mr. Doolittle's amendment,
holding that it embodied the true principle upon which rep-
resentation should be based, and that if it were adopted, the
South would feel no local jealousy, since it would apply
to all sections alike. " Then every citizen," he continued,
" would stand equal before the law, with precisely the same
political power, no more and no less. I say, therefore, that
this is the only amendment to the propositions now sub-
mitted to us that I desire to make ; but I feel bound by the
action of my political friends to vote against this amend-
ment. I place my vote distinctly on this ground." For
political reasons, therefore, he voted for a proposition which
he knew to be unfair and unjust, for he said of it : "It
endeavors to save representation for certain portions of our
country where they have a population whom they deprive
of the right to vote; but it deprives the South of represen-
tation for a population which has no right to vote.""^

Mr. Wilson, of Massachusetts, in reply to Mr. Sherman's
remarks, stated, as his reason for opposing the amendment
offered by Mr. Doolittle, that it would strike over 2,000,000
unnaturalized foreigners from the basis, thus diminishing
the representation of the loyal States 17 and correspond-
ingly increasing the power of the disloyal States. This
statement by Mr. Wilson reveals, if we were otherwise
lacking in information, the main purpose of the section, for
it will be remembered that it was Mr. Wilson who sug-
gested the change in the form of the section which was
finally adopted. Mr. Sherman had no difficulty in answer-
ing Mr. Wilson's argument by saying that if 4,000,000
blacks were denied representation because they were not
allowed to vote, then all other classes which were denied
the right of suffrage should also be denied representation.^^*
His position was that an Amendment to the Constitution

"'Ibid., p. 2986. "

"* Ibid., p. 2987.

Fourteenth Amendment Before Congress. 125

should rest upon some fundamental principle, and not upon
how it would affect this or that community or section, but
how it would affect the country at large.

Mr. Henderson thought the section was objectionable in
that it inflicted a punishment upon the States for excluding
negroes from the suffrage, while at the same time permit-
ting white citizens and alien inhabitants to be excluded
without loss of representative power. He was also of the
opinion that it offered too great an incentive to the States
to extend the elective franchise to those incompetent to
exercise it intelligently. Notwithstanding these and other
objections, Mr. Henderson voted for the measure.^^*

Mr. Doolittle, a short time before the final vote was to
be taken, presented an amendment, of which he had given
notice, providing that each of the sections be submitted to
the States as separate Amendments, any one or all of which
might be adopted or rejected by the States. He cited the
fact that when Amendments were first submitted to the
States, the policy of submitting them as separate Amend-
ments was inaugurated and that it should not now be de-
parted from. At that time twelve Amendments were sub-
mitted, of which ten were adopted and two rejected. The
sections of the proposed Amendment were distinct and inde-
pendent propositions, he contended, and should, therefore,
be submitted as such. It has already been noted in the pre-
ceding pages that Mr. Stevens had at first opposed uniting
the various propositions and that the Committee, by a vote
of 10 to 4, had also placed itself on record against such a
course. His amendment was rejected by a vote of 33 to
II."" No reason was given for the action of the majority,
but it takes very little discernment to discover it.

Mr. Sherman asked that the sections be voted on sepa-
rately in the Senate, though he had voted a few minutes

"» Ibid., pp. 3033-35.
Ibid., p. 3040.

126 Adoption of the Fourteenth Amendment.

before against the proposition of Mr. Doolittle to allow the
States the same privilege, but his request was denied on the
ground that all the sections constituted but one resolution
and must be voted on as such.^^^ The resolution proposing
the Fourteenth Amendment was passed by a vote of 33
to 1 1. "2

The resolution as amended in the Senate was brought
before the House on June 13, when Mr. Stevens announced
that the Union part of the Committee of Fifteen had exam-
ined the amendments made in the Senate and were unani-
mously of the opinion that they should be adopted. These
amendments were concurred in the same day by a vote of
20 to 32.^^*

From the above examination of the discussion of the sec-
ond section, it is quite obvious that its chief purpose was to
weaken the power of the South, and so of the Democratic
party, and to keep the Republican party in power. It is
also equally evident that it was not based upon any funda-
mental principle, and this was not only recognized but stated
by some of those who voted for it. The one distinctive
principle, that basing representation on legal male electors,
was rejected./ This would have affected the South to a far
greater extpifit than any other section of the country, but it
could not have been attacked on the ground of unfairness
and of sectionalism. Party expediency was the determin-
ing factor, however, and for the first time in the history
of our country there was engrafted upon the Constitution
a purely partisan proposition, a proposition to perpetuate^ a
poUtical party. /

The section was obnoxious in that it permitted the alien
to be represented and denied that right to the negro. In
this respect the alien was given preference over the citizen,
though it might be answered that the alien would become a

;^Ibid., p. 3041.

Ibid., p. 3042.

"^ Ibid., p. 3149.

Fourteenth Amendment Before Congress. 127

citizen, when, if not granted suffrage, he would no longer
be represented. The principle that those classes which had
not the right of suffrage should not be represented, the
principle upon which the section pretended to be based,
was violated nevertheless. Even the answer given above
does not apply to the case of the Chinese, for here were
aliens who were not expected to become citizens and could
not become such under the laws of the United States, and
yet under the section they would be represented.

Section Three of the Amendment.
The third section may be called the punitive section of
the Amendment, for by it the leading men of the South were
prevented from holding office, either federal or state. In
this way it was hoped to weaken, if not to destroy, the in-
fluence of those who had shaped the policies of the South
up to this time. The section was also to serve a political
purpose, being a concession to those who desired to see the
Southern leaders punished,yAs an indication of the
animosity held by many toward the South, the resolution
submitted by Mr, Sumner on the first day of the session,
December 4, 1865, may be cited. The fifth proposition of
the resolution, which .was in reference to the restoration of
the Southern States, is as follows : " The choice of citizens
for office, whether state or national, of constant and un-
doubted loyalty, whose conduct and conversation shall give
assurance of peace and reconciliation,"^^* The accept-
ance of this proposition would mean the exclusion of all who
aided the South, On the 20th of December, 1865, Mr.
Broomall submitted a resolution to be referred to the Re-
construction Committee, a part of the sixth section of which
provided " and forever exclude from all political power the
active and willing participants in the late usurpation,"^^'
With the same purpose in view, Mr, Spalding, in a speech,
January 5, 1866, suggested that a measure should be adopted

"*Ibid., p. 2.
""Ibid., p. 98.

128 Adoption of the Fourteenth Amendment.

to prevent anyone who had taken up arms against the United
States from being admitted to a seat in Congress. Mr.
ConkHng submitted a resolution to this effect on January
16, 1866.126

'The resolutions, which were generally referred to the

Reconstruction Committee, and the remarks made in debate,

/• go to show that there was a feeling on the part of many

/' that the participants in the hostilities against the Federal

I Government should be denied political rights for some time

! at least. The reasons given were that treason was a crime

( and should be made odious, and that it would be unsafe to

trust the Government in the hands of those who had waged

war against it. It must also be remembered that there was

i a political aspect to these resolutions, for it can readily be

perceived that if a large number of those in the South were

. disfranchised, it would make it much easier for the party

Vin power to continue in control of the Government.

The Reconstruction Committee seemed in no great haste,
however, in regard to this particular phase of reconstruc-
tion, for it was not until April 28, 1866, just two days be-
fore the proposed plan was reported from that Committee,
that Mr. Boutwell submitted a proposition almost identical
with the third section as finally adopted. His proposition
was rejected by a vote of 8 to 6. Mr. Harris then moved
to insert after section two the following : " Sec. — . Until
the 4th day of July, in the year 1870, all persons who volun-
tarily adhered to the late insurrection, giving it aid and com-
i fort, shall be excluded from the right to vote for Represen-
I tatives in Congress and for electors for President and Vice-
\^ President of the United States." This proposition was re-
jected at first by a vote of 8 to 7, but was subsequently
reconsidered and adopted by 8 to 7 — Mr. Grimes having
changed his vote.^^^ This is the only reference to the third
section in the Journal of the Committee, and it was re-
ported in the form given above on April 30. On the same
date, Mr. Stevens reported two bills from the ReconstructioiT

"•Ibid., pp. 133 and 252.

"'Reconstruction Committee Journal, p. 34.

Fourteenth Amendment Before Congress. 129

Committee, one of which declared certain classes of persons
ineligible to office.

During the debate on the resolution proposing the Four-
teenth Amendment, it developed that there was considerable
opposition to the third section. Mr. Blaine thought that it
would override the pardons granted by the President, thereby
subjecting the Federal Government to the charge of bad
faith. Mr. Stevens replied that a pardon would release any
one from the penalty, whereupon ]\Ir. Blaine observed that
the section would become practically useless since all below
the rank of Colonel had already been pardoned, and that at
the proper time he would move to strike out the third sec-
tion."* Mr. Garfield said that the section was obnoxious in
that it was susceptible of a double construction and not
founded on a principle. He further asserted that it would
be regarded everywhere as a piece of politics for the pur-
pose of carrying the presidential election, and moved that
the resolution be recommitted to the Committee with in-
structions to strike out the third section.^-* Mr. Thayer,
who advocated , the other sections, thought the third section
both improper and inexpedient, and added : " I am opposed
to it because it looks to me like offering to the people of the
States lately in rebellion peace and restoration with one hand,
while you snatch it from them with the other."^^" Mr.
Boyer declared that the section furnished convincing evi-
dence that the Amendment was not intended for adoption,
but was to serve as an excuse for the indefinite exclusion
of Southern Representatives, since the South could not be
expected to accept such terms as those contained in this
section. He also contended that it was in the nature of an
ex post facto law, thereby being contrary to the great prin-
ciple incorporated in the Constitution.^^^ Mr. Shanklin
asserted that the purpose of the section was to disfranchise
the people of the South until the party in power could so

^^ Cong. Globe, 39th Cong., ist Sess., p. 2460.
^ Ibid., p. 2463.
''» Ibid., p. 2465.
"* Ibid., p. 2466.

130 Adoption of the Fourteenth Amendment.

hedge themselves in as to be able to control that section at
will, and that if the Southern people accepted the degrading
conditions imposed by the section, they would be unworthy
to be American citizens.^^^

Mr. Raymond opposed the section on the ground that it
rendered his party obnoxious to the charge of amending the
Constitution for the purpose of controlling the election of
1868. He thought Mr. Blaine's objection a very strong one,
T)ut to his mind, the fatal objection was that it was inserted
for the express purpose of preventing the Southern States
from adopting any Amendments submitted by Congress.
The result would be, he said, to keep the States out, since
the adoption of the Amendment was to be the condition
precedent to their re-admission. The concession which the
States of the South would be called upon to make in adopting
the Amendment were then recited by Mr, Raymond, which
concessions were an equality of civil rights, a great reduction
of political power in the change of the basis of representa-
tion, the repudiation of their debts, and the surrender of all
claims for compensation for slaves. After summarizing
these concessions, he pertinently asked : " What do we offer
them in return for all these concessions ? " We cannot do
better than give his own answer, which was in these ex-
pressive words : " The right to be represented on this floor,
provided they will also consent not to vote for the men who
are to represent them ! It is not merely a sham, it is a
mockery."^^^ Notwithstanding his severe arraignment of
this section and his belief that it would cause the defeat of
the proposed Amendment, Mr. Raymond voted for the entire
resolution. Many Republicans doubted^ the _expedieucy_ox_
propriety of the section, especially as_a_gart^^f the Four-
teenth Amendment, and suggested that it be submitted as j,
separate and distinct propositiom^^* Several of the majority
leaders thought that it would endanger the entire Amend-
ment, among them being Mr. Bingham, who also stated that

' Ibid., p. 2500.
'Ibid., p. 2503.
Ibid., pp. 250S-10.

Fourteenth Amendment Before Congress. 131

it might subject their party to the charge of inserting it for
the purpose of controlling the next presidential election.^^"

Of all the speakers, Mr. Stevens was the only one who
stated that he regarded the third section as the most im-
portant and vital, and that it was necessary to save the Union
party. He had no hesitancy in saying that it was a party
measure pure and simple. He admitted, however, that Con-
gress would have to pass registry laws and other laws to en-
force it, just as would have to be done in regard to the other
sections. This is probably the most important statement
made in regard to the third section, since it shows very
clearly that he thought congressional legislation was neces-
sary to make the first section effective. Before closing his
speech he moved the previous question, but Mr. Garfield
and others opposed this inotion with the view of moving to
strike out the third section. The previous question was sec-
onded, however, only by a union of the partisan Democrats
with the partisan Republicans, and then by the close vote of
84 to 79. The entire resolution was then adopted by a vote
of 128 to 37."*

When the resolution was under discussion in the Senate,
May 23, Mr, Howard stated that he had not favored this
section in the Committee. The Journal of the Committee
shows, however, that he voted for its insertion and that with-
out his vote that section would not have been reported to
Congress. In fact, it was only included after some pressure
or influence had induced Mr. Grimes to change his vote.
Mr. Howard's objection to the section, as disclosed in his
speech, was that it would be of no practical benefit in the

.presidential election,^^^ There seemed to be no one in the
Senate to advocate the section as it passed the House, and

'the Republican caucus decided to strike it out. In place. of
the deleted section, there was submitted on May 29, a sub-
stitute in the form of the present third section. The Senate,
by a vote of 43 to o, voted to strike out the original section^
The change was no doubt made for the purpose of strength-

"' Ibid., pp. 2540-43.
"' Ibid., p. 2545.
^'' Ibid., p. 2768.

132 Adoption of the Fourteenth Amendment.

effing the Amendment before the people. Several amend-
ments were offered to limit the effect of the section to those
who had taken the oath. to support the Constitution within
the ten years preceding January i, 1861, to those who had
voluntarily aided the Confederacy, etc., but all were rejected
by the usual Republican majority .^^^ The section was also
characterized as ex post facto}^^ The amendment to the
third section as made in the committee of the whole was
adopted by the Senate by a vote of 42 to i,^*° since it was
regarded as much more satisfactory than the form in which
it had passed the House.

The amendment made in the Senate was agreed to in the
House, June 13, by a vote of 120 to 32. Mr. Finck called
attention to the position taken by Mr. Stevens when an
attempt had been made to strike out the third section in the
House, and his present position.^*^ It will be recalled that
Mr. Stevens stated that he regarded the third section as the
most important of the Amendment, and that without it, it
would be of little value.

/ There may be said to be two underlying motives which
caused the insertion of the third section in the Amendment —
the one penal, the other political. Undoubtedly it was to
serve as a punishment for the Southern leaders, but it is
equally true that it was to serve a political purpose as well.
The chief political features were eliminated in the Senate,
for some of the leading Republicans admitted that it was
largely political in the form in which it came from the Com-
mittee and was adopted by the House. The penal features,
however, probably bore more heavily on the South in the
amended form, since it prevented those most capable from
holding any office. As was repeatedly charged in debate,
the chief political value of the section was that it would
prevent the acceptance of the Amendment until after the
\ election. Some of the majority were also of the opinion

I Ibid., pp. 2897, 2900 and 2918.
' Ibid., pp. 2915, 2940 and 2990.

Ibid., p. 3042.

Ibid., p. 3146, 3149.

Fourteenth Amendment Before Congress. 133

that the entire Amendment would be endangered by it and
desired to have it submitted as a separate proposition.

One result of the third section was the defeat of the pro-
posed Amendment in the South, though to be sure it may
be questioned whether the Southern States would have
adopted it with this section omitted, but there can be no
doubt that it caused greater irritation and opposition than
any other section. There was probably one factor in con-
nection with this section which was not mentioned in the
debates, and this was the fact that it would afford the op-
portunity later on to offer an inducement to the Southern
leaders — those proscribed by the section — in the way of
amnesty as a return for aid given to the party in power.
A quid pro quo agreement of this kind might prove effective
at times, and the fact that attempts were made to reach a
compromise along these lines, the granting of amnesty to
the Southern leaders to be linked with the so-called Civil
Rights Bill of Sumner gives weight to this view. The sec-
tion as originally proposed limited the time to four years,
but as passed there was no time limit, and it required a vote
of two thirds of Congress to exempt any one from its pro-
visions. Although the section did not apply to the mass of
the people, it could hardly be expected that those who had
followed their leaders so loyally would abandon them under
the circumstances. The section was impolitic to say the
least of it, and it really rhade those affected by it more
popular, since they were regarded as unjustly singled out
to bear the punishment for all those who had participated
in or sympathized with the struggle for Southern inde-
pendence.

Section Four of the Amendment,

The fourth section of the Amendment declaring that the

pufelic (iebt of the United States should be inviolable, but

that neither the United States nor any State should assume

or.-Eaj any debt incurred by the Confederate States in aid

134 Adoption of the Fourteenth Amendment.

of the war against the United States, or any claim for the
loss or emancipation of any slave, aroused the least opposi-
tion of any of the sections.; In fact, there was very little
opposition to the section, for a resolution introduced by Mr.
Randall, of Pennsylvania, December 5, 1865, declaring that
the national debt should be held sacred and inviolable, was
agreed to by a vote of 162 to i.^*^ Two weeks later, De-
cember 19, a resolution proposing an Amendment to the
Constitution was reported from the Judiciary Committee
and adopted the same day under call of the previous ques-
tion by a vote of 150 to 11.^*^/ This proposed Amendment
declared that neither the United States nor any State should
pay any debt contracted in aid of war against the United
States, and the above vote shows that there was a general
feeling that such debts should not be paid. The resolution
was sent to the Senate the following day, but no action
whatever was taken in regard to it until June 20, 1866, when
it was indefinitely postponed on the ground that it had
been incorporated into the fourth section of the Fourteenth

Amendment. ^^^ ^1 -r-"^"^", __ __ ^^ ^"v..,.,,^

The number of resolutions submitted to Congress on the
subject clearly indicates that it was thought advisable to
secure the national debt against any future danger and to /
put it beyond the power of Congress or any State to assume/
or pay any part of the Conjederate debt or to pay for any of
the emancipated slaves;'!' The provisions in regard to the
Confederate debt and the compensation for slaves were per-
fectly proper to prevent action by any future Congress, but
the provision in regard to the national debt seems of doubt-
ful value. The consideration of this subject was at first
almost entirely free from politics, but it was made to serve
the politicians at a later stage. Just as was the case with -
the other sections, there was no idea of combining this sec-

'" Ibid., p. 10.
'"Ibid., pp. 84-87.

Fourteenth Amendment Before Congress.' 135

tion with any other proposition until the plan of Robert

Dale Owen was submitted to the Reconstruction Committee

■■■

April 21, 1866.

^ Very little" time or attention was given to this section,
being hardly mentioned by some, never alluded to'b3^ Others,
and little discussed by any. Mr. Stevens probably gave the
Republican view of it in the following sentence, which was
all he said in regard to it: "I need say nothing -of the
fourihsection, for none dare object to it who is not himself
a rebel.^'*"' No opposition to speak of was manifested by
the Democrats, except to the provision in regard to the com-
pensation for slaves, and the opposition to this provision
was almost entirely limited to its effect upon Maryland,
Delaware, Kentucky, and Missouri — States which had re-
mained loyal to the Union. JV|n 3^haxiklin, jsf Ker^^
declared that it repudiated the pledge of the National Gov-
ernment to pay $300 for each slave enlisted from the loyal
States. According to his statement, Kentucky was en-
titled to JiOjO(X)jPOQjir Mr. Randall, who was several
times Speaker when the Democrats came into power, said
tiiat if this section were submitted as a separate proposition
that it would be adopted almost unanimously.^** y
^ Mr. Howard, who had charge of the Amendment in the
Senate, stated. May 23, when it was under discussion, that
he did not suppose there was any one in that body who
would oppose the fourth section. He said it was necessary
to prevent future political squabbling and wrangling and to
put it beyond the field of discussion and to avoid all agita-
tion of the subject in the future.^*^ Although admitting all
were in favor of this section, he was unwilling to submit
it as a separate proposition, evidently desiring to use it as
a means to strengthen the other sections or to secure votes

*"Ibid., p. 2460.
"" Ibid., p. 2501.
'*" Ibid., p. 2530.
"Mbid., p. 2768.

136 Adoption of the Fourteenth Amendment.

for his party, thereby being made political to that extent.

Mr. Davis offered an amendment to the section for the
purpose of securing the bounties provided to the owners of
slaves who enlisted, but this was rejected.^*^ The only
serious objection which might be brought against the sec-
tion was that in regard to this part of it, since many slaves
of those who were loyal to the Union had enlisted under the
Act of Congress of February 29, 1864. By adopting this
section, Congress violated its plighted faith, but aside from
this the section probably served a good purpose by remov-
ing all agitation in the future in regard to compensation for
slaves or the payment of any debts contracted in aid of the
Confederacy. Of course this statement has nothing to do
with the question whether, as a matter of fact, compensa-
tion should have been given for the slaves or not, though
the condition of the public finances at the time would hardly
have warranted the assumption of such an enormous obli-
gation.

Section Five of the Amendment.
-.Section five declares that " The Congress shall have
power to enforce, by appropriate legislation, the provisions
of this Article." It was never deemed necessary to add a
section similar to this to any proposed Amendment to the
Constitution prior to the Thirteenth, so that it is essential
that a brief account be given of the reason for adding it to
the War Amendments. It is of little importance for the
purpose of this study whether the section really gave any
additional power to Congress or not, but it was evidently
added for some reason, and that reason does concern us.

Very little was said of it when the Thirteenth Amend-
ment was before Congress, though the subsequent legisla-
tion elicited statements which revealed the purpose of the
section. Some of the Southern States seemed to fear that
some danger was concealed in the second section of the

^"Ibid., p. 3041. "^

Fourtfiffith Amendment Before Congress. 137

Amendment, and made objection on account of it. Gov.
Perry7 of South Carolina, wrote President Johnson that
there was no objection to the Thirteenth Amendment except
the second section. The objection to this section was that
it^ might be held to give Congress power to legislate for the
freedmen. Secretary Seward replied to this letter, saying
Ifaat the effect of the second section was to restrain, not to
enlarge, the power given by the first section.^y North
Carolina^and other States made the same objection.

The opinion given by Mr. Seward was evidently that of
Mi\_5tevens also, for when Mr. Cook introduced a resolu-
tion, January 5, 1866, declaring that it was the sense of the
House that the second section conferred power upon Con-
gress to legislate for the freedmen in the way of securing
the rights of freemen, he stated that it was contrary to the
opinion of the Secretary of State, and added: "„We all
know that the second section is restraining." ^^^ Although
this was the view at first taken by the Federal Government,
it was not consistently adhered to, for it has already been
noted that the power to pass the Civil Rights Bill was
€lairned to be derived from this section. The passage of
that bill over the veto of the President declared, so far as
Congress could do so, that the second section of the Thir-
teenth Amendment did confer legislative power upon Con-
gress. Whatever claim was made in regard to the second
section of that Amendment applies with equal force to the
fifth section of the Fourteenth Amendment.

Mr. Howard gave a more complete statement in regard
to the fifth section than any other member/ After refer-
ring to the privileges and immunities to b6 secured by the
first section, stating that the provisions of that section, were
merely restrictions upon the States and not grants of power

to Congress, -Tie made the following declaration in regard to

■■ ^ /ki: ______

**• Hollis, Reconstruction in S. C, p. 44.
"*Cong. Globe, 39th Cong., ist Sess., p. 130.

138 Adoption of the Fourteenth Amendment.

the fifth^ section : "Here is a direct affirmative delegation
of power to Congress to carry out all the principles of all
these guarantees, a power not found in the Constitution." ^^^
Thus according to Mr, Howard the power which Congress
has under the Fourteenth Amendment is not derived from
either or all of the first four sections, but entirely from the
fifth section. /His statement in regard to it was not ques-
tioned by any one, evidently being acceded to by all as a
true statement of its purpose. Indeed, there could be little
doubt as to the purpose of the section, especially in view of
the legislation enacted under the second section of the
Thirteenth Amendment. iWith a single exception, the min-
ority in the Senate gave no attention to the section/but it
' so happens that the VieWs expressed by Mr. Howard and
]\^r. Hendricks agree. Mr. Hendricks sounded the danger
of the section, that is, according to the view of the minority,
when he said that it " provides that Congress shall have
power to enforce, by appropriate legislation, the provisions

(of the Article. When these words were used in the Amend-
ment abolishing slavery, they were thought to be harmless,
but during this session there has been claimed for them such
force and scope of meaning as that Congress might invade
the jurisdiction of the States, rob them of thtir reserved
rights, and crown the Federal Government with absolute
and despotic power. As construed, this provision is most
dangerous. Without it the Constitution possesses the vital-

"^Ibid., p. 2766. Speaking further of it, he said: "It (5th sec.)
gives to Congress power to enforce by appropriate legislation, all
the provisions of this Article of Amendment. Without this clause,
no power is granted to Congress by the Amendment or any one
of its sections. It casts upon Congress the responsibility of see-
ing to it, for the future, that all the sections of the Amendment
are carried out in good faith, and that no State infringes the
rights of persons or property. I look upon this clause as indis-
pensable for the reason that it thus imposes upon Congress this;
power and duty. It enables Congress, in case the States shall en-
act laws in conflict with the principles of the Amendment, to cor-'
rect that legislation by a formal Congressional enactment" (p.
2768) .

Fourteenth Amendment Before Congress. 139

ity and vigor for its own enforcement through the appro-
priate departments." ^°^

These unequivocal statements by the representatives of
the two parties leave little room for doubt as to the purpose
of the section or of the power to be conferred on. Congress.
What the one regarded as essential to the Amendment to
make it effective, the other regarded as dangerous. Prac-
tically the same declaration was made in the House by Mr.
Harding, of Kentucky, for he asserted that it transferred
all power over their citizens from the state Governments
to Congress, and that Congress would thus hold all power
of legislation over the citizens of the States in defiance of
the States."^

"* Ibid., p. 2940.
"»Ibid., p. 3147.

CHAPTER III.

The Amendment Before the People.

^^he Amendment having passed Congress June 13, 1866,
was formally presented to the Secretary of State, June 16,
and was by him submitted to the several States for ratifica-
tion or rejection.^;

Before considering the action of the several Legislatures,
it may be well to see what the people in general thought of
it, what they understood it to mean, what powers were to be
given to Congress and the Central Government, and what
evils were to be remedied by it. Our source of information,
on this particular question, is, with few exceptions, limited
to newspapers, both editorial and correspondence. This will
also include the open letters of public men and the speeches
made during the campaign.

When the nature of the Amendment proposed by the Com-
mittee April 30 became known, it was declared that the object
of the first section seemed to have been secured by the Civil
Rights Bill, and that the main purpose of the Amendment
was, therefore, to keep the South out until after the election.^
Even as early as December 15, 1865, the purpose of the first
section was, it was said, to " confer upon Congress all the
powers now exercised by the state Legislatures, and to re-
duce the States to the conditions of counties."^ The same
writer also asserted that it was proposed to give " Congress
absolute power over the social and civil laws of each State."

_ *N. Y. Herald, April 30, 1866. The Herald claimed to be an
independent paper but usually supported the administration.

'N. Y. World, December 15, 1865. To show that reference was
had to what finally became the firit section, the following resolu-
tion introduced by Mr. Bingham was given in the same editorial :
" The Congress shall have power to make all laws necessary and
proper to secure to all persons in every State of the Union, equal
protection in their rights of life, liberty and property."

140

The Amendment Before the People. 141

This same paper, which was strongly opposed to the entire
Congressional plan of reconstruction, on April 30, follow-
ing, stated that the whole plan of the Committee had two
objects in view: (i) To keep the South out of the Union.
(2) To put the onus of its remaining out on the States of
that section. The aim of the first, it continued, was to pre-
vent those States from participating in the Presidential elec-
tion of 1868, and that of the second was to retain their sup-
porters in the North — the cardinal principle thus being to
keep the Radicals in control of the Government. The
Amendment, after its passage by Congress, was declared to
be a mere party platform, since it was neither intended nor
desired to be ratified.^ A rather conservative organ said
that if the Amendment passed Congress and was submitted
to the States, it would secure the next President to the party
in power whether it were ratified or not, but stated that the
scheme was milder than had been expected.* It was pre-
dicted that, if the third section as proposed by the Recon-
struction Committee, which was to keep the South out until
after the presidential election, could practically be nullified
by the pardons of the President, and many thought it could
be, something else would be substituted to accomplish the
same purpose.^ As a matter of fact this was done, but
probably because the original section seemed too radical and
severe, though the above view doubtless had some weight
since several members of the House were of the same
opinion. The section, as has been stated previously, was
retained by the House only by a combination of the extrem-
ists of both sides. The Amendment was also declared to be
an ingeniously contrived scheme for popular support in the
North, while unnecessarily reenacting the Civil Rights Bill.*
The paper gave a correct expression of the popular impulse
and feeling when it said that the great majority of the peo-
ple would approve the scheme, which was declared to be a
" powerful platform for the approaching fall elections,"

*Ibid., June 15, 1866.

*N. Y. Herald, May i, 1866.

^Ibid., May 10, 1866.

* Ibid., June 2 and 10, 1866.

142 Adoption of the Fourteenth Amendment,

while the proposition that all should be equal before the law
was calculated to have " a pleasing effect upon the popular
ear."^

The New York Times, a Republican paper, agreed with
the Herald and the World that the main purpose of the
Amendment, was to secure the presidential election of 1868,
though declaring that most of its propositions or provisions
were sound, but that the South could not be expected to sub-
scribe to some of them.^ In fact it went so far as to say
that Mr. Stevens and the Radicals did not want the South
restored until after that election and that the Committee evi-
dently did not want it accepted by the States.® Four days
later this same paper stated that all of the sections of the
Amendment, except the third, had been acted upon as sep-
arate measures, and that the third section had been added for
partisan purposes. Mr. Howard's speech of May 23 was
declared to be frank and satisfactory and his exposition of
the need for securing, by constitutional Amendment, the
privileges and immunities of citizens to be " cogent and
clear,"^° It was in this speech that Mr. Howard said that
one of the purposes of the first section was to give Congress
power to enforce the Bill of Rights. By declarations of this
kind, by giving extracts or digests of the principal speeches
made in Congress, the people were kept informed as to the
objects and purposes of the Amendment. The Senate's sub-
stitute for the third section was said to be more acceptable,
but that it was too exacting for the South to accept ;^^ and
that though the Amendment, per se, was just and reasonable,
it should not have been made a condition precedent for the
admission of the Southern States, since its ratification was
practically impossible.^^

The New York Evening Post,^^ a conservative Republi-
can paper, practically stated the same view as that stated

*Ibid., June 15 and 19, 1866.

'April 30, 1866.

• Ibid., May 14, 1866.

" Ibid., May 25, 1866.

" Ibid., June 2, 1866.

" Ibid., Sept. 13, 1866.

" Ibid., May i, 1866.

The Amendment Before the People. 143

by the Times, but furthermore declared that the first section
was unnecessary since the Civil Rights Bill secured the same
thing.^* It also stated that the most thoughtful press either
disapproved the Amendment altogether or gave faint praise
to it, the third section especially being the object of attack.^'^
Extracts from other papers were given in this issue to sub-
stantiate this statement. This paper objected to the third
and fourth sections on the ground that only permanent
things should be put in the Constitution, while the first sec-
tion was thought unnecessary unless the Civil Rights Bill
was unconstitutional. The Southern whites should be con-
ciliated, it continued, without sacrificing equal justice, free
speech, and free press, evidently thinking these things were
secured by the Civil Rights Bill.^' This bill, in the opinion
of the Post, was approved by the people.^'^

The New York Tribune, one of the strongest Radical
journals in the country, never discussed the different sec-
tions of the Amendment, though it published them several
times. It also published speeches made in advocacy of the
Amendment and of course advocated its adoption, though its
appeals for votes were made more to the passions and selfish-
ness of the people than to their judgments. Moreover, it
never denied the statements which were made as to the
effect or result on the States in case it were adopted.

The leading organ of the Radicals at Washington declared
that the first section embodied the principles of the Civil
Rights Bill.^^ This same organ declared, after the Amend-
ment had been adopted by Congress, that " appropriate legis-
lation " would be necessary to give real vitality to it, and
that it would be monstrous, " after such an auspicious restor-
ation of peace among men of common sentiments and com-
mon obligations " to have differences as to legislation impera-
tively necessary to enforce an Amendment which had cost

"Ibid., May 11, 1866.

" Ibid., May 7, 1866.

"Ibid., June 5, 1866.

"Ibid., July 5, 1866.

"The Washington Chronicle, April 29, 1866. It was published
by D. C. Forney, but his brother, J. W. Forney, the Secretary of
the Senate, seems to have written or inspired many of the editorials.

144 Adoption of the Fourteenth Amendment.

" so much time, reflection, and research."^® This was a
plain declaration by a Radical organ, and may be accepted
as stating the position of the majority, that " appropriate
legislation " ought to be passed to enforce the Amendment
when it became a part of the original law. The second sec-
tion was, however, declared to be the most important — the
statement that the North would gain lo representatives and
that the South would lose lo, making a total gain of 20 for
the North, if the Amendment were adopted, and just the
opposite if rejected, being inserted in every issue of the
paper from September 20 to October 10, 1866.^° In an
editorial on Secretary Browning's letter, it was declared that
the independence of the States " within their appropriate
and constitutional spheres " was not to be interfered with,
though the Federal Government (Congress) would decide as
to the spheres.^^ If Congress could say what were the
" appropriate and constitutional spheres " of the States, was
it not practically admitting the statements made in Brown-
ing's letter ? In this same editorial it was stated that so long
as the States provided for the protection of life, liberty and
property of the citizens the Federal Government would be
relieved of an obligation, but the opinion was expressed that
federal protection was imperatively needed in certain States.
The Cincinnati Commercial, a conservative Republican
paper, said that the proposal of the first section, while right
in principle, was a recognition of a doubt as to the con-
stitutionality of the Civil Rights Bill.^^ The object of the
Amendment was declared to be to throw the protecting arm
of the Constitution around all classes, native and naturalized.
Under the first section no special codes could be passed, as
had been done by several States, but all citizens were to
be equal before the law, to have the same rights and priv-
ileges, and, added the writer, the only way this could be
obtained was by an Amendment to the Constitution which
would enforce it. The people had the right, he continued,

" Ibid., June 14, 1866.
" Ibid., September 20, 1866.
'* Ibid., October 26, 1866.
"•May 3, 1866.

The Amendment Before the People. 145

to change the organic law when their judgment thought it
necessary.2^ It was not denied but that the tendency of the
Amendment was towards centralization, but that the people
had the right to do this if they saw fit.

Even a New England paper said that the third section
would be fatal to the Amendment, and that the object of the
Amendment, taken as a whole, was to prevent the restora-
tion of the Southern States until after the presidential elec-
tion.2*

Mr. Tremain, president of the Republican State conven-
tion of New York, declared, in a speech before that body
at Syracuse, September 5, 1866, that the first section was
necessary on account of the Dred Scott decision and to make
the Civil Rights Bill permanent by putting it beyond the
power of repeal or of the Courts to declare it unconstitu-
tional.^^ The Convention adopted the resolutions advocat-
ing the Amendment and declaring that the New Orleans riot
was due to the President's policy of reconstruction.

The Herald, which had at first made quasi objections at
least to the Amendment, said that there was nothing very
objectionable in it, but that every principle of it had, at one
time or another, been recommended by the President to some
Southern State or to Congress, and that he should have
accepted it.^® In this same issue a correspondent had writ-
ten that the first section would only extend federal protec-
tion over, and provide equal laws for all classes of citizens
in the several States.

Thus it will be seen that the Northern press, with few ex-
ceptions, if any, took the view that the first section of the
Amendment reenacted, or gave authority for, the Civil
Rights Bill, and conferred citizenship upon the negro, there-

^ Ibid., June 21, 1866. " It is sheer nonsense to talk about a
centralized despotism making inroads upon the Constitution, chang-
ing the form and sweeping away ancient prerogatives and im-
munities. The people have a clear right to make changes in their
organic law as in their judgment are demanded."

^ Ibid., May 6, 1866. Quoted Springfield (Mass.) Republican.

« N. Y. Herald, September 6, 1866.

*Ibid., September 13, 1866.

146 Adoption of the Fourteenth Amendment.

by nullifying that portion of the Dred Scott decision which
had denied this under the original Constitution. As a gen-
eral thing the press did not go into any elaborate discussion
of the Amendment itself, but spoke of the possibility of its
ratification. Many speeches and letters were, however, pub-
lished in regard to it.

Probably the strongest and most illuminating letter giv-
ing an exposition of the Amendment was that written by
Secretary Oliver H. Browning to Colonel W. H. Benneson
and Major H. V. Sullivan. It was written October 13, 1866,
and was given a wide publication, with much comment on it
by the leading papers. In this letter Mr. Browning, who
was a member of the President's Cabinet, declared that new
and enormous powers would be conferred upon Congress
by the proposed Amendment ; that it would be possible to de-
rstroy the judiciaries of the States under it ; and that the
'object and purpose of the clause " nor shall any State deprive
any person of life, liberty, and property without due process
of law " was to subordinate the state judiciaries to federal
supervision and control, thereby totally annihilating the inde-
•pendence and sovereignty of state courts in the administra-
I tion of state laws, as well as destroying the authority and
^control of the States over purely local affairs. He also
asserted that, since the federal judiciary already had juris-
diction of all questions arising under the Constitution and
laws of the United States, this new provision would make
possible the drawing of every matter of judicial investigation,
civil and criminal, however insignificant, into the vortex of
ithe federal judiciary. For it was certainly possible, he con-
tinued, for either party to a controversy to claim that he was
being deprived of life, liberty, or property, as the case might
be, by the States without due process of law, and that this
question would be cognizable in a Federal Court, resulting in
delay if nothing else. There will be a tendency, he says, on
the part of the Federal Government to take away the con-
trol of local affairs from the people, the States, and the local
municipal bodies, and to concentrate it in its own hands.^''

^ Cincinnati Commercial, October 26, 1866. The letter was given
in full.

The Amendment Before the People. 147

The editorial comment in the paper from which the letter
was taken never controverted the statements of Mr. Brown-
ing as to the effect of the first section, but rather admitted
them by saying that the danger to our country was disinte-
gration, not consolidation.

The editorial comment of the New York Times, October
25, in regard to this same letter did not deny any of the
statements made in it, but said that it was impolitic to pub-
lish it since it was supposed to express the views of the Pres-
ident. The same paper, three days later, seemed to admit
Browning's contentions by saying that the dangers set forth
in his letter could be avoided if the States would act justly —
would deprive no one of life, liberty, or property without due
process of law. It evidently agreed, however, with the dec-
laration made in that letter that any one who alleged that
he was deprived of either of those things, could bring his
case before the Federal Courts. If that much be granted,
then the whole case falls, and Mr. Browning's position be-
comes unanswerable. To show further the view taken by
the Times in regard to the Amendment, citation was made
in the same editorial of the case of James Lewis, colored,
which had been decided by Justice Hardy, of Alabama. In
that case the Civil Rights Bill was declared unconstitutional,
the decision of the lower court fining the negro for carrying
arms being sustained. The Times added that this could not
have been done had the Amendment been a part of the Con-
stitution, and that its object was to prevent such legislation
and such decisions.

The Herald of the same date, also writing of Browning's
letter, declared it to be the old Southern State's Rights argu-
ment with secession eliminated, though it did not contradict
any of the statements made in the letter. The Tribune prac-
tically acknowledged that the position taken by Mr. Brown-
ing was unassailable, but declared that the arguments used
by him to reach his conclusion were too trivial to be refuted.
This seems contradictory, but in regard to the clause which
Mr. Browning especially attacked, it declared : " It is enough
to say that fact as well as theory requires that this principle

148 Adoption of the Fourteenth Amendment.

should be embodied in the national Constitution. The Rebel
States have repeatedly and grossly outraged it, and it is be-
cause life, liberty, and property have been illegally taken
away in spite of mere state laws, that the Federal Govern-
ment is bound to extend equal protection to all citizens."^®
The editorial also states that it was the purpose of the
Amendment, that is of the first section, to extend the equal
protection of the laws, not only in cases where the laws are
unjust and unequal, but in cases where people are denied
equal treatment in spite of state laws. The laws might be
fair and just, but their execution might not be. In other
words, the Federal Government was to see to it that all were
equally protected, whether this equal protection was denied
by the States or by individuals. This distinction is very im-
portant as will be seen in the chapters that are to follow.

It was feared by some that the Amendment would have the
effect of postponing reconstruction and that what had been
gained by the Civil Rights Bill, which secured freedom of
speech in every part of the Union, might be lost.^® It was
later asserted that the first section was the same as that bill,^"
thus being unnecessary unless the latter was unconstitutional,
a concession which was not admitted.^^

In a previous chapter we have given the opinion of the
Civil Rights Bill which was generally held by the press of the
country and by the people. We have in this chapter given
some instances where it was stated that the first section was
but a reenactment of that bill. It is but proper, however,
that further evidence should be given to see whether that was
the general impression. The press, with few, if any, excep-
tions, either held this view or uttered no opinion on it. We
find that no one denied this contention, though many
claimed that it did more than merely reenact that bill.

The views expressed by the papers were verified by the
speakers during the Campaign, many of whom were mem-
bers of Congress. Senator Trumbull, in a speech at Chi-

"* October 25, 1866.

**N. Y. Evening Post, May i, 1866.

**Ibid., May 11, 1866.

"Ibid., June 5, 1866.

The Amendment Before the People. 149

cago, August I, said that the first section was a reiteration
of the Civil Rights Bill, probably a needless reiteration, but /'
that it was thought proper to put it in the fundamental law.^^
Mr. Colfax, Speaker of the House, expressed the same view
at Indianapolis a week later, saying that the Amendment
was necessary to keep the Southern judges from declaring
the bill unconstitutional.^^ General Lane, at Indianapolis,
and General Schenck, at Dayton, declared the same thing on
August 18.^* Both of these were members of Congress.
Senator Sherman, at Cincinnati, September 28, said that the
first section embodied the Civil Rights Bill. Hannibal Ham-
lin, who later became a Senator, made the same declaration
at Philadelphia, October 13.^^ Carl Schurz, in an Article in
the Atlantic Monthly for March, 1867, asserted the same
thing. Mr. E. P. Whipple, in the same magazine for No-
vember, 1866, gave expression to a similar view.

Since the Amendment was, in theory at least, the main ^
issue of the Campaign, the speeches which were made
should be of much help to us in determining what the peo-
ple understood by it, for a vigorous campaign was waged
and great crowds attended the rallies. Mr. Colfax, in the
speech to which we have already referred, seemed to think
that freedom of speech would be secured by the Amend-
ment, for he said : " I desire that in this free land every
freeman shall speak his honest sentiment without fear of
molestation." Mr. Hendricks, who was one of the few
Democratic Senators, declared on the next day at the same
place that negroes would demand to hold office and to sit on
juries if the Amendment were adopted, and that even suf-
rage might be granted under the first section.^® Mr. George
W. Morgan, the Democratic nominee against Columbus De-
lano, who was a candidate for reelection, declared in a
speech August 21, that the first section was a bold stride to-
wards centralization ; that under it the Federal Government

^ Cincinnati Commercial, August 3, 1866.

^ Ibid., August Q, 1866.

^ Ibid., August 22, 1866.

=* N. Y. Herald, October 6, 1866.

^ Cincinnati Commercial, August 9, 1866.

150 Adoption of the Fourteenth Amendment.

would claim the power to define the rights of citizens of the
States ; and that there would in a short time be negro jurors,
voters, judges, and legislators in Ohio by virtue of laws of
Congress. He then asked the people if they were prepared
for such a state of affairs, and that if they were, advised
them to vote for Delano, who would aid in putting them on
an equality with the negroes.^'' Mr, Bingham, the author of
the first section, asserted in a speech at Bowerstown, Ohio,
August 24, that that section was a strong, plain declaration
/ that " equal laws and equal and exact justice " should be
secured in every State " by the combined power of all the
people of every State." ^^ Mr. Hannah, a former United
States District Attorney for Indiana, said that those who
opposed this section sanctioned class legislation and were
willing to permit States to deprive American citizens of life,
liberty, and property without due process of law.^® Judge
Perkins, of the same State, declared that the Amendment
was a stab at the right of the States to control their own af-
fairs, and asked where was to be the limit of the power of the
Federal Government.*" Hon. George H. Pendleton, Demo-
cratic nominee for Vice President in 1864, said in a speech
at Edinburg, Indiana, that the effect of the Amendment
would be to make a consolidated government.*^ Mr. Delano,
in a speech at Coshocton, Ohio, August 28, where his oppo-
nent, Mr. Morgan, had spoken a week before, declared that
suffrage was not granted by the Amendment, but that it was
a guarantee that the Federal Government would protect its
citizens in their civil rights.*^ General M. F. Force, who
was a candidate for a judicial office, said, in a speech, Sep-
tember 22, in reply to the objection that the clause about due
process of law would give the Federal Courts occasion to in-
terfere in local affairs, that in the first place federal judges
were as good as state judges ; and in the second place, that it

" Ibid., August 23, 1866.
^ "Ibid., August 27, 1866.
t "Ibid., August 27, 1866.

** Ibid., August 28, 1866.

" Ibid., August 30, 1866.

** Ibid., August 31, 1866.

The Amendment Before the People. 151

was no new phase, since the Constitution already provided
that the National Government should not deprive any citizen
of life, liberty, or property " without due process of law,"
and that he desired to see this cornerstone of liberty the law
in every State.*^ He evidently thought that the first section
would make the national " due process of law " the law of
every State. Since this clause, as used in the Constitution
and exercised in the Courts, requires a jury trial, it would
follow that the States could not deprive any one of life,
liberty, or property without a trial by a jury composed of
twelve men. This was no doubt the general understanding
of the clause. Judge T. W. Hartley, at Cincinnati, Sep-
tember 29, in reply to Mr. Sherman's speech of the night be-
fore, said that the first section, together with the fifth, prac-
tically made the Federal Government absolute, since Con-
gress was given the power to define and determine the privi-
leges and immunities of American citizens, thereby being
able to confer suffrage.**

Mr. George W. Weston, of Bangor, Maine, who was
said to be the founder of the first Republican newspaper, in
a letter to the editor of the New York Tribune, June 25,
1866, gave his approval to the first clauses of section one,
saying that it was desirable that they become a part of the
Constitution. It was a great misfortune, he declared, that
these clauses were inextricably mixed up with a clause hav-
ing no relation to the rights or interests of the negroes.
The last clause was the objectionable one. The words of
it, he said, had a pleasing sound to the ear, but that the
people should not on that account be deceived as to their
effect in this new form. He called attention to the fact
that Congress and the Federal Government were already
restrained in this particular by a similar clause in the Bill
of Rights, which was enforceable by the federal judiciary.
Similar provisions in the Constitutions of the several States
restrained their respective Legislatures, while these safe-

" Ibid., September 24, 1866.
"Ibid., September 30, 1866.

152 Adoption of the Fourteenth Amendment.

guards were enforceable by the state judiciaries. This had
been the case since 1789, he continued, and, with no griev-
ance to which public attention had been called, it was now
proposed, in the third generation after the Fathers, by a
provision applicable to 30,000,000 of whites as well as to
4,000,000 of blacks, " to place the protection of life, liberty,
and property as against state legislation, under a national
guaranty, which will be enforceable by the federal judi-
ciary." The clause which declared that no State should
" deny to any person within its jurisdiction the equal pro-
tection of the laws " was sufficient to put an end to all caste
distinctions and was all that was necessary for the security
of the blacks. Under the last clause, he asserted, nearly
every case could be brought before the Federal Supreme
Court under the plea that " due process of law " had been
denied. Furthermore, it involved a revolution of our ju-
dicial system, being " an alarming concentration of power
in the central tribunals, and a prostitution of the independ-
ence of the States in many and vital particulars. It is in
all respects as wholly uncalled for and gratuitous as it is
indefensible and dangerous." He also objected to the third
section, and concluded by saying : " The terms of settle-
ment which are offered are shameful, both to the victors
and the vanquished, and are more so to us than to them."
It was also stated in the letter that he was in sympathy with
the Republican party, but that he could not support the
Amendment on account of the dangers in it.*®

The National Intelligencer, of Washington, declared that
the fifth section authorized Congress to enact any law which
a mere majority might deem necessary to secure equal
rights to all classes of citizens, and that this would result
in an invasion of the power of the States to legislate, with
a consequent centralization of power in the hands of Con-
gress.*® This same paper said that, under the first and fifth

** National Intelligencer, July 10, 1866.
**Ibid., October 25, 1866.

The Amendment Before the People. 153

sections, Congress might declare that suffrage was a privi-
lege, thereby annulling state laws requiring residence, pay-
ment of taxes, etc. This might also be made to include the
right to hold office. Congress could also constitutionally
extend the jurisdiction of the Federal Courts, continued the
writer, to include all manner of cases, even so far as prac-
tically to destroy the local governments and state judi-
ciaries. The opinion was also expressed that the people
did not intend to clothe Congress with such power nor did
they intend to express by their votes a desire that the Fed-
eral Government should be put in a position so to cripple
the power of the States. He seemed to give his approval
to the other provisions of the Amendment, but said that his
objections to these were invincible.*'^ This declaration was
made after the overwhelming victory of the Radicals, and
cannot, therefore, be charged with a partisan motive.

The great object of the Amendment, another paper as-
serted, was to take away the power of the people and to
place it in the hands of a political party in Congress. " In
its whole tenor, scope, and design, it is opposed to every
conceded and sound principle of Republican government.
It belongs only to a fatherless despotism." *^

The declarations and statements of newspapers, writers
and speakers, which have been given, show very clearly, it
seems, the general opinion held in the North. That opin-
ion, briefly stated, was that the Amendment embodied the
Civil Rights Bill and gave Congress the power to define
and secure the privileges of citizens of the United States.
There does not seem to have been any statement at all as
to whether the first eight Amendments were to be made
applicable to the States or not, whether the privileges guar-
anteed by those Amendments were to be considered as privi-
leges secured by the Amendment, but it may be inferred

"Ibid., November 17, 1866.

** Pittsburg Post, September 26, in World, November 5, 1866.

154 Adoption of the Fourteenth Amendment.

that this was recognized to be the logical result by those
who thought that the freedom of speech and of the press
as well as due process of law, including a jury trial, were
secured by it.

It is proper, at this place, to see what view was taken of
the Amendment in the South. Only a few references are
necessary to show that the opinion which prevailed gener-
ally in the South was similar to that held in the North. The
Charleston Courier approved the interpretation which Mr.
Browning gave of it, in that it conferred new and enormous
powers upon Congress and was fraught with evil.*^ This
same paper published, with apparent approval, the messages
of Governor Jenkins, of Georgia, and Governor Walker, of
Florida, to the same effect.^" Another leading Southern
paper took an even stronger position than did the Courier.
It was declared that the negro, being made a citizen by the
first section, was to be placed on an equality with the whites
as well as to be given protection before the courts in all
his civil rights, the latter of which Georgia had already
done. It was then asked where was the limit to the power
bestowed upon Congress by the fifth section. The follow-
ing statement of Governor Sharkey, of Mississippi, was
also quoted approvingly : " Should the Amendment become
a part of the Constitution, we shall have a far different
government from that inherited from our fathers," and to
this the editor added : " Then indeed will the Sun of Lib-
erty have set in the South."^^ In another issue the editor
discussed and approved the interpretation given in the let-
ter of Mr. Browning.''^

Another very influential paper asserted that the first sec-
tion, which struck at the foundation of American liberty,
changed the character of the government, transferred from

"November i, 1866.

■" November 7, 1866.

"Atlanta Intelligencer, October 4, 1866.

"Ibid., October 30, 1866.

The Amendment Before the People. 155

the States to the General Government the right to define
the qualifications of their citizens, and obliterated the rights
and powers of municipal authority in the States. It was
also declared to be clearly evident, from the language of the
section, that the Civil Rights Bill, the provisions of which
ignored and set aside the jurisdiction of the civil courts of
the States over their own internal municipal regulations
was to be given constitutional validity or authority.^^ The
editor called attention to the fact that little attention was
given to the first section, though he regarded it as the most
dangerous part of the whole Amendment. Two days later
this same writer, who was an exceptionally strong man,
declared that the States would be made the executive de-
pendencies of a consolidated despotism by the Amendment
and that the conclusion was inevitable that the designs of
the Radicals, as shown in the Amendment, were to merge
all the reserved powers of the States in the Central Gov-
ernment.

Later in the campaign, the same paper said that the New
York Herald, the Raleigh Standard, and the Newbern
Times proceeded upon the idea that the third section was
the most offensive to the South, but again reiterated its
statement of an earlier date that this was not the case, but
that the first section was the objectionable one.^* '' The
Radicals," continued the Sentinel, "who understand the
hearing of the Amendment upon the organic law and genius
of the Government, keep their deep and revolutionary de-
signs out of the view of the people. North and South, alto-
gether, and only dwell upon the demagogical features of
the Amendment. They know that to talk of disfranchising
' rebels and traitors ' is a sweet sound to the ears of the
Northern people. But we repeat what we have before said,

"Raleigh Sentinel, June 20, 1866.
_ "Ibid., September 19, 1866, in the World of October 29. Italics
in the original.

156 Adoption of the Fourteenth Amendment.

the disfranchising clause is the least objectionable feature
of the Howard Amendment."

The first sentence of this quotation is an admirable state-
ment of the actual condition at the time, as the aftermath
clearly shows. It has already been noted that most of the
attention of the speakers during the campaign was given to
the second, third, and fourth sections, the " demagogical
features " or partisan elements of the Amendment, and that
little stress was put upon the first and fifth sections. It
would seem that the Sentinel had given the proper reason
for this. A later statement of the same paper is almost
equally as significant.^"^

The same writer also maintained that the first and fifth
sections contained the germ of consolidation as well as the
destruction of the efficiency, if not the very existence, of
the state governments. Congress was empowered by the
fifth section, he continued, to pass any law necessary to
enforce the Amendment, and might, under this provision,
declare that suffrage was a privilege which could not be
denied by state law. There was nothing, he asserted, in
the Constitution which would render such a law unconsti-
tutional, and that it would clearly be within the province
of Congress to define citizenship and the privileges with
which it should be endowed. Congress would also be em-
powered, he added, to organize such courts and bureaus as
it might deem proper, to give jurisdiction over a particular
class of persons to these courts, and to permit them not only

•^ Ibid., October 8, in World of October 29, 1866.

The editorial is in part as follows: "That Amendment, we hold,
is adverse to the inherent and rightful powers of the States, pro-
vides for and looks to a solid sovereignty, instead of a govern-
ment of limited powers, breaks down the wholesome checks of the
Constitution and the state governments, and must inevitably result
in universal negro suffrage, not by the free, voluntary consent of
the people of the States, but by the future forced action of Con-
gress and the consequent transfer of municipal control of the state
governments over their internal affairs into the hands of Congress.
We believe that this is a wrong — a wrong which neither Providence
indicates nor the results of war render necessary or proper."

The Amendment Before the People. 157

to sue and be sued, and to testify, but to be jurors, lawyers,
and judges. In conclusion he asked : " What evil, then,
could Congress fasten upon the Southern States which is
not constitutionally and legally provided for in this Amend-
ment? Is there not more reason to hope for a change of a
had law than to change a had constitution? " This writer
was not opposed to an Amendment fixing a just ratio of
representation, an Amendment defining treason and its pun-
ishments for the future, an Amendment declaring the Union
indissoluble, or an Amendment preventing the States from
abridging in any manner the civil rights of the negroes, but
was opposed to Amendments like the Howard Amendment
which, he asserted, clearly violated " the principles of the
Constitution as it now is." '*'

The Nashville Union and American said the Amendment
was the initial step of the Radical plan for centralizing
power in the Central Government and for keeping the gov-
ernment in control of the Radical States, and that one who
could not see this was incompetent to advise men of intel-
ligence as to their rights and interests."^ The Florida
Union, of Jacksonville, declared that the Amendment would
destroy the old Constitution, with its system of checks and
balances, would tear away the safeguards of the States, and
would give the Federal Government power to control the
local affairs of the States, even to the extent of declaring
who should hold office.^* The Louisville Journal, October
9, 1866, said it tended towards centralization and en-
croached upon the domestic independence of the States,
and was furthermore partisan, unequal, unjust, and inex-
pedient."' The Memphis Avalanche, November 13, 1866,
said that it had been the " war cry of the partisan leaders
in the late struggle on the hustings and at the ballot-box,"

°* Ibid., in World for October 29, 1866.
"^ In World for October 29, 1866.

"Ibid., also in McPherson's Scrap Book, "The Fourteenth
Amendment," p. 40.
* Ibid., p. 27.

158 Adoption of the Fourteenth Amendment.

and that it meant, to Northern people, negro equaUty, social
and political, but not applicable to themselves.^** The
Montgomery Mail, February, 1867, said the chief objection
to the Amendment was the first section, which " forbids a
State from depriving him (a negro) of any rights or privi-
leges which a white man may possess." *^

The Picayune, of New Orleans, said that the first section
was but an incorporation into the Constitution of the Civil
Rights Bill.®^ An opponent of the Amendment said that
it secured the negro the right to vote, to sit on juries, to
enter hotels, lecture rooms, etc.^' The Vicksburg Herald
was of the opinion that the Radicals neither expected nor
desired the South to adopt the Amendment, its object being
to keep that section out until after the presidential election.®*

A press correspondent, seemingly a Republican, said that
the Democrats of Kentucky feared that Congress would be
empowered by the Amendment to confer the suffrage. The
writer further said that the Amendment admitted negroes
to the witness stand, the jury box, street cars, good seats
in public conveyances, good accommodations at hotels, the
public schools, and all other civil rights which white people
enjoyed, and that if it went this far, the Democrats rea-
soned that it might go further.®" It was stated by the
Vicksburg Republican, after the Amendment had been de-
clared a part of the Constitution, that under the first sec-
tion negroes were entitled to sit on juries and advised them
to see that they were granted this right.®® The Philadel-
phia News, July 31, 1868, maintained that the elective fran-
chise was one of the privileges secured by the Amendment,
not only to negroes, but to women and children.®^ This

"Ibid., p. 43.

"Ibid., p. 9.

Ibid., p. 26.

*■ Ibid., p. 24.

" Ibid., p. 27.

* Ibid., p. 84.

"Ibid., p. 83.

"Ibid., p. 77.

The Amendment Before the People. 159

was an unusual view, however, and while the paper seems
to have bitterly opposed the Radicals, this statement can
hardly be said to have been made for partisan purposes
since it had been announced more than a week before that
the Amendment had been ratified.

Mr. Benjamin H. Hill, of Georgia, who was later elected
Senator, stated, in an open letter to the editor of the New
York Herald, that the South accepted the conditions of the
President without complaint as well as the Freedmen's
Bureau and Civil Rights Bills without representation, but
that they objected to the requirement of Congress that they
disfranchise their leaders.®^ Mr. Hill was a Union man.

The statements which have been given seem amply suffi-
cient to show that the Southern press and people discerned
the tendency of the Amendment and pointed out their ob-
jections to it. The objection to the third section was prob-
ably the one which influenced the great mass of the people
more than any other. That section was easily understood
and its effect could be seen and felt, and as becomes a brave
and noble people they would not willingly consent to the
degradation and punishment of their own leaders, for they
were unable to see that their leaders were more deserving
of such treatment than were they themselves. But for this
section, the South, under the circumstances, might have
been induced to give its assent to the Amendment in order
to regain its position in the councils of the nation, though
this may be doubted. With that section in, however, it
preferred to endure military rule rather than humiliate
itself by deserting its brave and loyal leaders.

It is a rather striking coincidence that the thoughtful
men, North and South, regarded the first section, in connec-
tion with the fifth, as the most objectionable of the entire
Amendment, for in it they saw the possibility, and no doubt
the purpose, of a strong consolidated Federal Government,

"Herald, October 10, 1866.

i6o Adoption of the Fourteenth Amendment.

with greatly enlarged powers put into the hands of Con-
gress. These views were presented to the people in able
letters and editorials, and many were undoubtedly aware of
the dangers pointed out. So many questions, however,
were presented that some of these dangers were lost sight
of, but we shall not at present consider the motives which
induced the great majority of the people to give their assent
to the Amendment.

CHAPTER IV.
The Amendment Before the States.

It now becomes our duty to trace the course of the
Amendment before the Legislatures of the several States
and to determine, if possible, what they thought it meant
and what reasons were given for its approval or disap-
proval.

Connecticut was the first State to take action on the
._Amendment, which had been submitted to the Secretary of
State on June i6, 1866, and by him submitted to the several
" States. There was no delay in Connecticut, for the Gover-
nor of that State sent it to the Legislature on June 19. A
motion was made in the Senate that the consideration of
the Amendment be postponed until the next General As-
sembly. This was done no doubt for the purpose of giving
the people an opportunity to express their opinion, but the
motion was defeated. The Amendment was ratified in the
Senate by a vote of 11 to 6, June 25, after a short debate. \
The House, two days later, ratified it by a vote of 125 to
88. It was a party vote in both houses, the Democrats
opposing it on the grounds of expediency and policy, and
declaring that Congress could not change the Constitution
during the enforced absence of certain Representatives /
from Congress. The Republicans contended that Congress
had all the powers of conquest against the conquered
rebels.^

New Hampshire followed close upon the heels of Con-
necticut in taking action, for the Legislatures of these two

^ Senate Journal of Conn., 1866, p. 374, and Annual Cyclopedia,
1866, pp. 255-56.

II 161

1 62 Adoption of the Fourteenth Amendment.

States were in session at the time. Qn^ Iuae-26^-i^6$j Jhe.
House Committee reported a resolution for the ratification
of the Fourteenth Amendment, the minority submitting a
.jreport with their objections. The resolution was debated
f at some length, June 26, 27 and 28, and was adopted on
June 28, by a vote of 207 to 112.^

The minority report gave the following reasons, among 1
"^thers, against the ratification of the Amendment : j ^.^^
M. Because the States most deeply interested were un-
justly excluded from all participation in Congress on the
subject of the Amendment.

2. Because there was nothing in the condition of any sec-
tion of the country to render the Amendment necessary.

4. Because there were several amendments in one, each
of which should be given separate consideration and action,
and not be acted upon as a unit.

5. Because the proposed Amendment is ambiguous or
contradictory in its provisions, jthe first section prohibiting
any State from abridging the privileges of citizens of the
United States, the right of suffrage being claimed as one
of these privileges, and the second section, by inference,
allowing the States to restrict the right of suffrage if will-
ing to submit to the consequent disabilities.

" 6. Because said Amendment is a dangerous infringe-
ment upon the rights and independence of all the States, '
North as well as South, assuming, as it does, to control their
legislation in matters purely local in their character, and
impose disabilities on them for regulating, in their own way,
the right of suffrage, — clearly a state right, — a right vital
to the theory of our government, and most sacredly guarded
by the framers of the Constitution."

7. Because there was no corresponding reduction in
direct taxes for loss of representation.

" 13. And finally, because the only occasion and real de-

* N. H. House Journal, 1866, p. 231.

The Amendment Before the States. 163

sign of the proposed Amendment is to accomplish indirectly
what the General Government has and should have no
power to do directly, namely, to interfere with the regula-
tion of the elective franchise in the States, and thereby
force negro siiffrage upon an unwilling people." ^

The fifth, sixth and thirteenth sections of this report
show clearly what the minority thought would be the effect
of the Amendment. The sixth reason is especially impor-
tant since it shows that the view, which was later held by
many eminent men to be the true interpretation of the
Amendment, was perceived at this early date. It is to be
regretted that we have no record of the debates which took
place, for we are unable to know what answers, if any, were
given to the above objections.

The Senate Committee reported the House resolution
favorably on July 2, a minority report identical with that
made in the House being submitted. The resolution was
debated July 5 and 6, passing the Senate on the latter date .
by a vote of 9 to 3.* ,.,... — — i

The third State, strange to say, which considered the
Amendment, was Tennessee. The Legislature of that State
was not in session at the time, but a special session was
called for the purpose of ratifying the Amendment. The
Legislature met in accordance with the summons of Gov-
ernor Brownlow/ sometimes called Parson Brownlow,
July 4. /

In the Senate it was proposed to submit the question of
ratification or rejection of the Amendment to the people,
but this resolution was defeated. Senator Frazier then
offered an amendment to the resolution proposing the rati-
fication of the Amendment. This amendment was in the
following terms: "Provided, that the foregoing proposed
Amendments to the Constitution of the United States shall

' Ibid., pp. 176-178.

*N. H. Senate Journal, 1866, p. 94.

164 Adoption of the Fourteenth Amendment.

not be so construed as to confer the right of suffrage upon
"a negro, or person of color, or to confer upon such negro
"oi-'person of color the right to hold office, sit upon juries,^
or to intermarry with white persons! nor shall said proposed
Amendments be so construed as to prohibit any State from
enacting and enforcing such laws as will secure these ends,
not inconsistent with the present Constitution of the United
States, nor shall said proposed Amendments be so con-
strued as to abridge the reserved rights of the States in the
election and qualification of their own officers, and the man-
agement of their domestic concerns, as provided and secured
by the present Constitution of the United States." This_
amendment was rejected, and the Amendment was then rati-
fied by a vote of 16 to 14.° There was very little, if any,
debate in the Senate, but the amendment proposed by Sen-
ator Frazier shows what the minority thought would be the
construction put upon the Amendment. It is of course
evident that a State, through its Legislature or otherwise,
cannot limit or extend the construction or interpretation of
a proposed Amendment to the Constitution of the United
States, but its effort to do so would be a clear indication of
what it feared would be the construction of the proposed
Amendment. The effort of the minority to do this in this
particular case is of importance only as showing their
views of the Amendment. It may not be altogether proper
to say that the majority, by rejecting Senator Frazier's
amendment, recognized that the Amendment would secure
those things which his amendment proposed to include, and
that they, therefore, intended to secure them. In ordinary
cases, it would be perfectly proper to draw such a conclu-
sion, but in this case the reason for the rejection of the
amendment of the minority might properly have been that
the Legislature had no right to pass such a restrictive reso-
lution, or, in other words, to make a conditional ratification

*Tenn. Senate Journal (Extra Session), 1866, pp. 18 and 24.

The Amendment Before the States. 165

of the AmendmguL... It is evident, however, that if Mr.

' Frazier's ihterpretation or Hmited construction were to be
placed upon it, that the first eight Amendments would not
be made binding upon the States.

There was no quorum in the House for some time, so that
nothing could be done except to adjourn from day to day.
After considerable ejffort, two of the recalcitrant members
wcre^ arrested and brought into a committee room opening
into the Chamber of the House. They refused to vote when
their names were called, whereupon the Speaker ruled that

jtbefe'Avas no quorum. His decision, however, was over-
ruled, and the Amendment was declared ratified July 19,
1866, by a vote of 43 to 11, the two members under arrest
in the adjoining committee room not voting.^

New^ Jersey followed the example set by Tennessee in call
ing an extra session of the Legislature. In the latter case
it was called ostensibly to elect a United States Senator, but
really to pass upon the Amendment. Governor Ward urged
its ratification " as the most lenient amnesty ever offered to
treason, while every provision is wisely adapted to the wel-
fare of the whole country." This message was sent to the
Legislature September 10, 1866, and the Amendment was
ratified the following day in the House by vote of 34 to 29 ;
in the Senate it received 11 votes, the 10 Democrats not
voting.'^

The Democrats of New Jersey were successful in the elec-
tion of 1867, securing a large majority in the House. The
Legislature elected at this time met on January 14, 1868, and
eight days later the Judiciary Committee of the Senate was
instructed to report a joint resolution withdrawing the assent
of New Jersey to the Fourteenth Amendment. On January
28, the Committee on Federal Relations (composed of the
Judiciary Committees of both houses) reported a joint reso-
lution rescinding the resolution approved September 11, 1866,
relative to the Amendment, and withdrawing the assent of

•Tenn. House Journal (Extra Session), 1866, p. 25.
'Annual Cyclopedia, 1866, pp. 53^40-

1 66 Adoption of the Fourteenth Amendment.

New Jersey thereto.^/ The resolution declared that a State
had the right to witTTdraw its assent to an Amendment until
it had been ratified by three fourths of the States. The
origin and object of the Amendment were declared to be un-
just, and that the necessary result of its adoption would be
" the disturbance of the harmony, if not the destruction of
our system of self-government." It was also declared that
eleven States had been excluded from Congress in order to
secure two thirds of both Houses for it, and finding that
two thirds of the remaining States would not be obtained,
the design was deliberately formed and carried out by eject-
ing one of the Senators of New Jersey, Senator Stockton.
The resolution further declared that no pretext or justifica-
tion could be given for his ejection, and that it and the
Amendment had the same object in view, namely, " to place
new and unheard of powers in the hands of a faction." The
immense alterations to be made in the fundamental law by
the proposed Amendment, continued the resolution, were
concealed by the gilded propositions of justice which were
drawn from the Constitutions of the States. The third sec-
tion was denounced on account of its ex post facto char-
acter as well as for the reason that it conferred upon the
legislative branch of the government the pardoning power —
a power which properly belonged to the executive.

The resolution further declared that it imposed new pro-
hibitions upon the power of the States to pass laws or to ex-
ecute such parts of the common law as the national judiciary
might hold inconsistent with the vague provisions of the
Amendment. The provisions were made vague, it was
asserted, for the purpose of facilitating encroachments upon
the liberties of the people. The federal judiciary, further-
more, was to be so enlarged as to bring within its jurisdic-
tion every state law and every principle of common law re-
lating to life, liberty and property. The whole Amendment
was " couched in ambiguous, vague, and obscure language,
the uniform resort of those who seek to encroach upon public
liberty." It was also stated in the resolution that this Legis-

*.N. J. Senate Journal, 1868, pp. 31 and 40.

The Amendment Before the States. 167

lature had the support of the largest majority ever given ex-
pression to by the public will.*

The resolution passed the Senate February 19, 1868, by a
vote of ii.Jto^8/° and the House concurred the next day by
a vote of 44 to 11.^^ The Governor returned the resolution,
February 24, without his approval, stating that he did not be-
lieve that a State could withdraw its assent to a proposed
Amendment,/and besides, that the people had approved the
Amendment/in the election after its adoption and that it had
not been mentioned in the campaign preceding the election of
the present Legislature.^^ The resolution passed the Senate
a second time, March 5, by a vote of 11 to 9,^^ while the
"House passed it by a vote of 45 to 13.^* In the House, Mr.
Atwater presented a protest for himself and others against
the passage of the resolution, but this protest was not allowed
to be printed in the Minutes of the Assembly.

The General Assembly of Oregon assembled September
10, 1866, ^he same day on which the special session of the
New Jersey Legislature met. The resolution ratifying the
Fourteenth Amendment was adopted by the Senate four days
later by a vote of 13 to 9, after having rejected an amend-
ment to submit the question of ratification or rejection to the
people.^''

On the 17th the Senate resolution was reported to the
House, where it had a somewhat checkered history. It was
reported back from the Judiciary Committee on the 19th,
and was agreed to the same day, apparently without debate,
"by a vote of 25 to 21. A protest was filed by the minority
against the passage of the resolution on the ground that it
was only considered one day by the Committee ; that the
minority of the Committee had not been consulted ; that some
of those holding seats were not entitled to them; and that
such an important matter as the Amendment should receive

.'N. J. Legislative Documents, 1868, pp. 951-55. '

*'*N. J. Senate Journal, 1868, p. 198.
" N. J. Minutes of the Assembly, 1868, p. 309.
"N. J. Senate Journal, 1868, pp. 249-53.
" Ibid., p. 356.

" N. J. Minutes of the Assembly, 1868, p. 743.
" Oregon Senate Journal, 1866, pp. 34-36.

1 68 Adoption of the Fourteenth Amendment.

some consideration and deliberation.^* In fact some of those
holding seats were afterwards unseated, thus demonstrating
the correctness of the declaration of the minority. Then on
October 6, a resolution, declaring the passage of the resolu-
tion of September 19 illegal, was adopted by a vote of 24 to
18. This was done on the ground that the passage of that
resolution was obtained by the votes of those not entitled to
seats.^^ The resolution of October 6 was reconsidered on
October 10, and was lost by a vote of 24 to 23, thus refusing
to declare invalid the resolution of September 19.^*
' ^ resolution rescinding the ratification of the Amendment
vjvas introduced early in the session of 1868. It was stated
in the resolution that the ratification by Oregon had been ob-
tained by fraud, and that the Amendment was not properly
a part of the Constitution, since the Southern States had
ratified it under governments created by a military despot-
ism.^^ The Committee on Federal Relations, in reporting
the resolution September 23, 1868, declared that the ratifica-
tion of the Amendment by the last Legislature was one of
the reasons for the overthrow of the Radicals at the recent
election. The report also stated that the people expected
them to rescind the action of the last Legislature. The reso-
4ution was adopted October 5, by vote of 13 to 9.^° The
House concurred October 15, by vote of 26 to 18.^^

Vermont was the sixth and last State to ratify the Amend-
X ment during the year 1866. The Legislature assembled
^-"^ctober 11, 1866, and the resolution ratifying the Amend-
ment was adopted unanimously by the Senate October 23, the
vote being 28 to o.^^ The resolution was agreed to by the
House October 30, by a vote of 196 to ii.^' ,' There seems to
have been no minority report nor any debate whatever.
New York was the first to ratify in 1867, the Legislature

" Oregon House Journal, 1866, pp. 74-77.

Mbid., pp. 192-93.

" Ibid., p. 228.

"Oregon Senate Journal, 1868, p. 32.

"Ibid., pp. 66 and 131.

** Oregon House Journal, 1868, p. 273.

**Vt. Senate Journal, 1866, p. 75.

"Vt. House Journal, 1866, p. 140.

The Amendment Before the States. 169

of that State meeting January i. On the first day of the
session resolutions were introduced in both Houses for the

' ratification of the Amendment. Little time was lost in the

\ Senate, for the resolution was referred to a special Commit-
tee the next day, and was adopted the day following by a vote
of 23 to 3.^* The members of the Senate had been elected

"m^ November, 1865, but they doubtless considered the suc-
cess of the Republican party at the polls in 1866 as an ex-
pression of the will of the people that the Amendment should
be ratified since it had been made the issue in that election.
The Senate resolution was received by the House January 9,
and was adopted the next day by a vote of 71 to 36.^^ The
members of the House had been elected the November pre-
ceding, and were, therefore, acting in accordance with the
expressed desire of the people. Bernard Cregan, nicknamed
" Tom Thumb " on account of his size, was the only Demo-
crat in the House who voted for the Amendment.^^ In fact
he seems to have been the only one in any of the Legislatures
who did this.

Ohio was equally as prompt as New York in ratifying the
Amendment, her ratification being one day later. Governor
Cox,^^ in his message to the General Assembly, January 2,
1867, recommended the ratification of the Amendment, de-
claring that it was necessary to correct the evils remaining in

-the Southern States. The first section, he maintained, was a
grant of power to the National Government to protect the
citizens of the United States in their legal privileges in case
any State should attempt to oppress any individual or class
or to deny equal protection to any one. The necessity for
this section, he asserted, had been manifested long before the
war, since the freedom of speech and of discussion was not
tolerated there prior to the war. The power conferred by
the section would remain in abeyance so long as the States
acted in good faith and gave equal protection. A resolution
for the ratification of the Amendment was introduced in

'*N. Y. Senate Journal, 1867, p. 34.
''N. Y. House Journal, 1867, p. 77.
"•N. Y. Herald, January 11, 1867.
"Executive Doc. (Ohio), 1866, Pt. I, p. 281.

I/O Adoption of the Fourteenth Amendment.

and adopted by the Senate the next day, the vote being 21 to
12,^^ The House agreed to this resolution the next day,
January 4, by a vote of 54 to 25.^® ^he resolution was not
signed, however, until January 11, /'thus preventing Ohio
from taking precedence over New^ York. A resolution was
also introduced in the Senate January 3, to the effect that
no Southern State should be admitted into the Union until
a sufficient number of States had ratified the Amendment to
secure its incorporation into the Constitution of the United
States, but this failed to pass.^°

Ohio has the distinction of being the first State to with-
draw its assent to an Amendment to the Constitution of the
United States. The Democrats were successful in the elec-
tion of 1867, and when the Legislature assembled, January
6, 1868, resolutions were introduced in both Houses for the
withdrawal of Ohio's assent to the Amendment and for re-
scinding the resolution adopted January 11, 1867./

The rescinding resolution declared, among other things,
that the Amendment was ex post facto in its nature and
operation, and that it conferred upon Congress the power
" to legislate on subjects foreign to the original objects of
the Federal Compact." It was also stated to be one of the
objects of the Amendment to enforce negro suffrage and
negro equality in the States, and the ratification of it by the
previous Legislature was declared to be a misrepresentation
of the public sentiment of Ohio and contrary to the best in-
terests of the white race. The resolution passed the House
January 11, 1868, by a vote of 52 to 37.^^

The resolution was amended in the Senate so as to de-
clare that no Amendment to the Constitution was valid
until three fourths of all the States had duly ratified it, and
that until it was so ratified, any State had the right to with-
draw its assent. The President was to be requested to for-
ward to the Governor of Ohio all papers on file in the
Executive Department certifying the ratification of the

^ Ohio Senate Journal, 1867, pp. 7-9.
''Ohio House Journal, 1867, p. 12.
** Ohio Senate Journal, 1867, pp. 9 and 446.
** Ohio House Journal; 1868, pp. 12 and 32.

The Amendment Before the States. 171

Amendment by the General Assembly of Ohio, and copies of
the rescinding resolution were to be sent to the President,
to each of the Senators and Representatives of Ohio in Con-
gress and to the Governors of the several States. The reso-
lution as amended was adopted by the Senate January 13,
"By'aTvote of 19 to lyp The House agreed to the amend-
rnent by a vote of 56 to 46,^^ and the resolution was signed
January 15.

The statement made in the resolution that the Amendment
had been ratified against the wishes of the people can hardly
be sustained, for the Legislature which ratified it was elected
in the fall of 1866 after a full discussion of the Amendment.
Governor Hayes, in his inaugural address, 1868, said that the
Amendment had been approved by the people and that there
was no evidence to show that they desired the assent of
Ohio to it to be withdrawn.^* It was also stated that the
Amendment had not been even a side issue in the campaign
of i867.='5

Governor Oglesby, of Illinois, in his message to the Gen-
eral Assembly, January 7, 1867, said that the people had en-
"dqrsedjhe Amendment most emphatically " after a full and
"deliberate discussion." The Amendment could have been
made with propriety before the war, he asserted, but that
the necessity for it might have grown out of the war. He
thought all persotis born or naturalized in the United States
were citizens, and were, therefore, entitled to all the polit-
ical and civil rights which citizenship conferred.^** Four
days after the reception of this message, the Senate, after a
short debate, passed a resolution ratifying the Amendment
by a vote of 17 to 8.^^ The House refused, by a vote of
57 to 24, to refer the resolution to the Committee on Fed-
eral Relations. It then agreed to the resolution by a vote of
60 to 25, January 15.^*

"' -^^Ohio Senate Journal, 1868, pp. 33-38.
^'Ohio House Journal, 1868, pp. 44-50.
"Executive Docs. (Ohio), 1867, Pt. I, p. 207.
" Cincinnati Commercial, January 15, 1868.
^ 111. Senate Journal, 1867, p. 40.
" Ibid., p. 7^.
"III. House Journal, 1867, p. 134.

1/2 Adoption of the Fourteenth Amendment.

West Virginia was the fourth state to ratify the Amend-
ment in January, 1867, giving her assent to it the i6th. The
vote in the House was 43 to 11 ; in the Senate 15 to 3.^®

Kansas disposed of the Amendment without delay. The
Legislature met January 8, 1867, and on the following day
the House adopted a resolution ratifying the Amendment
by a vote of y6 to 7.*° Two days later the Senate con-
curred, the vote being 23 to o.,/ Governor Crawford, in his
message of the 9th, stated thaf the Amendment had been the
platform submitted to the people in the canvass of 1866,
from Maine to California.*^

On January 11, 1867, the Committee on Federal Relations
reported back to the House of the Maine Legislature the
resolution proposing the ratification of the Amendment^
The resolution was given the three readings on the same
day, being adopted by a vote of 126 to 12.*^ The most
prominent member of the House who voted for the resolu-
tion was the Hon. Wm. P. Frye, at present a United States
Senator from Maine. The vote in the Senate four .days
later was unanimously in favor of the resolution.*^ J^ The
Republican State Convention** at Bangor, June 22, 1866,
had emphatically endorsed the Amendment.

There was about as little opposition to the Amendment in
Nevada as there was in Maine, for the House ratified it
January 10, 1867, by a vdte of 34 to 4,*^ and the Senate
January 21, by 10 to 3.*^ The members of both Houses
had been elected in November, 1866.

Governor Fletcher, of Missouri, in his r^iessage to the
Legislature, January 4, 1867, said that the first section of
the Amendment prevented any State " from depriving any
citizen of the United States of any of the rights conferred

*" Documentary History of the Constitution, II, p. 693, and
Annual Cyclopaedia, 1867, p. 765.
** Kansas House Journal, 1867, p. 79.
"Kansas Senate Journal, 1867, pp. 40, 76.
" Maine House Journal, 1867, p. 78.
** Annual Cyclopaedia, 1867, p. 471.
"Ibid., 1866, p. 467.
"Nev. House Journal, 1867, p. 25.
**Nev. Senate Journal, 1867, p. 47.

The Amendment Before the States. 173

on him by the laws of Congress," and secured to " all per-
sons equality in protection of life, liberty, and property,
under the laws of the State." ^^ This is a specific declara-
tion that no State could deprive any citizen of any right
conferred upon him by Congress, and it may be inferred
that the Legislature gave an implied sanction to it by rati-
fying the Amendment.

On the day following the reception of the Governor's
message the Committee reported back the resolution ratify-
ing the Amendment. There was little, if any, debate on it,
and the resolution was adopted the same day, the vote
"being 26 to 6.*® On January 8, the House agreed to the
Senate resolution by a vote of 85 to 34.*** <--

Governor Morton, in his message to the General Assembly ^\J^
ofThdiana, January 11, suggested that schools be provided
for negroes, and advised that separate schools be established
on account of the dissatisfaction which would be engendered
if they were required to be admitted to the schools for the
whites.^** Immediately after the delivery of the message a
resolution was introduced in the Senate for the ratification
of the Amendment. This resolution was favorably reported
by the Committee on Federal Relations on January 16. The
minority of the Committee filed a report stating that they did
not believe that the public mind was at present in a condition
for changing the organic law, and recommending that the
question be submitted to the people at another time and un-
der more auspicious circumstances. The resolution was
adopted, however, on the same day, the vote being 29 to 18.^^

No speech was made in the Senate in favor of the resolu-
tion and only two against it, the previous question having
been called. Mr. Hanna spoke for one hour and a half in
opposition to it, declaring that the Amendment would change
the whole organic structure of the Government and that it

" Mo. Senate Journal, 1867, p. 14.

" Ibid., p. 30.

*' McPherson, Reconstruction, p. 194.

** Ind. Documentary Journal, 1867, I, p. 21.

"Ind. Senate Journal, 1867, pp. 77-79-

1/4 Adoption of the Fourteenth Amendment.

put "the ax to the roots of the tree (the Constitution)
itself."°2

The House Committee, in reporting the resolution, stated
that the people had emphatically declared for the adoption
of the Amendment after it had been fully discussed. The
minority report said that the purposes of the Amendment
were partisan in that it was intended to perpetuate power in
the hands of a minority of the people. The report further
asserted that the first section placed all citizens on a political
level, and conferred, therefore, upon the negroes the same
political and civil rights enjoyed by white persons, includ-
ing the right of suffrage. It was also stated that the people
had been most thoroughly deceived by the Republican ora-
tors and that, if the Amendment were submitted to the
people it would be defeated by 100,000 majority.^ ^

Mr. Ross, discussing the Amendment in the House de-
clared that it would have the effect of striking out the word
" white " from the state Constitution and of repealing all
state laws making distinctions on account of race and color.
He also contended that it would make the negro eligible
to seats in the Legislature, would open the jury box to him,
and would permit him to send his children to the com-
mon schools with the white children.^* Another speaker de-
clared next day that the Amendment was not sincerely
drafted and was intended to destroy the power of the States 1^
to determine the status of citizenship, and that its " ratifica-
tion would be a dangerous, if not a crowning step toward that
consideration against which the country has been warned by
the Fathers." He also denounced it as a sectional, partisan
effort to confer suffrage on the negroes.^^ Mr. Dunn, speak-
ing in advocacy of the Amendment, said that the interpre-

" The entire sentence was as follows : " It (the Amendment) pro-
poses to change the whole organic nature of our government. It
does not purpose merely to lop off from the limb of the old oak
a crooked and leafless limb that is thought useless, or to engraft
upon some branch of its noble arms additional luxuriance and
beauty, but it lays the ax to the roots of the tree itself." Ind.
Brevier Legislative Reports, 1867, pp. 44-46.

" Ind. House Journal, 1867, pp. 101-105.

"Ind. Brevier Legislative Reports, 1867, p. 80.

" Ibid., p. 88.

The Amendment Before the States. 175

tation put upon the first section in regard to suffrage by its
opponents was opposed by the second section. In reply to
the objection that it but repeated the principles of the Civil
Rights Bill, Mr. Dunn said : " Well, we propose to make
those principles permanent by writing them in the funda-
mental law." If the Amendment were not adopted, he
added, and the Civil Rights Bill should be held unconstitu-
tional, the negroes would be in a worse condition. than before
their emancipation.^" Mr. Baker followed Mr. Dunn in op-
position to the Amendment, quoting the words of Senator
Trumbull to the effect that he hoped to see the day when the
judges would declare that the Civil Rights Bill conferred
suffrage on the negroes. He then pointed out the similarity
of that bill to the first section of the Amendment."'^

An advocate of the measure said that suffrage was not a
privilege of citizenship, and was not, therefore, conferred
by the first section.*^* The following significant declaration
was made by Mr. Wolfe in explaining his vote. "And there
never has been an Amendment to it [the Constitution] but
it has been to take power from the General Government and
to give it to the people. This Amendment is the reverse of
that, therefore, I vote no.' "^® The statement that suffrage
was conferred by the first section was denied by the advo-
cates of the Amendment, but no denial was made to the
statement that negroes would be given the right to sit on
juries, to hold office, and to attend schools on equal terms
with the whites. The previous question was called and the
resolution agreed to by the House January 23, by a vote of
55~tb 36.»°

'Scarcely any time was given to the consideration of the
Amendment in the General Assembly of Minnesota, for the
resolution ratifying it was passed by the House the same
day on which it was introduced, the vote being 40 to i^.^"^

■* Ibid., p. 89.

" Ibid., p. 89.

"Ibid., p. 90.

" Ibid., p. 90.

"Ind. House Journal, 1867, p. 184.

"Minn. House Journal, 1867, p. 25.

1/6 Adoption of the Fourteenth Amendment.

The Senate, after refusing to submit it to the Committee,
concurred the next day, January i6, 1867, by a vote of 16
to 5.^^ ' The Governor had declared in his message of Jan-
uary 10 that it would secure equal civil rights to all citi-
zens of the United States.^'

In Rhode Island the Senate ratified the Amendment Feb-
ruary 5, 1867, with only two opposing votes, the vote being
26 to 2, while the House ratified it two days later by a vote
of 60 to 9.^*

Wisconsin and Pennsylvania ratified the Amendment on
the same day, February 13, 1867. Gov_grnor Fairchild, of
Wisconsin, in his message January 10, declared that the
people were familiar with the provisions of the Amendment,
and, " With-a-^uiLaf^derstanding of them in all their bear-
ings," ihad approvedlthem by an overwhelming majority.
He also stated that it had been the basis of the campaign
and that most of the members of the Wisconsin Legislature
were there because the people knew they deemed the
Amendment just and necessary.®"

The minority of the Committee on Federal relations filed
a report setting forth their objections to the Amendment.
In this report it was stated that the Amendment would^ive
Congress power to confer suffrage on the negroes and to
Jegislate for the citizens "of the several States and"" that it
WQuld surrender certain rights and powers now belonging
to the States. This surrender, it was declared, was made
by the first section in connection with the fifth. Under the
original Constitution, the report continued, the States re-
served the right to make laws for the protection of life,
liberty, and property of those within their borders, but that
the first section of the proposed Amendment would make
the Federal Government the arbiter between citizens of the

"Minn. Senate Journal, 1867, p. 23.
"Minn. Ex. Doc, 1865-66, p. 25.
•* McPherson, Reconstruction, p. 194.
"Wis. House Journal, 1867, p. 33.

The Amendment Before the States. 177

same State. Moreover, the Federal Government would
have the power to judge state laws and the manner in which
the state authority was exercised over its citizens, thereby
destroying the harmony between the States and the Federal
Government and being a long stride towards consolidation.
It was also declared that numerous rights, for example,
the enforcement of contracts, the regulation of the inter-
course between citizens, the protection of life, liberty, and
property, etc., which were enjoyed under the States, would
be put under the control of the Central Government."" The
Amendment, contended the minority in this report, would
work a complete subversion of the " fundamental princi-
ples upon which the Union was founded," since Congress
would have power to appoint Commissioners and provide
Courts to determine whether any one was being deprived
of his rights without due process of law. " If this was not
the object of this section of the Amendments," it was
asked, "what other purpose or object was sought by it?"
The report also asserted that the " absolute rights of per-
sonal security, personal liberty, and the right to acquire and
enjoy private property, descended to the people of the gov-
ernment as a part of the common law of England," and
that there was no necessity of engrafting into the Constitu-

" The report is as follows : " The powers of the Federal Gov-
ernment, respecting the people of the States, are mostly external
and are seldom felt by the individual or citizen in social or domestic
relations. The powers of the state governments are constantly
felt in the regulating of our intercourse with each other; in the
making of our municipal laws; in the regulating our estates; in
our town, village, city and county organizations; in redressing our
wrongs and enforcing our contracts ; in protecting us in life,
liberty, and the pursuit of happiness as members of society. In all
these things the power of the State is supreme. The first section
of these Amendments aims a blow at these powers of the States.
All these rights which we now enjoy under state authority, by it
are made subordinate to federal power.

" The first section, in connection with the fifth, will give the
Federal Government the supervision of all social and domestic re-
lations of the citizen in the State and subordinate state govern-
ments to federal power." Ibid., p. 96.

1/8 Adoption of the Fourteenth Amendment.

tion "nor shall any State deprive any person of life, lib-
erty, and property without due process of law" unless it
was intended to confer power upon the Federal Govern-
ment. Its evident purpose, it was declared, was to be con-
strued to subordinate state authority to the Federal Govern-
ment, and by it the independence and sovereignty of the
state judiciary would be destroyed, and that when this was
done, the State would be sovereign in nothing.

In reference to the second section, the report said that
it was an insidious distinction, since it allowed the alien
non-voters in the North to be counted while the negroes
would not, and asked how Wisconsin could insist upon it
when the people had decided so adversely to negro suffrage
in 1865."

There is no record that these statements of the minority
were denied, though the vote shows that the majority either
did not believe them, or, accepting them, desired to accom-
plish the purpose for which the minority said the Amend-
ment was intended. „.- -'

f The Senate ratified the Amendment January 23, 1867,
by a vote of 22 to 10;** the House, February 7, by a vote
of 69 to i8.«»

Governor Curtin, of Pennsylvania^ in his message to the
Legislature January 22, 1867, re'f erred to the fact that the
people of Pennsylvania had had an opportunity to pass on
the Fourteenth Amendment and had shown their approval
of it by electing a large majority of those who had openly
advocated it.'^'* On the same day that the message was
received, a resolution was introduced in the Senate for the
ratification of the Amendment. Xbis resolution,, after con-
.siderable debate, was passed January 11, 1867, by a vote oT

" Ibid., pp. 96-103.

"Wis. Senate Journal, 1867, p. 119.
Wis. House Journal, 1867, p. 224.
•Penna. Senate Journal, 1867, p. 16.

The Amendment Before the States. 179

21 to 11.'^^ The House, after a fairly full debate, con-
curred in the resolution, February 6, by a vote of 62 to
34^^*" The Governor approved the resolution, February 13,
1867^

Tfie debates in the Pennsylvania Legislature were partici-
pated in by both parties, and on this account are especially
valuable. The debates are given in full, Pennsylvania being
the only State which gave a full account of the debates at
that time. It was the only State, too, which gave any con-
siderable time to the discussion of the Amendment.

Mr. Connell, speaking in favor of the Amendment, Jan-
uary 4, 1867, quoted the law of Alabama for the year 1866
making it a crime, punishable by a fine of not less than
$50.00 or more than $500.00, for any conductor, station
agent, officer, or employee of any railroad to allow any
freedman, negro or mulatto, except nurses with their mis-
tresses, to ride in first-class passenger cars. After citing
this statute, Mr. Connell declared that the adoption of the
Amendment was a political necessity on account of the
state of things in the South.'^^ An opponent of the Amend-
ment asserted that the people had been deceived as to the
purpose of it, being told that it made voters the basis of
representation."'*

Mr. Wallace, also an opponent of the Amendment, said
that the first and fifth sections taken together declared who

" Ibid., p. 125. It may be remarked that the only two instances
recorded of petitions laid before the Senate of Pennsylvania in
opposition to the Amendment, were made by members of the anti-
slavery society and by Mrs. E. Cady Stanton, Lucy Stone and others
of the Equal Rights Association. The former's opposition no doubt
was due to the fact that the second section recognized the right
of the States to regulate suffrage — thus being able to exclude the
negro; the opposition of the latter was due to fact that suffrage
was not granted to women.

" Pa. House Journal, 1867, p. 278.

'* In reference to this statute he said : " Not much Shakespeare in
that. That section gives one a glimpse of the poetry, refinement,
and humanity of Mississippi (Alabama) life." Pa. Legislative
Record, 1867, vol. II (Appendix), p. 3.

« Ibid., p. s.

i8o Adoption of the Fourteenth Amendment.

were citizens and conferred upon Congress the power to
protect that citizenship. He defined privilege as " every-
thing that is desirable " and immunity as " a privileged free-
dom from anything painful," and asserted that, under the
power conferred upon Congress by the second clause of
section one, the dearest rights could be bestowed upon
negroes. He also maintained that Congress would be au-
thorized to enact laws concerning the regulation and control
of liberty and property and to provide for the equal protec-
tion of the laws. " H this be the power granted," he added,
"what further need have we of the state government?"
He contended that, even if concurrent jurisdiction were
granted to the States and to the Federal Government, the
latter would be superior, since it would have the right to
review the state jurisdiction.'^^

An advocate of the Amendment said that the first section
guaranteed " state rights to every human being," evidently
having reference to the rights which were in the Bill of
Rights in the several States. He also said that this section
gave sanction or authority to the Civil Rights Bill, though
he thought that bill constitutional without this section.'^*

Mr. Davis, an opponent of the Amendment, declared that
the people had not decided for it in the last election, since
the issue presented to them had been negro suffrage in
some instances, while in others it had been the validity of
the United States bonds. He said that good Republicans
had admitted and claimed that their success was due almost
entirely to the immense amount of United States securities
held by the people, " and to the adroit manner in which that
trump card was played." He also stated it as his belief
that thousands of ignorant men were induced to vote the
Republican ticket by being told and made to believe that
the success of the Democrat party would render the gov-

" Ibid., p. 13. ' ~~

" Ibid, p. 16.

The Amendment Before the States. i8i

ernment bonds worthless, but that this belief was not enter-
tained for a moment by the shrewd men who played the
trick. The mass of the people, he asserted, also believed
that the Amendment was to base representation on voters —
this view having been presented by the speakers in favor
of the Amendment. But the issue was, in his opinion,
whether the ideas of Jefferson or those of John Adams were
to prevail ; whether we were to continue to have a Federal
Union of States or to have a grand central, consolidated
Government under which the domestic laws of the States
would be decided by Congress. " The issue is, whether the
Constitution of the United States or the will of Congress
shall be the supreme law of the land." '^'^

Another Senator declared that the Amendment struck at
the very foundation stone of our republican form of gov-
ernment. The first section was to meet the doctrine enun-
ciated in the Dred Scott decision and to validate the Civil
Rights Bill. Under this section, he continued. Congress
might declare suffrage to be a privilege, since it was sus-
ceptible of that interpretation. He cited the case of Cor-
field vs. Coryell (4 Wash. Cir. Court Repts., p. 389) to
show that the Court had considered the franchise a privi-
lege. The fourth section was inserted, he declared, to
secure votes. Of the fifth section he said, "If we are to
judge the future by the past, I shall never vote to give
Congress any such power. All the dangers that threaten
republican institutions are centered in the Congress of the
United States. ... I will never vote to enlarge their pow-
ers. If I did, I would do it under the conviction that I was
voting against the life of the Republic." "^^

In reply to the argument of Democrats that the Amend-
ment was an invasion of State Rights, it was said that the
right to define the qualifications of suffrage was not neces-

" Ibid., p. iS.
"Ibid., pp. 23-26.

1 82 Adoption of the Fourteenth Amendment.

sarily one of the reserved rights of the States, and that the
argument was invalid anyway, since the Constitution pro-
vided that three fourths of the States could alter it J® This
was an admission on the part of a Republican that Q)ngress
would have the right to declare that suffrage was a privi-
lege, and therefore to define its qualifications. This was
not generally admitted by them, however, the question either
being avoided or the assertion of the minority denied.

An opponent asserted that not only would Congress be
empowered to regulate the franchise, but that it would re-
sult in the taking of other rights from the States, since the
efforts of the Republicans were to centralize the Govern-
ment.®" An eminent statesman (Mr. Browning) was
quoted as saying that the Amendment would change the
entire structure and texture of the Government and sweep
away all the guarantees provided by the framers of the
Constitution. The speaker then asked whether any ra-
tional man could doubt those facts.^^ A Republican went
so far as to declare that Congress had the power to change
the status of the States if the weal of the country made it
necessary or desirable; that the power of the age and the
country was in Congress, as representing the millions of
men who had saved the Government and that it was both
their " prerogative and duty to do anything and everything
that the peace and perpetuity of the country require and
demand." ^^ This was undoubtedly an extreme view — one
to which only the veriest Radicals would subscribe, but it
showed the spirit of some of the men of the time, and the
speaker undoubtedly thought the Amendment was making
more sure the powers which he asserted belonged to Con-
gress.

Speaking on another occasion, one of the Senators said

"Ibid., p. 32.
"Ibid., p. 35.
« Ibid., p. 38.

"Ibid., p. 37.

The Amendment Before the States. 183

that Philadelphia was the only city which did not allow
negroes to enter street cars, and that this was contrary to
the Republican doctrine that all should be equal before the
law.®*

The debate in the House was of a nature very similar to
that in the Senate. It was asserted by an opponent of the
measure that it placed the regulation of the civil relations
of each State under the control of the Federal Govern-
ment ; that the States were to act only as the agents or in-
struments to enforce the federal will, and that almost the en-
tire civil and criminal jurisprudence of the States was placed
under the control of Congress. He also declared that it
was not necessary, in considering the proposition, to examine
the question as to what relations the citizens of the States
ought to sustain to each other, but that the only question
raised by it, was whether it would be better to give the Fed-
eral Government the power asked for by the Amendment, or
to leave it where it then was, with the States. He thought
it should be the object of all to narrow the grounds of con-
troversy between the States, but that just the opposite would
be accomplished by the proposed Amendment, since sub-
jecting the affairs of each State to the control of Congress
would enlarge the field of controversy. He then cited the
second section of the Civil Rights Bill as an illustration of
the manner in which Congress would exercise its power to
regulate the affairs of the States, and added : " Under this
section the executive, the legislative, and judicial officers of a
State m^y be convicted and punished as criminals. All are
subjected to the supreme law of the Congressional will,
which is exercised alike in determining the construction of
state laws as well as in prescribing the punishment of those
who execute them."®* Mr. Kurtz, an opponent of the
Amendment, believed that the first clause would give suf-
frage to negroes, but whether this clause would ipso facto

"* Ibid., p. 84. " Lawful equality must everywhere be freely sanc-
tified throughout this land or we perish. If he (the negro) fills
our pulpits, our school-houses, our academies, our colleges, and our
Senate Chambers, I bid him God speed."

** Ibid., p. 41.

184 Adoption of the Fourteenth Amendment.

confer that right might be a question, he said, but that it was
quite certain that the first section, taken together as a whole,
would give Congress the power, by simple statute, to confer
it. It was pointed out that nowhere in the Constitution or in
the proposed Amendment was there a catalogue or enumer-
ation of the " privileges and immunities " of citizens which
the States were prohibited from abridging by the second
clause of section one. Mr. Kurtz then asked : " In case of
dispute, where exists the authority to define these ' privileges
and immunities ' ?" The answer was to be found in the fifth
section, he declared, which undoubtedly conferred the power
upon Congress, and that under that section Congress could
also " impose penalties upon all who, under the authority of
any pretended state law, should deny or abridge these privi-
leges and immunities." A law of Congress, therefore, he
asserted, declaring that suffrage was a privilege, would be
constitutional. He furthermore opposed the Amendment,
because, by it, all the legal barriers theretofore existing be-
tween the white and black races would be removed, and that
opportunities and inducements would be given for the asso-
ciation and commingling of the races on such terms of
equality as would " naturally result in the gradual, but cer-
tain, blending of the two races into one mixed race or
people." ^'

Mr. Mann, an advocate of the Amendment, said that it
would enable the Federal Government to accomplish the ob-
ject for which the founders of the Republic declared that all
governments were established, namely, to protect all its citi-
zens in their rights of life, liberty, and property.®* Two
Democrats thought that it would confer suffrage on the
negroes and make them the political and social equals of the
whites.®'^ A Republican thought that it was necessary to
adopt the Amendment to secure peace and freedom, includ-
ing the freedom of speech.®^ Still another supporter of the

« Ibid., p. 52.
■* Ibid., p. 48.
"^ Ibid., pp. 54, 60.
^ Ibid., p. 55.

The Amendment Before the States. 185

Amendment declared that it was proposed to write the Civil
Rights Bill in the Constitution and to put the inalienable
rights enunciated in the Declaration of Independence in the
organic law.®®

Mr. Deise, a Democrat, asserted that it was a question of
centralization, and that the rights of the first section were
already safeguarded in better form by every State of the
Union unless it was intended to confer suffrage on the
negroes. In reference to the fifth section he said that a
similar provision of the Thirteenth Amendment had been
made the pretext of unlimited appropriations for bureaus
and the passage of the Civil Rights Bill. " Appropriate leg-
islation " was the invention of Sumner, he declared, and cov-
ered a vast deal of ground and involved the expenditure of
great sums of money. He was, therefore, opposed to any
more " appropriate legislation."®"

Another Democrat, Mr. Chalfant, sanctioned all that had
been said in regard to the danger of the first section, though
he regarded the fourth section as harmless. This section
had, however, he declared, been used to draw attention away
from the important sections, and he predicted that the
people would later be astonished at what had been accom-
plished.®^

Mr. Jones, also an opponent of the Amendment, took the
position that it should be considered only as to its effect upon
Pennsylvania. This was a somewhat narrow position, but it
was evidently the view really taken by most of the States,
especially in regard to the second section. Mr. Jones de-
clared that the first two clauses of section one deprived Penn-
sylvania of all legislative power and conferred it upon Con-
gress, and that consequently there would be little necessity
of having a Legislature for the State if it were adopted. By
the last clause of that section, he continued, the State would
not be allowed to be the judge of its own laws, even in

" Ibid., p. 60.
°» Ibid., p. 68.
" Ibid., p. 82.

1 86 Adoption of the Fourteenth Amendment.

criminal proceedings, since it gave the Federal Courts the
power to determine whether a man was imprisoned unjustly
or whether he was deprived of his life, liberty, or property
without due process of law. He also contended that the
rights and prerogatives of the State would be surrendered
to the Federal Government without receiving anything in re-
turn for that surrender. Congress would, moreover, have
the power to enforce the Amendment by appropriate legisla-
tion and itself to determine what was " appropriate legis-
lation." He concluded by saying that Pennsylvania would
lose one representative under the second section unless suf-
frage was given to the negroes.®^

The speeches of many of the Republicans did not bear
upon the Amendment itself, but were confined to declarations
that it was a light punishment for traitors and rebels, that
the national debt must be made secure, that the rebel debt
should not be paid, and that rebels and copperheads must not
be permitted to get control of the Government. The de-
bates were sufficient, however, to show that the intention and
purpose of the Amendment were understood to confer addi-
tional powers upon Congress and to authorize such measures
ag the Civil Rights Bill.
/^ The Amendment found little opposition in Michigan, be-
ing ratified by the Senate January 15, 1867, by the almost
unanimous vote of 25 to i.** On the next day, without any
reference to a committee, the Senate resolution was agreed
to by the House by a vote of yy to 15."*

Several petitions were presented to the General Assembly
of Massachusetts against the adoption of the Amendment,
but notwithstanding this as well as the fact that the Commit-
tee on Federal Relations recommended that it be referred to
the next General Assembly, the Amendment was ratified by
the House March 15, 1867, the minority report (Republican
also) being substituted for that of the majority by a vote of

■"Ibid., p. 97. ^ ■-'^- ■■,

"Mich. Senate Journal, 1867, p. 125. J

•*Mich. House Journal, 1867, p. 181.

The Amendment Before the States. 187

120 to 22.°'* The Amendment was then adopted by a vote
"of 120 to 20,^^

The majority report of the Committee, except so much
of It as related to the postponement of the Amendment, was
adopted. The reason for the postponement desired by the
majority of the Committee was due to the second section,
whichjit was claimed, conceded the right of the Southern
States to disfranchise the negroes, and that Massachusetts
would lose by it on account of her educational and tax quali-
fications for suffrage.®'^ /

The Committee, in it/ report, stated that the first section
was already in the Constitution and was to be found in the
second and fourth sections of Article Four, and in the First,
Second, Fifth, Sixth and Seventh Amendments. If these
provisions were fairly construed, said the Committee, they
would secure everything which the first section attempted
to do. After quoting these provisions, the report continues :

" Nearly every one of the Amendments to the Constitu-
tion grew out of a jealousy for the rights of the people,
and is in the direction, more or less, of a guarantee of human
rights.

" It seems difficult to conceive how the provisions above
quoted, taken in connection with the whole tenor of the in-
strument, could have been put into clearer language, and,
upon any fair rule of interpretation, these provisions cover
the whole ground of section one of the proposed Amend-
ment."

The first clause of the section was considered unnecessary^
by the Committee in view of the opinion of Attorney Gen-,
eral Bates that negroes were already citizens. It was also
declared that legal authorities were not agreed as to what
constituted state citizenship apart from federal citizenship,
and that that part of the Amendment " and of the State
wherein they reside " would be of no effect anyway, since

°* Mass. House Journal, 1867, p. 207.
^ McPherson, Reconstruction, p. 194.

■"Ibid., p. 202, and Legislative Documents of the House (Mass.),
1867, Doc. No. 149.

1 88 Adoption of the Fourteenth Amendment.

none of the provisions of the Amendment were to apply to
persons as citizens of a State.

While the last clause of the section was not in the Con-
stitution in the same words, the Committee said that the de-
nial of equal protection of the laws " would be a flagrant
perversion of the guarantees of personal rights which we
have quoted." In answer to the general argument that
such denial had existed notwithstanding those guarantees,
the Committee replied that this would be possible under
the Amendment. The Committee then concluded that the
Amendment was mere surplusage at best, and mischievous
in that it was an admission, " either that the same guaran-
tees do not exist in the present Constitution, or that if they
are there, they have been disregarded, and, by long usage
or acquiescence, this disregard has hardened into constitu-
tional right; and no security can be given that similar
guarantees will not be disregarded hereafter." ^^

This report is entirely different from any other that we
have found, for it was made by Republicans, and cannot,
therefore, be said to be partisan in the s^nse that the same
statements made by Democrats were. It is also valuable
from the fact that it shows that the Senate of Massachusetts,
in adopting it, accepted the statements made in it that the
first section was but a reiteration of the guarantees enum-
erated in the Amendments. The Senate ratified the Amend-
ment March 20, 1867, the vote being 27 to 6.^^

Governor Bullock, had on January 4, in his message to the
General Assembly, declared that the first section was to
secure to all citizens civil equality before the law and to
protect them from any state legislation which abridged their
privileges or deprived them of life, liberty, or property with-
out due legal process. He also said that it was adopted by
Congress to give certain and enduring effect to the Civil
Rights Bill, and that whatever reasons there were for the
enactment of that bill, were doubly applicable to the incor-

"Ibid., Doc. No. 149.

" McPherson, Reconstruction, p. 194, Mass. Senate Journal not
printed according to card catalogue of Library of Congress.

The Amendment Before the States. 189

poration of its provisions into the fundamental law of the
country. Its reaffirmation in this form was necessary, he
continued, to the end that neither the executive nor judicial
power, nor the local authorities, might render inoperative
the deliberate verdict of the people, " that no one should be
denied of their privileges and immunities."^**"
/'At the third session of the Legislature of Nebraska, which
''had but recently become a State, the Amendment was rati-
fied by the House on June 10, 1867, the vote being 26 to
'^ The Senate rejected the motion to submit the ques-
tion to the people, and adopted the resolution by a vote of 8

Thus within a year from the time the Amendment was
submitted to the States, twenty-two had ratified it, being more
than three fourths of the so-called " loyal States." These
were not regarded as sufficient, however, by the great ma-
jority of the people. There followed quite a long interval
before another State gave its sanction to the Amendment,
for not until the spring of 1868 did Iowa ratify the Amend-
ment. The lower House of the General Assembly of that
State ratified it January 27, 1868, the day on which the reso-
lution proposing it was introduced, by a vote of 68 to 12.^°^
The Senate agreed to this resolution, apparently without any
debate, on March 9, the vote being 34 to 9.^"*

Nearly two years had gone by since the Amendment had
been submitted and the assent of the necessary three fourths
was still wanting. Thus far not a single State of the section
which would be most affected by the Amendment had given
its assent to it, with the exception of Tennessee. And in
the case of Tennessee it may be said that it had been ratified
against the will of the people of that Statq/ The other States
almost unanimously rejected it. Within this time Ohio had
withdrawn her assent, thereby giving rise for the first time

"•Legislative Documents of the Senate (Mass.), 1867, Doc. No.
I, p. 67.
^ Nebraska House Journal, 1867, p. 148.
^'"Neb. Senate Journal, 1867, pp. 163, 174.
"* la. House Journal, 1868, p. 132.
^Ta. Senate Journal, 1868, p. 264.

190 Adoption of the Fourteenth Amendment.

to the question whether a State could withdraw its ratifica-
tion of the Amendment before three fourths of the States had
ratified it. New Jersey soon followed the example set by
Ohio, while Oregon did likewise the following fall. The
border States of Maryland, Delaware and Kentucky had
also rejected the Amendment. ^ —

[n the spring of 1868, however, the array of the solid
South was broken, Arkansas being the first to ratify. In
order to preserve the continuity of the narrative, the rejec-
tion of the Amendment by the border and Southern States
will be considered after we have given an account of the

ification by those States^

Arkansas was the only State which ratified £He~Ame»4—
ment by a unanimous vote in both Houses. The vote in the
Senate April 6, 1868, was 23 to o, while that in the House a
week later was 56 to 0.^°°

The Legislature of Florida, which assembled June 8,
T868, lost no time in giving its assent to the Amendment, for
both Houses passed resolutions to that effect the next day;
in the House by a vote of 23 to 6 ; ^°'^ in the Senate by a vote
of 10 to 3.^°^ An extra session of the North Carolina Leg-
islature was called by Governor Holden. The members of
the Legislature were elected under an order of General Canby,
who had charge of the Military District of North and South
Carolina. The North Carolina Assembly acted with the
same promptness that was shown in Florida, for it met July
I, 1868, and on the' next day both Houses ratified the
Amendment. The vote in the Senate was 34 to 2 ;^°^ in the
House 82 to 19,^°* Louisiana and South Carolina followed
soon after, both ratifying it July 9, 1868. In South Caro-
lina, the vote in the Senate, July 8, 1868, was 23 to 5,"°
while that in the House the next day was 108 to 12.^" In

^"^ McPherson, Reconstruction, p. 353^
^"•Fla. House Journal, 1868, p. 9.
'""Fla. Senate Journal, 1868, p. 8.

N. C. Senate Journal, 1868, p. 15.

N. C. House Journal, 1868, p. 15.

S. C. Senate Journal, 1868, p. 12.

S. C. House Journal, 1868, p. 50.

The Amendment Before the States. 191

the Senate of Louisiana the vote was 22 to 11, July 9.^"
Alabama was added to the list of the ratifying States four
days later, while Georgia on the 21st of the same month, was
the last State to ratify before the final proclamation of the
Secretary of State, announcing that the Amendment had been
ratified. Both Houses of the Georgia Assembly ratified the
Amendment on the same day, the vote in the House being
89 to 71,^^^ while that in the Senate was not given. The
States of Virginia, Mississippi and Texas ratified it after it
had been declared a part of the Constitution. In Virginia,
the vote in the Senate October 7, 1869,"* was 34 to 4; and in
the House next day, 126 to 6,^^" Mississppi ratified it Jan-
uary 17, 1870, by a vote of 23 to 2 in the Senate, and 87 to
6 in the House."^ Texas ratified it February 18, 1870.^^^

Texas was the first to reject, as well as the last to ratify,
tiie Amendment. The House Committee on Federal Rela-
tions reported adversely as to the Amendment, October 13,
1866. In their report, the Committee declared that the first

"*La. Senate Journal, 1868, p. 21.

"•Ga. House Journal, 1868, p. 50.

"*Va. Senate Journal, 1869, p. 27.

""Va. House Journal, 1869, p. 37.

"' Gamer, Reconstruction in Miss., p. 271.

"* Documentary History of the Constitution, vol. II, pp. 779-793.

Secretary Seward, in his conditional proclamation of July 20,
1868, after enumerating the States whose Legislatures had ratified
the Amendment, stated that it had also " been ratified by newly
constituted and newly established bodies avowing themselves to be,
and acting as Legislatures respectively of the States of Arkansas,
Florida, North Carolina, Louisiana, South Carolina, and Alabama."
It was also stated in the proclamation that the Legislatures of
Ohio and New Jersay had passed resolutions withdrawing their
consent, but that if the resolutions of these States " ratifying the
aforesaid Amendment are to be deemed as remaining of full force
and eflfect, notwithstanding the subsequent resolutions of the Legis-
latures of those States which purport to withdraw the consent of
the said States from such ratification, then the aforesaid Amend-
ment has been ratified in the manner hereinbefore mentioned and so
has become valid to all intents and purposes as a part of the
Constitution of the United States."

On the next day Congress passed a resolution declaring that the
Amendment had been ratified. Secretary Seward then issued the
final categorical proclamation, July 28, 1868, declaring the Amend-
ment a part of the Constitution.

192 Adoption of the Fourteenth Amendment.

section would take away from the States a right which they
had possessed since 1776, — -the right to determine what
should constitute their own citizenship. The object of this,
it was asserted, was to confer citizenship upon the negroes
who would thereby be entitled to all the "privileges and
immunities " of white citizens, among which were suffrage,
participation in jury service, bearing arms in militia and
others which did not need enumeration. The negroes were
excluded from these privileges by law in most of the orig-
inal free States, said the Committee, and in all of them by
immemorial usage. There was scarcely any limitation to
the powers sought to be conferred upon the Federal
Government by the first section, continued the report,
since Congress might declare almost anything, even mis-
cegenation to be a privilege or immunity of a citizen
of the United States, which would thereupon immediately
attach to every citizen in every State. On the same day
that this report was made the House rejected the Amend-
ment by a vote of 70 to 5.^^^ The Senate Committee on
Federal Relations made a report very similar to that made
in the House. The Amendment only received one vote in
the Senate, the vote being 27 to i against ratification.^^*

Governor Jenkins, of Georgia, an old-line whig, opposed
the Amendment in his message. His objection to the first
section was that it centralized power in the Legislative
Department of the Government by giving Congress the
right to settle definitely the question of citizenship in the
States. He declared that under the fifth section Congress
would contend that it was the proper judge of what con-
stituted " appropriate legislation," so that no vestige of
hope would remain for the Southern people " if this Amend-
ment were adopted." "<> The House rejected it by a vote

"I Texas House Journal, 1866, pp. 578-584.
^ Texas Senate Journal, 1866, p. 471.
""Charleston Courier, November 7, 1866.

The Amendment Before the States. 193

of 147 to 2/2^ and the Senate unanimously (38 to o), on
^TSTovember 9, 1866."^

JprJtrnoT Walker, of Florida, on November 14, 1866, "P
niitted the Amendment to the Legislature with a mes- *

"^ge advising its rejection. The first and fifth sections, he
declared, conferred upon Congress the power of legislating
about everything that touched " the citizenship, life, liberty,
or property of every individual " in the country, and made
the existence of the Government of the States of no further
usey/" It is in fact," he continued, " a measure of consoli-
dation entirely changing the form of the Government."
The Amendment gave to Congress all the powers which had
previously been exercised, he said, by the States over the
affairs of individuals. He also pointed out that to vote for
the Amendment would be to vote for the destruction of the
Government of the State, since it would disfranchise the
most capable men of the State.^^' The House Committee
on Federal Relations took about the same position as that
taken by the Governor, for in its report, November 23, it
was stated that the first and last sections practically an-
nulled the authority of the States in regard to the rights of
citizenship. It was also the opinion of the committee that
the elective franchise and the right to serve as jurors would
be considered privileges. Congress would also have the
power, under the Amendment, said the committee, to annul
state laws affecting the life, liberty and property of the
people whenever it " should deem them subject to the ob-
jections therein specified." Since the Amendment would
affect the general interests of all the people of the Union,
the committee was unable to see how any State could vol-
untarily invest Congress with such extraordinary power,
the whole tendency of which was to the consolidation of

^ Georgia House Journal, 1866, p. 68.
"* Georgia Senate Journal, 1866, p. 72.
"'Florida Senate Journal, 1866, p. 8.

194 Adoption of the Fourteenth Amendment.

the Government. Moreover, the sections were objected to
as being couched in language that was too " general and
questionable." "* The Amendment was rejected unani-
mously (49 to o) by the House, December i, 1866.^"^

The Senate Committee was equally as emphatic as that
of the House, for in its report, December 3, it was declared
that the States would cease to exist as bodies politic from
the moment the Amendment was engrafted upon the Con-
stitution, since Congress would be endowed by it with all
the powers which had belonged to the States prior to that
time. A great central power at Washington would thus be
created, it was asserted. Under the first section alone
Congress could subvert and change the whole economy of
the State, said the report, whether the people of that State
approved it or not, for it was appalling to think what power
might be seized and exercised under the head of " appro-
priate legislation." The Committee was also unwilling to
surrender the right of the State to determine who should
exercise the right of franchise within its limits.^^* The
Senate unanimously (20 to o) concurred in the House

resolution the same day that its Committee made this
(L.^ report.^"

|- i^ The message of Governor Patton, of Alabama, November
■/ 2, 1866, was very similar in substance to that of Governor
"Walker. In this message he advised against the ratifica-
tion of the Amendment on the ground that the first section
was of vast, if not dangerous, import, for by it the judicial
powers of the General Government would be greatly en-
hanced, overshadowing and weakening the authority and
influence of the state courts. It might also be possible, he
said, to reduce the latter to a nullity, since the Federal Courts
would be given complete and unlimited jurisdiction over

"^^ Florida House Journal, 1866, p. 76.
"* Ibid.j p. ISO.

'^' Florida Senate Journal, 1866, p. 102.
^ Ibid., p. III.

The Amendment Before the States. 195

every conceivable case that might arise, civil or criminal,
however important or trivial.^^*

On December 6, however, he sent another message advis-
ing the ratification of the Amendment as a matter of neces-
sity and expediency. He stated that it was evident that
the majority in Congress was determined " to enforce at all
hazards its own terms of restoration," though he added
that his views as to the merits of the Amendment had not
changed in the least. He also stated that the views given
in his first message were based on principle, but that they
should look at their true condition and ratify the Amend-
ment in order to be restored to the Union.^^* This message
created considerable excitement and there were chances of
favorable action, it was stated, until the receipt of ex-
Governor Parson's telegram the next morning. This is
somewhat doubtful, since it was said that the press of the
State was almost a unit against Governor Patton's last
position,^^^ It was stated in the telegram that President
Johnson was still the friend of the South and on no account
should the Amendment be ratified. December 7, the day
after the receipt of the message, the Amendment was re-
fected by an almost unanimous vote, 66 to 8 in the House,
and 28 to 3 in the Senate J An eflfort was made in the
House to have the question Submitted to the people, but this
was defeated by a vote of 49 to 24.^^^

Efforts were made in January to reconsider the vote on
the Amendment. Mr. Parsons wired the President asking

^ To quote his language : " It matters not what might be the
character of his case. It might be civil, or criminal. It might be
a simple action of debt, or a suit in trover; it might be an in-
dictment for assault and battery, for larceny, for burglary, for
arson, or for murder. It would be all the same. Upon a simple
complaint that his rights, either of person or property, had been
infringed, it would be the bounden duty of the tribunal to which
he made his application, to hear and determine his case." — Alabama
House Journal, 1866, p. 213.

"" Annual Cyclopaedia, 1866, p. 12.

'** McPherson, Scrap-book, " Fourteenth Amendment," pp. 55-60.

^** Ala. House Journal, 1866, pp. 210, 213, and Senate Journal, p.
183.

196 Adoption of the Fourteenth Amendment.

what to do. The President replied that there could be no
ood in doing this, and the matter was dropped.^^^
Governor Worth, of North Carolina, on November 20,
1866, submitted the Amendment to the General Assembly
with a strong message against its ratification. He held that
it had not been proposed by a Congress composed as provided
by the Constitution, and that on that account alone, no State
could, with dignity, ratify it. He also pointed out the
heterogeneous character of the Amendment, declaring that it
was the first attempt to use omnibus legislation in changing
the fundamental law. It was also stated in the message that
if the fifth section was but a reaffirmation of what was
already in the Constitution, as was claimed by some, it was
mere surplusage ; but if it was intended to enlarge and
amplify the various powers " which would be reasonably im-
plied from the sections which precede it, and to give to Con-
gress a peculiar authority over the subjects " embraced in
those sections, then it was " mischievous and dangerous."
The great value of the American system of government was
due to the fact, said the Governor, that a municipal code was
provided under the jurisdiction of each State for trial, by a
jury of the county or neighborhood where the parties resided,
of all controversies as to life, liberty, or property with the
exception of the very limited field of federal jurisdiction.
This was to be done anyway, he continued, by the Amend-
ment, since Congress would become the protector of those
rights and the "guarantor of equal protection of the laws."
Moreover, Congress would be empowered to provide, by
appropriate legislation, a system of rights and remedies
which could only be administered in the Federal Courts, there-
by transferring to the few points in the State where such
Courts are held the most common and familiar offices of jus-
tice, and to judges and other officers who hold their commis-
sions, not from the people themselves, but from the President
and Senate of the United States. "The States, as by so
much," he added, " are to cease to be self-governing com-

"^The Trial of the President, Supplement to the Congressional
Globe.

The Amendment Before the States. 197

munities, as heretofore, and tresspasses against the person,
assault and battery, false imprisonments, and the like, where
only our citizens are parties, must be regulated by the Con-
gress of the Nation and adjudged only in its Courts." He
was unable to believe, he said, that the deliberate judgment of
the people of any State would approve of the innovation to
be wrought by the Amendment, and as anxious as he was to
see the Union restored, there was nothing in the Amendment
calculated to perpetuate that Union, but that its tendency was
rather to perpetuate sectional alienation and estrangement.^^^

On November 22, a joint Committee was proposed, to
which the Amendment was referred. Four days later Mr.
Logan, of Rutherford County, offered a resolution in the
House for the ratification of the Amendment, but it was re-
ferred to the joint committee on that subject by a vote of 92
to 16,^^* thus showing the fate which awaited the Amend-
ment itself.

The Committee had the Amendment under consideration
for two weeks, making their report, which was a very strong
one, on December 6, 1866. The Committee agreed with the
Governor as to the unwisdom of embracing so many Amend-
ments in one.

In reference to the question whether the Amendment had
been proposed constitutionally, it was pointed out that North
Carolina and her sister States had been repeatedly recognized
" as States in the Union " by all the Departments of the Gov-
ernment, both during and since the war. Several instances
were cited to show this. They were also recognized as
States, said the Committee, by the submission of the Amend-
ment to them for ratification.

The Committee then proceeded to show that if the assent
of those States was necessary to make the ratification valid,
it was equally necessary to render the proposal of it valid.

The Amendment was objected to on the ground that it con-
tained provisions of temporary interests merely, and that only
provisions made for all times should be incorporated into the

"*N. C. House Journal, 1866-67, PP- 24-30.
"* Ibid., p. 81.

198 Adoption of the Fourteenth Amendment.

Constitution. The privileges and immunities which the
States were prohibited from abridging or denying were left
in doubt, declared the Committee, since it was not stated
whether they consisted only of those which were then sup-
posed to exist or whether they included all others which the
Federal Government might thereafter declare to belong to
citizens. The latter construction was the more natural, con-
tinued the report, and was the one which Congress could in-
sist upon as being both correct and consistent with the lan-
guage used. With this construction, what limit was there,
it was asked, to the power of the Federal Government to in-
terfere with the internal affairs of the States. " And what
becomes of the right of a State to regulate its domestic con-
cerns in its own way? Whatever restrictions any State
might think proper, for the general good, to impose upon
any one or all its citizens, upon a declaration by the Federal
Government that such restrictions were an abridgment of
the privileges and immunities of the citizens of the Union,
such state laws would at once be annulled. For instance, the
laws of North Carolina forbid the inter-marriage of white
persons and negroes. But if this Amendment be ratified, the
government of the United States could declare that this law
abridged the privileges of citizens, and must not be enforced ;
and miscegenation would thereupon be legalized in this Com-
monwealth. Grant that such action on the part of the gov-
ernment would not be probable, still it is possible ; and its
bare possibility sufficiently exemplifies the boundlessness of
the powers which the Amendment would confer on the Fed-
eral Government."

Under the original Constitution, says the report, the muni-
cipal aflfairs and the personal and property interests of the
citizens were left to the States, but this was all changed
by the Amendment, for the Federal Government would be
authorized to come between a State and its citizens in almost
all conceivable cases. It would be empowered " to supervise
and interfere, with the ordinary administration of justice in
the state courts, and to provide tribunals, — ^as has to some
extent been already done in the Civil Rights Bill, to which

The Amendment Before the States. 199

an unsuccessful litigant, or a criminal convicted in the courts
of the State, can make complaint that justice and the equal
protection of the laws have been denied him, and however
groundless may be his complaint, can obtain a rehearing of
his cause. The tendency of all this is to break down and
bring into contempt the judicial tribunals of the States, and
ultimately to transfer the administration of justice both in
criminal and civil causes, to Courts of federal jurisdiction, is
too manifest to require illustration."

In reference to the third section, the Committee said:
"What her [North Carolina] people have done, they have
done in obedience to her own behests. Must she now punish
them for obeying her own commands? If penalties have
been incurred, and punishments must be inflicted, is it
magnanimous, is it reasonable, nay, is it honorable, to re-
quire us to become our own executioners? Must we, as a
State, be regarded as unfit for fraternal association with our
fellow citizens of other States, until after we shall have sac-
rificed our manhood and banished our honor? Surely not.
North Carolina feels that she is still one of the daughters of
the great family. Wayward and wilful, perhaps, she has
been ; but honor and virtue still are hers. If her errors have
been great, her sufferings have been greater. Like a stricken
mother, she now stands leaning in silent grief over the bloody
graves of her slain children. The mementos of former glory
lie in ruins around her. The majesty of sorrow sits en-
throned on her brow. Proud of her sons who have died for
her, she cherishes, in her heart of hearts, the loving children
who were ready to die for her, and she loves them with a
mother's warm affection. Can she be expected to repudiate
them? No! it would be the act of an unnatural mother.
She can never consent to it. Never! "

It was stated in the report that it was impossible to con-
ceive how wide the door was opened by the last section for
the interference of Congress " with subjects hitherto re-
garded beyond its range." One of the most serious evils of
the Amendment was declared to consist in the vast addition,
made in so many ways, to the power of the General Gov-

200 Adoption of the Fourteenth Amendment.

ernment There had already developed, said the Committee,
the tendency towards centralization and consolidation, which
had been greatly increased by the defeat of the States which
had always been the advocates of State Rights ; and that even
without new constitutional grants of authority, the Federal
Government was no longer what it once was, but was now
a mighty giant which threatened " to swallow up the States,
and to concentrate all power and dignity in itself." This
centralizing tendency, continues the report, should be checked
rather than fostered, and that the " American people ought
not, by new grants of power, to seem to authorize the con-
tinual exercise of extraordinary prerogatives, undreamed of
in the purer and happier days of the Republic."

It was the opinion of the Committee that the ratification
of the Amendment would not facilitate the restoration of the
State, and moreover, that no humiliation or degradation
could be deeper than yielding to intimidation and ratifying,
through fear, a measure which it disapproved.

Only one member of the Committee refused to sign the
report, and his reason for doing so was based on the belief
that, in view of all the circumstances, it would be to the
interest of the State to ratify the Amendment.^^® The
Amendment was rejected, December 13, by a vote of 45 to

I in the Senate, Mr. Harris, of Rutherford, casting the only

vote in favor of the Amendment.^^" The House rejected it
by a vote of 93 to lo.^^'^

The report of the joint Committee of North Carolina is
valuable, not only from the fact that it is the longest and
most exhaustive made by any Southern State, but also be-
cause it gives the principal objections which induced those
•^States to reject the Amendment with such unanimity.

Governor Murphy, of Arkansas, had recommended the rat-
ification of the Amendment, and a resolution to do this in
order " to calm the troubled waters of our political atmos-
phere " was introduced December 10, 1866.^^^ This resolu-

""N. C. Senate Journal, 1866-67, PP- 91-105.
"•Ibid., p. 138.

*" N. C. House Journal, 1866-67, p. 183.
""Annual Cyclopaedia, 1866, p. 27.

The Amendment Before the States. 201

tion was referred to the Committee on Federal Relations.

On the same day the Senate Committee reported adversely

as to the ratification of the Amendment. 'The report vi^s^Sf"^"^

based on the following grounds :

1. The Amendment had not been constitutionally proposed,!
nearly one third of the States being excluded from all partici-
pation in it.

2. It had not been submitted to the President for his ap-

mil II J I II .._L_i -^-.^«— *"— — ~

provalT / r

3. " The great and enormous power sought to be con-
ferred on Congress, under the Amendment which gives that
body authority to enforce by appropriate legislation the pro-
vision of the first article of said Amendment, in efifect, takes
away from the States all control over all the people in their
local and their domestic concerns, and virtually abolishes the
State."

4. The second section, whether intended so or not, gave
the power to bring about negro suffrage, with or without
the consent of the States.

5. The third section would disfranchise many of the best
and wisest men of the State.

The Committee thought it preferable to bear their
" troubles, trials and deprivations, and even wrongs, in dig-
nified silence," rather than to commit an act of disgrace, if
not annihilation, such as would result in the adoption of this
Amendment by the Legislature.^^^

This report was adopted December 15, by a vote of 24
to i."°

''"^he House Committee reported against ratification De-
cember 17, stating as its reasons for doing so, that the
Hrst section made negroes citizens and prohibited the States
from abridging any of their privileges as citizens of the
United States. The report also declared that Congress
would be empowered to define what rights they should en-
joy, and to elevate them by legislative enactment to a polit-
ical equality with the whites. " It also transfers to Con-

'^Ark. Senate Journal, 1866, p. 259.
"•Ibid., p. 262.

202 Adoption of the Fourteenth Amendment.

gress," continued the Committee, " jurisdiction of the local
and internal affairs of the States, virtually destroying the
independence of their courts and centralizing their reserve
powers in the Federal Government." The report was adopted
tl;g„§ame day by a vote of 68 to 2.^*^ '. ""

Governor Orr, in his message to the General Assembly of
South Carolina, November 27, 1866, recommended the rejec-
tion of the Amendment. It, in his opinion, gave Congress
the absolute right of determining who should be citizens of
the States, who should exercise the elective franchise, and^
who should /enjoy the rights, privileges and immunities of
citizenship./' By it, he continued, the representatives of Ore-
gon or Cafifornia, or of any State, would be given the power
to declare what should be the measure of citizenship in South
Carolina or any other State, and this he declared to be an evil,
since the citizens of the States were more likely to exercise
this power judiciously and intelligently than non-residents
who knew nothing of the people, their necessities, resources,
etc. " With this Amendment, incorporated in the Constitu-
tion," he declared, " does not the Federal Government cease
to be one of ' limited powers ' in all of the essential qualities
which constitute such a form of government.""^

About a week before this message was sent, ex-Governor
Perry of the same State, in an open letter to the editor of
the New York Herald^*^ asserted that the last section of the
Amendment destroyed all the rights of the States and cen-
tralized all power in Congress, and that this was done, not
openly, but covertly and insidiously.

The Amendment was rejected in the House, December 20,
by a vote of 95 to i. The Senate concurred in the resolu-
^■tion rejecting it, but the vote was not given.^tl-—— — ^

Governor Pierpont, of Virginia, advised the ratification of
the Amendment in order to improve the condition of the
people, but the Legislature did not follow his advice. The.

^^Ark. House Journal, 1866, pp. 288-91.

*" S. C. House Journal, 1866, p. 34.

'"November 22, 1866.

^"S. C. House Journal, 1866, p. 284, and Senate Journal, p. 230.

The Amendment Before the States, 203

Amendment was rejected by both Houses January 9, 1867,
the vote in the Senate being 27 to o; in the House 74 to i.^*'
""Governor Humphreys, of Mississippi, characterized it, in
his message, as an insulting outrage to many of their wor-
.thiest men, and as "such a gross usurpation of the rights
of the States and such a centraHzation of power in the Fed-
eral Government " that the mere reading of it was sufficient
to cause its rejection.^F Ex-Governor Sharkey, who was
Senator-elect from the same State, in a letter from Wash-
ington, September 17, 1866, to Governor Humphreys, called
attention to the fact that the Amendment did not enumerate
the privileges and immunities for which Congress might
provide by the last section. He also suggested that Con-
gress might confer privileges on one class to the exclusion
of another class, or might even assume absolute control over
all the people and the domestic concerns of a State, but
stated that any State which had so little self-respect as to
adopt it deserved no better fate. To him, however, the
fifth section was the Trojan horse of mischief, since it could
be construed to empower Congress to do whatever it desired
to do. He then cited a similar provision attached to the
13th Amendment, under which Congress held that it had
power to pass the Freedman's Bureau and Civil Rights Bills.
Congress had interpreted the second section of that Amend-
ment, he said, just as he, when Governor of Mississippi, had
admonished many members of the Legislature that it would
be. He, therefore, thought they should profit by the expe-
rience which had been furnished them by the same pro-
vi^n in the Thirteenth Amendment.^*'^
/' The Amendment was unanimously rejected by both Houses,

/ in the House, January 25, 1867, 88 to o, and in the Senate,
C January 30, 27 to o.^*®

\_-fe^touisiana, just as in Arkansas and Virginia, the Gov-
ernor advised the ratification of the Amendment but, as in

^^'Va. House Journal, 1866-67, p. 108, and Senate Journal, p. loi.
*** Annual Cyclopaedia, 1866, p. 521.

"''Atlanta Intelligencer, October 5, and N. Y. Herald, October 6,
1866.
"' McPherson, Reconstruction, p. 194.

204 Adoption of the Fourteenth Amendment.

those two instan(:es, the advice was not heeded. The Gov-
ernor did not advise its ratification as a matter of expediency,
but because he regarded it just and proper, ^though he
thought the States should be required to grant the negroes
equal political rights. A -joint resolution jrejecting the
Amendment was almost immediately introduced in the Sen-
'ate, to which both Houses agreed without a dissenting vote,
the Senate February 5, and the House the next day.^1®

Thus, within less than eight months after the Amendment
» had been submitted by Congress, every one of the so-called
disloyal States, except Tennessee, had rejected the Amend-
ment, three of them unanimously, and the others almost so.

Of the three border States which rejected the Amendment,
Kentucky comes first. There was apparently no debate
in either House, the Amendment being rejected by both on
January 8, 1867. The, vote in the House was 67 to 2y, and
in the Senate 24 to g.^y

Xlelawace, one of the three States that never ratified the
Thirteenth Amendment, also has the distinction of being
one of the three States which rejected and never afterwards
ratified the Fourteenth Amendment. In his message to the
Legislature, Governor Saulsbury said that the people had
spoken so emphatically against ratification he felt sure that
it would be rejected.^^^ The Committee in the House re-
ported against ratification February 6, 1867, and this report
was adopted by a vote of 15 to 6. The Senate concurred
next day by a vote of 6 to 3.^"

Maryland followed Delaware the next month, both
Houses rejecting the Amendment, March 23, by a vote of
47 to 10 in the House, and 13 to 4 in the Senate.^^^

The joint Committee on Federal Relations, declared, in
their report March 19, that the proposition, which the
States were called upon to ratify, would strip the States of
powers most vital to their safety and freedom, and even to

** Ibid., p. 194, and Annual Cyclopaedia, 1866, p. 452.

"•Ky. House Journal, 1867. p. 60, and Senate Journal, p. 62.

"*Del. Senate Journal, 1867, p. 26.

*" Ibid., p. 176, and House Journal, p. 223.

""Md. House Journal, 1867, p. 1141, and Senate Journal, p. 808.

The Amendment Before the States. 205

their continued existence in any useful way, and would
bestow those powers upon the Federal Government. Before
giving assent to such a proposition, the Committee thought
it should be considered in all its aspects and consequences,
Maryland's geographical position, her commercial relations
with all parts of the Union, as well as her patriotic desire
for the welfare and happiness of the whole country and her
desire for the speedy restoration of friendly relations between
the States, would, said the Committee induce her to make
every possible sacrifice to secure the great objects of the
Constitution, namely, " To establish justice, insure domestic
tranquillity, provide for the common defense, promote the
general welfare, etc." The Committee, however, was unable
to see anything in the proposed Amendment which tended in
that direction. In order to understand the nature and the
objects of the Amendment, they went into the history of
it, and examined the grounds upon which its ratification was
urged. The report of the Reconstruction Committee was
gone into quite at length, after which the Committee
said that the report showed that the avowed purpose
was to punish the Southern States and people for the future
peace and safety of the country. Two incongruities in the
proposition were pointed out: first, that while the demand
for conferring additional power upon the Federal Govern-
ment was presented in the report of the Reconstruction
Committee, as if made upon the Confederate States only,
it was in fact made upon all the States, since it would be
binding on all if ratified; secondly, that while it would
greatly diminish the power of the Southern States in the
House of Representatives it would at the same time reduce
that of Maryland and other States which stood loyally by
the Government. The Committee also reached the conclu-
sion that the Amendment had not been properly proposed —
eleven States being forcibly excluded from all participation in
Congress. It was pointed out that there was no thought
of compulsory representation in the Constitution and cer-
tainly, continued the report, none of forcible exclusion. The
same Congress which excluded the Southern Senators and

2o6 Adoption of the Fourteenth Amendment.

Representatives had recognized their state governments as
legally accepting the ratification of the Thirteenth Amend-
ment by their Legislatures, while at the same time claiming
and exercising the power to pass the Civil Rights Bill and
Freedman's Bureau Bill in virtue of that Amendment. The
fact that the Amendment had not been properly proposed
was of itself an insuperable obstacle to its ratification by
Maryland, but the Committee stated that if this fact were
otherwise, the State could not voluntarily assent to any of
the propositions of the Amendment. Allusion was made to
the danger of rashly disturbing the admirable adjustment of
the balance of powers between the Federal and state govern-
ments, while the passions of men were highly excited, thus
rendering them blind to, and reckless of, consequences. The
Fathers " guarded against the danger of consolidation.
That now is the rock upon which our ship of State is in
imminent danger of being totally wrecked " declares the
report.

The object and eflfect of the first clause of section one
was to give Congress, it was asserted, instead of the States,
the right to determine who should be deemed citizens of the
States, and what residence should be necessary to constitute
citizenship. All the provisions of the Amendment, it was
stated, " must be read in the light of the fifth section, and
of the interpretation already given by Congress to the same
language in the Thirteenth Amendment." To provide for
the protection and regulation of life, liberty and property
was declared to be " the sole and exclusive right of every
State," and the proposition to invest Congress with the
power of supervision, interference and control over state
legislation in regard to those questions was virtually to
empower Congress to abolish the state governments.

In regard to the second section, the Committee said that
it would abridge a right of the States theretofore unques-
tioned. It was a well known fact, it was stated, that the
representation of the South would be constitutionally en-
larged by the emancipation of the slaves, but that even then
that section would be in such a hopeless minority, that it

The Amendment Before the States. 207

would be difficult to imagine a higher compliment or tribute
than was paid by the Reconstruction Committee to the moral
power and intellectual prowess of Southern Representatives
in the expression of the fear and danger that they would
control Congress if admitted without diminished power.

The third section was objected to on the ground that it
was ex post facto, and the fourth, on the ground that it
would inspire apprehension rather than confidence, in regard
to the public debt, and that compensation should be made
for the slaves of Maryland.^^*

Governor Swann, in his message January 4, 1867, said
that it could not have escaped notice that the five distinct
propositions of the Amendment embodied more than their
language would seem to convey. The last clause, he de-
clared, which gave Congress power to enforce the other
propositions " by appropriate legislation," might leave the
Southern and border States at the mercy of a mere congres-
sional majority, which might become dangerous to the
liberties of the people in times of high party excitement
and sectional alienation.^^^ L

California is the only State that neither rejected nor rati- J^^
fied the Amendment. The House Committee on Federal *^
Relations recommended, March 4, 1866, that it be not rati-
fied while the Senate Committee, March 20, reported in
favor of ratification,^^* but no vote seems to have been
taken by either House. This was no doubt due to the facX^
that the House was Democratic and the Senate Republican,
_so that it was useless to vote. *

This somewhat extended examination of the action and
views of the different States in regard to the Amendment
leaves but little doubt as to the views generally held regard-
ing its object and purpose. To be sure, the members of
several of the Legislatures were elected prior to the sub-
mission of the Amendment and on an entirely different

'"Laws of Maryland, 1867, pp. 879-911, also Doc. MM., House
Journal and Documents, 1867.
"' Md. House Journal and Documents, 1867, Doc. A., p. 21.
"•Cal. House Journal, 1867-68, p. 611, and Senate Journal, p. 676.

2o8 Adoption of the Fourteenth Amendment.

issue, so that their action may be said not to represent the
will of the people, but the command of political leaders.
This contention might be well founded in some instances,
but when viewed in the light of the elections which were
soon to follow, it should have little weight, for the Radicals
swept the country in the elections of 1866 in almost every
State north of Mason and Dixon's line, often with increased
majorities. It may be properly said, however, that if the
question of the ratification or rejection of the Amendment
had been presented to the people by itself, the result might
have been quite dififerent.

The question the people had to decide or to determine in
the election was not a simple, but a complicated one. The
first section, the most important of all, was largely lost
sight of in the general excitement. Furthermore, the
people were not in a frame of mind to consider any ques-
tion calmly and deliberately, and it was certainly a most
inopportune time to secure the sober judgment of the
people in changing the fundamental law of the country.

It may cause surprise that the people and the States were
willing to increase the power of the Central Government
to the extent contemplated by the framers of the Amend-
ment, but it does not seem so strange when we consider the
circumstances. The people were made to feel and believe
that the preservation of the Union was again at stake,* that—
if the Amendment was not adopted, the " Rebels " would
soon be in control of the Government at Washington ; that
the national debt would be repudiated ; that the Rebel debt .
would be assumed; that the slaves would be paid for; that
treason would be glorified ; and that loyalty would be made
odious. Many of the people held government bonds and
notes, and, to insure their payment, voted for the Amend-
ment; others thoroughly hated the South, and, to weaken
the power of that section, supported it; others still wanted
to perpetuate their party and saw the opportunity to do
this by incorporating the Amendment in the Constitution;
while many no doubt were sincere in their devotion to the
Union and were willing to do anything for its preservation,

The Amendment Before the States. 209

and, believing the Amendment necessary for this, voted for
it. With all these various and heterogeneous elements at
work, there is really nothing to cause surprise that the
Amendment was overwhelmingly ratified by the popular
vote. Moreover, there can hardly be any doubt but that
the action of some of the radical, hot-headed men in the
South contributed to swell the Radical majority in the
North. The Memphis riots, the riot at New Orleans, and
the attitude of many in speeches and acts — all tended to
increase the flame at the North, while everything was seized
upon by the Radical politicians to show that the South was
^till rebellious and disloyal, that the negroes would be re-
enslaved, and that the Union would be destroyed if the
Democrats were once permitted to get control of the Gov-
ernment. One has only to read the speeches made during
the campaign to see that the effort of most of the political
orators was to arouse the passions of the people, to in-
crease their prejudices and hatred, to appeal to selfish mo-
tives, and to clothe all these appeals in terms of rights and
justice. If there is any surprise it should be that the ma-
jority was not larger than it really was.

As in all questions of this kind, the great mass of the
people never really comprehended the meaning and purpose
of the Amendment, and of those who did, many chose what
they considered the lesser of two supposed evils — preferring
to have the Government in the hands of the Radicals with
the Amendment than in the hands of the Democrats without
the Amendment. For the question was so presented as to
make it practically impossible to reject the Amendment and
still keep the Government in control of the Radicals, since
the Legislatures, which were to act on the Amendment,
would, in many instances, elect United States Senators as
well.

In the concluding chapter we shall give the interpreta-
tion given the Amendment by Congress.

CHAPTER V.

Congressional Interpretation of the Fourteenth

Amendment.

Having given a historical resume of the origin and
development of the Fourteenth Amendment, its passage by
Congress Ahe attitude of the press and the people towards
it.'' and its final ratification by the States, it now devolves
upon us to give the interpretation which Congress gave to
it after it had been proclaimed a part of the fundamental
law of the land. This interpretation is shown in the de-
bates on the bills which were presented for its enforcement
and in the legislation which was actually enacted into law. J

Congress, which was in session at that time, adjourned a
few days later without making any attempt to pass a law
looking to its enforcement.

Mr. Broomall, of Pennsylvania, had introduced a bill,
July, 1867, to secure equal political and civil rights to all
citizens regardless of race or color. It was not considered,
however, until the eighteenth of March, 1868, when it was
debated quite at length. Its purpose was not to enforce
the Fourteenth Amendment, since it had not yet been de-
clared a part of the Constitution, but to guarantee a re-
publican form of Government to every State. But at the
time the debate took place, March 18, 1868, many of
the Radicals thought the Amendment had been ratified by
all the States necessary to make it a part of the fundamental
law. This was the position taken by Mr. Thaddeus
Stevens and he stated that until that Amendment had be-
come a part of the Constitution, there was nothing in that
instrument to warrant the passage of such a bill by Con-
gress. By that Amendment Congress was given the power,
in his opinion, to regulate the suffrage in every State of

210

Congressional Interpretation of Amendment. 211

the Union.^ Mr. Stevens was the only one of thc^e who
spoke who specifically made the Fourteenth Amendment
the authority for passing such a bill, the others finding it
in the original Constitution. Two Republicans (Messrs.
Spalding and Lawrence) declared that the bill could find
no sanction in the Constitution, and that two thirds of
their colleagues held the same views. One of them (Mr.
Spalding) stated that such a bill, if passed, would be the
death knell of their party in the presidential election the
following fall.^ The bill was not brought before the
House again, its defeat being evident.

When Congress reassembled, December 7, 1868, a bill was
introduced by Mr. Boutwell on that day declaring who might
vote for electors for President and Vice-President and Rep-
resentatives in Congress. This bill was referred to the Com-
mittee on the Judiciary, of which Mr. Boutwell was a mem-
ber, and a substitute was reported for it by the Committee
on January 11, 1869. The Committee, at the same time, re-
ported a joint resolution proposing an Amendment to the
Constitution, which became, in substance, the Fifteenth
Amendment. It may seem strange that the same Commit-
tee which reported a bill declaring that " No State shall
abridge or deny the right of any citizen of the United States
to vote for electors of President and Vice-President of the
United States or of Representatives in Congress, or for
members of the Legislature of the State in which he may
reside, by reason of race, color, or previous condition of
slavery; and any provisions in the laws or constitution of
any State inconsistent with this section are hereby declared
to be null and void," should at the same time bring a resolu-
tion for amending the Constitution of the United States to
secure practically the same thing. If Congress already had
the power to regulate suffrage, what need of an Amendment?
This seems a reasonable question and the action of the Com-
mittee appears, at first sight, contradictory and inconsistent,
but however contradictory, their action was not inconsistent

^ Globe, 40th Cong., 2d Sess., pp. 1966-67.
^Ibid., pp. 1971 and 1973.

212 Adoption of the Fourteenth Amendment.

jyithJthe past history of their party. It has already been
shown in the earHer pages of this study that the very men
who passed the Civil Rights Bill submitted the Fourteenth
Amendment, the first section of which practically incor-
porates that bill. The Fortieth Congress was thus following
the precedent set by its predecessor. The same arguments
were used in this instance as in that of the Civil Rights Bill.
The second and third sections of the bill were remedial and
punitive — their purpose being to enforce the first section
which we have given above. The fourth section was to en-
force the third section of the Fourteenth Amendment, and
was punitive in its nature. By this section any one violating
section three of said Amendment was to be imprisoned at
hard labor for two years, being subject to indictment within
ten years after committing the act. By the fifth and last sec-
tion of the bill, exclusive jurisdiction of all offences against
the act was to be given to the District Courts of the United
States.

The first section is the only one which we shall consider,
since it is the only section of any importance in connection
with the Amendment under consideration. Mr. Boutwell,
while discussing the bill, stated that he thought Congress
had broader powers than those set forth in the first section,
but that it was his belief that the objects desired could be
obtained by that section, and so not advisable or desirable to
enact legislation not necessary to secure those objects, or the
object, he might have said, for negro suffrage was the thing
desired. He based the power of Congress to pass this bill
either in the second and fourth sections of the first article,
or the fourth section of the fourth article of the Constitution.
He relied more, however, upon the Fourteenth Amendment,
declaring that if there were doubts in the minds of any as to
the power of Congress to legislate on this subject, those
doubts must disappear, in his opinion, upon an analysis of
that Amendment. ' He contended that the first section of the
Fourteenth Amendment inhibited the States from depriving
citizens of those rights which were derived directly from the
States as well as those derived directly from the United

Congressional Interpretation of Amendment. 213

States. In other words, he maintained that the privileges
and immunities which the States were prohibited from de-
priving any citizen of were not only the privileges which
they had as citizens of the United States, but also those
which belonged to them by virtue of being citizens of the

^States. His interpretation of the Amendment was thus
opposed to that given by the Supreme Court in the Slaugh-
ter House CasesTj He declared that the inhibition upon the
States in the first section was a comprehensive one — apply-
ing to all or to nobody. His theory was not that the States
could not extend or limit the rights and privileges of its
citizens as such, but that if they did, the provisions should
apply to all alike, A State might pass a law that no one
of a certain age should go to school, should sell goods,
carry weapons, etc., but the law must apply to all alike.

Having developed his theory or interpretation of the
Amendment to this point, he next considered the question
whether suffrage was one of the privileges of a citizen. He
quoted at length from a decision by the Supreme Court of
Kentucky to show that no one was a citizen in the true sense
of the word unless he enjoyed the highest privileges of citi-
zenship. If one man, contended Mr. Boutwell, had the right
to vote for certain officers in any State, then every man hav-
ing like qualifications of education or property had the same
right, since if this were denied to any one, he would be de-
nied the enjoyment of equal privileges to which he was en-
titled by the Constitution. The power of Congress to pass ^ /
such legislation as he proposed in the bill was to be found ■
in the fifth section of Article Fourteen. He stated that Con-
gress had unlimited power under that Article to legislate for
the purpose of securing to citizens of the United States
privileges and immunities of citizens of any one of the States
— to see to it that the States did not discriminate against

_ any class of citizens. In answer to the question why it was
not stated in the Amendment that States could not discrimi-
nate among their own citizens in regard to suffrage, he re-
plied : " It was not necessary. The Article provides, as it
stands, that there can be no discrimination by the States

214 Adoption of the Fourteenth Amendment.

among the citizens of the United States, who are as well citi-
zens of the several States and entitled equally to the privi-
leges of citizens." He denied in toto the doctrine that the
second section was a concession or admission that the States
had the right to abridge or deny to a citizen the right of suf-
frage. It was but a political penalty for doing what the first
section declared no State had the right to do. Congress,
when the Fourteenth Amendment was submitted, was acting
at a time when many of the States were doing what the first
section declared they had no right to do. According to Mr.
Boutwell, a penalty was provided to prevent any State from
taking advantage of this wrong in case Congress should not
exercise the power conferred upon it by the fifth section of
the Amendment. Congress was now called upon to exer-
cise that power in order to remedy this evil — this wrong
which the States had been committing. He pointed out the
anomaly of our Government, if this power to legislate in re-
gard to suffrage be denied Congress, in that there would be
citizens eligible for the office of President, etc., and yet were
not voters. He denied that a State could lawfully deny or
abridge the right to vote, and added : " We knew there were
some States in which the wrong existed. It might require
time before Congress could exercise its powers under the
fifth section, and the country meant to say that while this
state of things continued — a state of things unjust and con-
trary to the Constitution — the States should not have the
benefit of their wrong doing."

He gave as one reason for the submission of a constitu-
tional Amendment, at the same time advocating the bill he
had introduced, that there was nothing in the Constitution
to prevent the United States from denying or abridging the
right of citizens to vote, as the Fourteenth Amendment was
but a limitation upon the States. The proposed Amendment
would place a like limitation upon the United States. He
also stated that if the Constitutional Amendment be sub-
mitted alone — without the bill, that it would in a certain sense
be an admission that the power for which he was then con-
tending was wanting. An argument similar to that used for

Congressional Interpretation of Amendment. 215

incorporating the Civil Rights Bill in the Fourteenth Amend-
ment was that some future Congress could repeal a mere law
and that it was better to have it in the Constitution. One
of his principal arguments for the passage of the bill was that
the colored voters would be a potent factor in securing the
adoption of the proposed Amendment. This was a political
argument of course, and showed to what extent the political
leaders of that time were willing to go to maintain their
power. He recited the number which would be added in
Pennsylvania, Ohio, Kentucky, Maryland, Delaware, New
Jersey, New York and others.^

This rather extended analysis of Mr. Boutwell's speech
seems warranted from the fact that it was made within six
months after the final proclamation of Secretary Seward
announcing the ratification of the Fourteenth Amendment. It
was also the first exposition or interpretation given in Con-
gress to that Amendment after its ratification. Furthermore,
Mr. Boutwell had been a member of that famous Reconstruc-
tion Committee which had proposed that Amendment, and
speaking so soon afterwards, his statements should be given
more weight than the ordinary speeches, for he evidently
knew the secret motives which prompted the Committee in
submitting the Amendment.

Mr. Knott followed Mr. Boutwell with a speech in which
he undertook to demonstrate that the third section of the
Amendment, which was to be enforced by the fourth section
of the bill under consideration, could only apply to insurrec-
tions which might take place in the future. His entire
speech was devoted to this topic, and so is not of any great
importance to us. His main contention was that no matter
what Congress intended, this intention could be of no effect
if the language used in the measure was clear and compre-
hensible, as this was.*

Another speech delivered in regard to this bill was that
by Mr. Eldridge, of Wisconsin. He declared that the bill
and joint resolution were but steps toward centralization

' Globe, 40th Cong., 3d Sess., pp. S55-6i.
* Ibid., pp. 561-66.

2i6 Adoption of the Fourteenth Amendment.

and consolidation, evincing a premeditated design to con-
centrate all power in the Federal Government. He con-
tended that the second section of the Amendment recog-
nized the right of the States to regulate the suffrage and
said that was the view taken at the time, and the one
strongly set forth by Thaddeus Stevens. " It was under-
stood to be optional with the States to grant this right of
suffrage to its negroes or have its representation in Con-
gress proportionately reduced." "^

Mr. Shanks declared his purpose to support the bill and
the proposed Amendment, but without making any argu-
ment as to constitutional right to pass such a bill." He
was followed by Mr. McKee, who, as a member of the pre-
ceding Congress, voted for the Fourteenth Amendment,
declared that the right of Congress to legislate on the ques-
tion of suffrage was unquestionable since the passage of
that Amendment.'^ Mr. Beck, of Kentucky, had preceded
these last two gentlemen with a rather long speech, the
most important part of which was an effort to show that
it was never claimed while the Amendment was before Con-
gress that it would give the power now claimed for it, but
that it was denied by Trumbull and others that it could
do so.

Mr. Cullom thought a State had no right to disfranchise
a citizen on account of race or color, but was not sure that
the Fourteenth Amendment was clear enough on this point.*/
Mr. Kerr denied the right of Congress to pass the bill,
holding that suffrage was not one of the privileges of
citizenship.*/'

Mr. Miller, a Republican, held that the Fourteenth
Amendment did not authorize the bill and that it was not
contemplated to confer such power at the time it was pro-
posed.^<> Mr. Shellabarger, while not specifically saying

' Ibid., pp. 642-45.
• Ibid., p. 692.
'^Ibid., pp. 694-96.
•Ibid., p. 651.
•Ibid., pp. 653-58.
Ibid., Appendix, p. 92.

Congressional Interpretation of Amendment. 217

so, seemed to think that the bill was constitutional.^^ Mr.
Broomall was in favor of the bill, evidently thinking it
constitutional.^^ Mr. Loughbridge also thought that the
States did not possess the power to deny to any class of
citizens the suffrage on account of race or color, but ad-
mitted that he thought the majority of the people believed
such power was in the States.^* Mr. Higby declared that
the language of the first section of the Amendment was so
comprehensive that it seemed to include every right per-
taining to citizenship, but that the second section implied
that States might deny or abridge the right to vote.^ With
the exception of this right, he would hold that all other
rights were conferred by the Amendment.^*

The bill was not discussed after January 29, 1869, the
resolution proposing what practically became the Fifteenth
Amendment having passed the House January 30. From
the fact that the bill was not pressed for definite and final
action, one might conclude that it was realized by the lead-
ers that it could not pass, but the effort to pass it, as well
as the expressions made in regard to it, together with the
fact that the Committee on the Judiciary reported such a
bill, are significant.

Mr. Stewart had, prior to this, December 14, 1868, in-
troduced a resolution (S. R. 6yy) to enforce the third sec-
tion of the Fourteenth Amendment. A month later, Jan-
uary 14, 1869, Mr. Sumner introduced a bill (S. R. yyy)
to the same effect. Mr. Buckalew, speaking of the resolu-
tion introduced by Mr Stewart, admitted that Congress had
the power to pass it under the Amendment, but thought the
proper course to enforce the section was through the Civil
tribunals.^"* Neither of the above resolutions was debated
nor does the Senate appear to have taken any further steps.

No real effort seems to have been made during the first
session of the Forty-first Congress, and this was probably

" Ibid., p. 98.

"Ibid., p. 102.

"Ibid., p. 199.

"Ibid., p. 294.

"Globe, 40th Cong., 3d Sess., p. 1490.

21 8 Adoption of the Fourteenth Amendment.

due to the fact that it was a special session and very short.
Two bills were introduced in the House, however, for the
purpose of enforcing the third section of the Amendment
(March 24 and 25, 1869), but neither of these bills was
considered. Two bills were also introduced into the Sen-
ate to the same effect, but no action was taken.

Several bills were introduced at the next session of Con-
gress which met December, 1869. Mr. Spence introduced
a bill (S. R. No. 293), December 7, 1869, to amend the
Civil Rights Bill, but this was indefinitely postponed, Feb-
ruary 2, 1870, on the recommendation of the Judiciary Com-
mittee. Two bills were introduced as supplementary to the
Civil Rights Bill— one by Mr. Sawyer (S. R. No. 718),
March 28, 1870; the other by Mr. Sumner (S. R. No. 916),
May 13, 1870. The one submitted by Mr. Sumner is of
considerable importance, being practically the same as the
bill which became law in 1875. It was reported adversely
at this session, however, and indefinitely postponed July 7..
1870. Mr. Rice submitted a resolution that the Committee
on Judiciary inquire into the effect of the Fourteenth
Amendment upon the Indians to determine whether they
were citizens (March 15, 1870).

There were also bills in the House to similar effect; one
being introduced January 17, 1870, to enforce the Amend-
ments and another March 14, following, to amend the
Civil Rights Bill of 1866. It was also at this session that
the House passed a resolution introduced by Mr. Bingham
making it a criminal offence for anyone to attempt to repeal
the ratification of an Amendment after three fourths of
the States had ratified it. The penalty for a violation of
it was a fine of not less than $2,000 nor more than $10,000
and imprisonment of not less than one year nor more than
ten years. This bill was passed July 7, 1870, by a vote of
130 to 54,^* but was pigeon-holed by the Senate Judiciary
Committee.

The fact that these resolutions were introduced shows
that there existed a feeling not only that Congress should

"Globe, 41st Cong., 2d Sess., p. 5357.

Congressional Interpretation of Amendment. 219

enact legislation for the enforcement of the Amendment,
but that it had the power to do so. No action was taken
on any of the above bills at this session, though we shall
now consider one which was debated and finally became
law.

Mr. Bingham submitted a resolution (H. R. 1293) Feb-
ruary 21, 1870, to enforce the rights of citizens of the
United States to vote, probably under the Fifteenth Amend;
ment, though it was not at the time a part of the Constitu-
tion. It was reported back from the Committee on the
Judiciary, March 9, 1870, with an Amendment in the nature
of a substitute. It was not brought before the House for
consideration until May 16, following, when it was passed,
without debate, under a suspension of the rules by a vote
of 131 to 44.^'^ As passed by the House, the bill only dealt
with "the question of suffrage, and so must have been for
the purpose of enforcing the Fifteenth Amendment.

On the same day that the above bill was passed by the
House^'the Senate began the consideration of a bill intro-
duced by Mr. Edmunds in April (S. R. No. 810), and hav-
ing the same object in view as that of the House bill. The
Senate bill was amended by Mr. Stewart for the purpose
of enforcing the third section of the Fourteenth Amendment
and for securing to all persons the equal protection of the
laws. One of the amendments offered by Mr. Stewart
was the first section of the Civil Rights Bill of 1866. In
fact the Civil Rights Bill of 1866 was to be reenacted.^^

Mr. Vickers, a senator from Maryland, declared that
Congress had no power to legislate under the Fifteenth
Amendment until some State had denied or abridged the
right after that Amendment had been ratified, and since no
State had done so, there was no occasion for Congress to
act.^' Mr. Thurman was also of the same opinion.'^"' The
Senate bill consisted of twelve sections, and was a bill of
pains and penalties, while the amendments offered by Mr.

Ibid., p. 3504.
" Ibid., p. 3480.
" Ibid., p. 3481.
* Ibid., p. 3485.

220 Adoption of the Fourteenth Amendment.

Stewart added five more sections, not counting the nine
sections of the Civil Rights Bill which were not repeated.

Mr. Stockton thought Congress was only given the power
to pass laws enforcing the Amendments when it was"" neces-
sary,* i. e., when they were violated.^^ / Mr. Sherman de-
clared that both of the Amendments had been violated in
several States, and especially the Fourteenth. He said
there might be some plausibility in the construction of the
Courts of California as to the Fifteenth Amendment, by
implying that before it should be enforced in the Courts
some legislation should be passed by Congress.^^ If that
be true of the Fifteenth, it would also be true of the Four-
teenth Amendment.

Mr. Schurz said the express provisions affixed to the
Amendments giving Congress power to enforce them were
put there because it was known that those Amendments
would have to be enforced against the prejudices and habits
of the people.^'

Mr. Pool said that the word " deny " as used in both the
Fourteetith and Fifteenth Amendments included acts of
omission ^ well as of commission. A State could not, ac-
, cording to his view, deny by omission, by failure to prevent
J ' its own citizens from depriving any of their fellow citizens of
the rights secured by those Amendments. If a State failed,
to carry into effect the provisions of the Civil Rights Bill to
secure the citizens in their rights, then the fifth section would
be called into operation. No legislation, he continued, could
prevent a State from passing a law, but it could reach the
individuals of the State for enforcing the law. Laws of
Congress act upon citizens, not upon States, he contended,
and Congress could enact legislation for the enforcement
of the Amendments, but such legislation would be applica-
ble to the individuals who violated or attempted to violate
them, for Congress had no power to legislate against

^ Ibid., p. 3567.
^'Ibid., p. 3568.
"^ Ibid., p. 3608.

Congressional Interpretation of Amendment. 221

States, it mattered not whether the individuals were acting
as officers or not.^*

Mr. Howard considered the Fourteenth by far the most
important Amendment to the Constitution, and declared,
May 19, 1870, that he was still of the opinion expressed in
the Report of the Reconstruction Committee.^^ He said the
intention and purpose of Congress in submitting the Fif-i
teenth Amendment was to secure to the colored man, by /
proper legislation, the right to vote, and not merely to con-
fine its operation to legislation by way of prohibition uponj
the United States and the States. If it is to be given that
narrow construction, it will be stripped, he declared, almost
entirely of that remedial and protective justice which was
in the minds of its authors when it was proposed.^®

Mr. Williams objected to the Senate bill, saying that it
was first a bill to enforce the Fifteenth Amendment, upon
which Mr. Stewart had filed a bill to enforce the Fourteenth
Amendment, and another to protect citizens in the enjoy-
ment of their civil rights. Mr. Stewart seemed to desire
the incorporation of the Civil Rights Bill in order to secure
protection to the Chinese aliens who were coming to this
country, and the power to see that they had the equal pro-J
tection of the laws conferred by the Fourteenth Amend- '
^lent.^"

Mr. Morton said that if the construction put upon the
Fifteenth Amendment by some was correct, the second sec-
tion was a nullity, for their argument was that if a state
law violated the Fifteenth Amendment, it was void. He de-
clared that the second section was put there for the purpose
of enabling Congress to carry out the Amendment and that it
was not to be left to state legislation.

Mr. Thurman said the bill had been amended in so many
respects that no one knew what it was, but the Senate refused
to commit the bill to the Judiciary Committee or to lay it
on the table and have it printed. The bill was characterized

*'Ibid., pp. 3611-13.
" Ibid., p. 3614.
* Ibid., p. 3655.
" Ibid., p. 3658.

222 Adoption of the Fourteenth Amendment.

as a " conglomeration of incongruities,"^^ and it must be
said that the characterization was not altogether improper,
for as finally passed, it consisted of 21 sections, but it also
included the Civil Rights Bill of 1866, which would make
about thirty-two sections in all. After an all night session,
the bill was passed about seven o'clock on the morning of the
twenty-first day of May, 1870, by a vote of forty-three to
eight.^®

y^ The House non-concurred in the amendments made by
the Senate (the Senate bill had been moved by way of
amendment as substitute for House bill) and asked for a
conference. The Conference Committee made a few minor
changes, and added two sections, making twenty-three sec-
tions, which with the Civil Rights Bill, made a total of
thirty-four sections.

Mr. Hamilton of Maryland s'aid that, if the doctrines and
principles involved in the bill were sound. Congress possessed
the power, under the Fourteenth Amendment, to legislate
upon all the subjects of life, liberty and property, and that,
taken with the other prohibitions of the Constitution, com-
prehended every right of person or property, thus giving
Congress the arbitrament of every right of the citizen and
of the State. He denied, however, that the denial of a cer-
tain power to a State thereby conferred upon Congress the
power over the subject-matter of such denial.^" He thought
the framers of the Fifteenth Amendment intended, by its
peculiar phraseology, by implication in its construction, for
the Federal Government to take control of elections in the
States, but he did not think they accomplished their purpose.
Mr. Fowler held that the remedy under the Fifteenth
Amendment was judicial, though he admitted that Congress
no doubt intended to confer legislative power upon itself by
the second section.^^
/' Mr. Swann, of Maryland, stated that he foresaw, when

/the Fourteenth Amendment was adopted with the fifth sec-

" Ibid, p. 3688.
'"Ibid, p. 3690.
Z Ibid., Appendix, pp. 353-55.
Ibid., Appendix, p. 421.

Congressional Interpretation of Amendment. 223

tion in it, all that was contained in the bill before the House
in regard to the assumed power of Congress to regulate and
control suffrage within the States, " This clause," he con- , /
tinued, " was so vague and indefinite that it bore upon its r
face the evidence of the stupendous usurpation which it was '
designed to perpetrate." He stated that only one and one
half hours were allowed Democrats for discussion./^

Mr. Casserly, while discussing this bill, said that he did
not think any one regarded the Civil Rights Bill as valid
or Constitutional, and that it was already obsolete. He also
stated that both Amendments were of the same character,
and that if the powers claimed under the Fifteenth Amend-
ment were applied to the Fourteenth Amendment, Congress
could take to itself, under pretence of enforcing that Amend-
ment, the entire criminal and civil jurisdiction of the States
as regards offences against life, liberty, and property.^^ He,
however, denied the power of Congress to do so in both
cases,

Mr. Carpenter, of Wisconsin, seemed to think that the
Fourteenth Amendment authorized the passage of the Sen-
ate bill.3*

The report of the Conference Committee was agreed to
in the Senate, May 25, 1870, by a vote of forty-eight to
eleven;^"* in the House, May 27, by a vote of 133 to 58,^®
The bill as passed by the Houses was signed by the President
May 31, 1870, and so became a law, and was, therefore, the
first law for the enforcement of the Fourteenth and Fif-
teenth Amendments, While it was more for the enforce-
ment of the Fifteenth Amendment, it is of importance in a
consideration of the Fourteenth Amendment since it shows
that Congress acted on the theory that the last section of the
Amendment conferred upon it the power to enforce the
Amendment, and if this was true of the Fifteenth Amend-
ment, it was equally true of the Fourteenth,

"Ibid., Appendix, p. 431.

^ Ibid., Appendix, pp. 470 and 473.

** Ibid., Appendix, p. 473.

=• Ibid., p. 3809.

" Ibid., p. ^"

224 Adoption of the Fourteenth Amendment.

Section eighteen of the bill declared that the Civil Rights
Bill of 1866 was thereby reenacted — no doubt to give valid-
ity to it, though it is strange that no reference was made
as to this purpose.

At the third session of the forty-first Congress, efforts were
made as during the other sessions, to secure legislation look-
ing to the enforcement of the Amendments, and especially
of the Fourteenth and Fifteenth. The Judiciary Committee
seems to have been hostile to most of the bills introduced,
for nearly every one that was reported back, was either ad-
versely reported or indefinitely postponed. The resolution
(S. R. No. 715) introduced by Mr. Sawyer at the previous
session was so reported and indefinitely postponed early in
the session.'^

A like fate awaited the bill introduced by Mr. Pool (S. R.
No. 871), this bill being to enforce the Fourteenth Amend-
ment and to secure the rights, privileges and immunities of
citizens of the United States.^^ These bills had been intro-
duced at the previous session but others were submitted at
this time. Mr. Sawyer presented a resolution (S. R. No.
1223) January 18, 1871, for the purpose of protecting citi-
zens against violations of their civil and political rights.^®

Not in the least deterred by the adverse report as to his
resolution of the previous session, Mr. Sumner again intro-
duced his supplementary Civil Rights Bill, January 20,
1871. This was reported adversely February 15, 1871, the
report being made by Mr. Trumbull.*''

Bills were also introduced at this session to amend the Act
of May 31, 1870, and one of these was passed. It consisted
of nineteen sections and was to amend section twenty of the
Act of 1870, and related to elections, to securing the right
of suffrage, and the purity of the ballot box, as its advocates
claimed, though Mr. Lawrence, of Ohio, declared that the
second clause of section one. Article Fourteen, authorized

"4ist Cong., 3d Sess., p. 219.

" Ibid., p. 366.

» Ibid., p. 569.

" Ibid., pp. 619 and 1263.

Congressional Interpretation of Amendment. 225

the bill.*^ The House passed the bill, February 15, 1871,
after a four hour debate by a vote of 144 to 64.*^ The
Senate debated it quite at length, passing it February 24, or
rather at 1.30 A. M. of the 25th, by a vote of 39 to 10.*'
The President gave his approval February 28, the bill thus
becoming a part of the Act of May 31, 1870.

It thus appears that the Fortieth and Forty-first Con-
gresses, while not really enacting much legislation for the en-
forcement of the Fourteenth Amendment, showed that they
held a general belief that they posessed the power. This
is shown by the number of bills introduced for that pur-
pose, by the bills which were enacted into laws, and by the
declaration of members on the floors of Congress. It is
also true that the right of Congress to enact affirmative
legislation in these instances were denied, but these declara-
tions came from the minority generally, and so from those
who had opposed the Amendments from the beginning.

If there be any doubt as to whether Congress believed it
possessed such power, that doubt is removed by the study of
the debates of, and laws enacted by, the Forty-second Con-
gress. We are no longer obliged to draw conclusions or in-
ferences as to this from the nature of bills or resolutions in-
troduced, for here we have unmistakable evidence — plain dec-
larations by members of Congress, many of whom had taken
part in the enactment of the Fourteenth Amendment. In
fact, some of the principal participants in securing the adop-
tion of that Amendment, were members of the Forty-second
Congress and were largely instrumental in the enactment of
laws for its enforcement.

On the third day of the session, March 9, 1871, Mr. Sum-
ner again brought forward his bill (S. R. No. 99), known
as the supplementary Civil Rights Bill, and to avoid another
adverse report, it was not referred to any committee.** On
March 22, following, he moved it as an amendment to Mr.

" Ibid., p. 1276.
" Ibid., p. 1285.
« Ibid., p. 1655.
" Cong. Rec, 42d Cong., ist Sess., p. 21.

226 Adoption of the Fourteenth Amendment.

Anthony's resolution limiting or restricting the business of
the session, but it was rejected.*^ The bill was referred to
the Judiciary Committee on the last day of the session, April
20. March i6, Mr. Frelinghuysen introduced a bill more
fully to enforce the Fourteenth Amendment. A bill was
introduced in the House to protect loyal citizens in the
South in their rights, persons, lil^erty, and property, and one
to secure the equal protection of the laws within the several
States.

There appears, however, to have been no intention on the
part of the House to enact any law for the enforcement of
the Amendments, since on five different occasions it voted
to adjourn by large majorities. On motion of Mr. Dawes,
March 4, 1871, the House voted to adjourn sine die by vote
of 147 to 23 ; on the 13th of March, a similar motion by him
was passed by a vote of 124 to 67; on the 15th, a similar
motion by Mr. Wheeler was adopted by a vote of 118 to 76;
on the 20th, a similar motion was carried by vote of 121 to
55 ; and on the 23d, a like motion by Mr. Farnsworth passed
by a vote of 113 to 68."

On the 23d of March, and after the motion of Mr. Farns-
worth for final adjournment had passed, a message was re-
ceived from President Grant which changed the whole aspect
of affairs. In this short message he recommended that such
legislation be enacted as would effectually secure life, liberty,
and property, and the enforcement of law in all parts of the
United States. He gave no evidence to show that such legis-
lation was necessary, merely saying that life and property
were insecure in some States and that the carrying of the
mails and the collection of the revenues were dangerous. He
also stated that it might be expedient to provide that such
legislation as might be enacted should expire at the end of
the next session of Congress. This last statement seems to
give some weight to the charges of the opposition that the
legislation was to be for political purposes.

The message was referred on the same day to a select

"Ibid., p. 225.

** Ibid., Appendix, p. 258.

Congressional Interpretation of Amendment. 227

Committee, of which Mr. Shellabarger was appointed chair-
man. Five days later, March 28, he reported from the Com-
mittee a bill to enforce the Fourteenth Amendment. The
bill consisted of five sections, the first of which made any
person, who, under color of any law, statute, custom, or regu-
lation of any State, should deprive any one of any rights,
privileges, or immunities secured by the Constitution of the
United States, liable to the party injured in any action at
law, suit in equity, or other proper proceeding for redress,
such proceeding to be prosecuted in the Federal Courts.
The same rights of appeal and remedies provided for in the
Civil Rights Bill of 1866 were to be applicable in such cases.
The second section provided that if two or more persons
conspire or combine together to do any act in violation of
the above mentioned rights or privileges, which act, if com-
mitted within a place under the sole and exclusive jurisdic-
tion of the United States, would, under the laws of the
United States, constitute the crime of either murder, man-
slaughter, mayhem, robbery, assault and battery, perjury,
subornation of perjury, criminal obstruction of legal proc-
ess, or resistance of officers in discharge of official duty,
arson, or larceny, and if one or more of the parties to the
conspiracy or combination do any act to effect the object
thereof, all the parties to the conspiracy or combination
shall be deemed guilty of a felony, and on conviction, be
liable to a penalty of not more than $10,000, or to impris-
onment for not more than ten years, or both, at the discre-
tion of the Court; but in case of murder, the penalty to be
death. The third section provided that where any portion
or class of people were deprived, by insurrection, domestic
violence, or combinations, of any of the rights or privileges
secured by the bill, and the constituted authorities of the
State should fail to protect them in these rights, either by
inability, neglect, or refusal, and should fail or neglect to
apply to the President for aid, such facts to be deemed a
denial by the State of the equal protection of the laws, to
which they were entitled under the Fourteenth Amendment.

228 Adoption of the Fourteenth Amendment.

It was declared to be the duty of the President in such cases
to employ the militia or land and naval forces of the United
States as he might deem necessary. The fourth section
stated what should be considered rebellion, and authorized
the President to suspend the writ of habeas corpus and to
declare and enforce martial law,*^

It will be seen by the brief digest of the bill given above,
that Congress was to enter upon an almost entirely new
field of legislation, and this was admitted by Mr. Shella-
barger in his opening speech, Mr. Shellabarger said that the
first section of the proposed bill was modeled upon the second
section of the Civil Rights Bill of 1866, the only difference
being that this one provided for civil remedy where the bill
of 1866 provided for criminal proceeding. The authority
for passing the bill, he asserted, was the same as that for
passing the second section of the Civil Rights Bill, but much
greater in this case since the first section of the Fourteenth
Amendment was more explicit and more complete than the
Thirteenth Amendment which was claimed as authority for
passing the bill of 1866. He claimed that the Civil Rights
Bill was constitutional, having been so decided by the Su-
preme Courts of at least three States and had also been de-
clared constitutional by Justice Swayne of the United
States Supreme Court in a case under review before the
United States Circuit Court of the district of Kentucky.
His contention was that the Fourteenth Amendment gave
Congress power to protect and defend, by direct, affirmative
legislation, those privileges and immunities which were in
their nature fundamental. Equality of legislation was
secured by the second clause of section one of the Amend-
ment, he declared, and that this meant that the law on its
face should apply equally to all. The last clause secured
equality of protection. The two clauses, placed in juxtaposi-
tion, gave Congress the power to see to it that the States
should equally protect, under equal laws, all persons within
their jurisdiction.**

*'Ibid., p. 317.

** Ibid., Appendix, pp. 67-71.

Congressional Interpretation of Amendment. 229

Mr. Kerr, who followed Mr. Shellabarger, denied that the
Fourteenth Amendment authorized such bills as the one be-
fore the House. He claimed that the privileges and immuni-
ties spoken of in that Amendment were those which belonged
to citizens of the United States, and not those of citizens of
the States. The privileges and immunities of citizens of the
United States belonged to all such citizens alike ; to man and
woman, to adult and infant, to black and white, to sane and
insane. The Fifth Amendment was inserted in the Four-
teenth Amendment in order to make it apply to the States,
and out of abundant caution only. He further held that
the first section of the Amendment would be Better enforced
by its own vigor and by judicial decisions than by Con-
gressional legislation. He thought the bill neither author-
ized nor expedient.*^ Mr. Stoughton, speaking of the bill
the day it was introduced, said that the authority conferred
upon Congress by the fifth section of Article Fourteen, was
subject to no restrictions or limitations ; that it was for Con-
gress in its discretion to determine what was appropriate
legislation, and that its decision would be binding upon every
other department of the Government.^"

Mr. Hoar, of Massachusetts, said that it had sometimes
been suggested that the Fourteenth Amendment aimed at un-
lawful acts by the state authorities, but he thought the last
clause of the first section was evidence that this was not the
case, since it would have been unnecessary if that was all that
was intended. He held that a refusal on the part of the
officers to extend the protection provided for by the first sec-
tion, e. g., if the jurors as a rule refused to do justice where
the rights of a particular class of citizens were concerned and
the State afforded no remedy, it was as much a denial of the
equal protection of the law as if the State had enacted a
statute that no verdict should be rendered in favor of that
class of citizens."*^

Mr. Beck declared that the bill was brought forward to

** Ibid., Appendix, pp. 46-50.
" Ibid., p. 322.
" Ibid., p. 334.

230 Adoption of the Fourteenth Amendment.

divert the attention of the people from the charges of cor-
ruption, class legislation, extravagance, etc., by the cry of Ku
Klux and murder.^^

Mr. Farnsworth, speaking of the bill, declared that if
there was sanction in the Fourteenth Amendment for the
/ United States to punish offences against the persons of
/ citizens of any State, there was equal sanction for Con-
^- gress to legislate as to their property also. He consid-
ered the history of the first section of the Amendment,
and denied that the Amendment reported by Mr. Bingham,
from the Committee on Reconstruction, February, 1866,
was incorporated into that section, as was claimed by Mr.
Bingham. He quoted from the speeches of Messrs. Hale,
Hotchkiss, Davis and Conkling made at that time against
it to show the opposition on the part of Republicans and
their view of what its effect would be. He also quoted
Senator Stewart as saying incidentally of it, since it was
never considered in the Senate, that there was " another
proposition of the Committee of Fifteen, which, if passed,
will obviate the necessity of passing this, and obviate the
necessity of any further Constitutional Amendment, and I
think obviate the necessity of any more state Legislatures
or conventions." He cited the fact that the Amendment,
as proposed by Mr. Bingham in February, was postponed
and never afterwards called up. Mr. Bingham here inter-
jected that he himself had made the motion to postpone and
that it was not called up from the fact that it was put in
another form. Mr. Farnsworth then quoted from the
speech of Mr. Stevens, when he reported the Amendment,
April 30, 1866, the first section of which, with the excep-
tion of the first clause, was exactly the same as now in the
Fourteenth Amendment, to show that its purpose was to
correct unjust and partial legislation discriminating against
the negro. He declared that they all knew, and especially
those of them who were members of Congress when the
Amendment was proposed, that it was proposed on account
of the unjust and discriminating legislation of the Southern

"Ibid., p. 355.

Congressional Interpretation of Amendment. 231

States. He gave it as his opinion that no Democrat had
charged at the time, as an argument against it, that it would
confer such power as was now attempted to be exercised,
but Mr. Garfield interrupted him to say that Mr. Shankling,
of Kentucky, and Mr. Rogers, of New Jersey, had stated
that it would have the effect of breaking down the barriers
of state law and state authority. It was stated that Sena-
tors Hendricks, Doolittle, Davis, of Kentucky, and others
who spoke against the Amendment, never claimed that it
would confer upon Congress power to legislate in the man-
ner now proposed. Senator Johnson, of Maryland, had
opposed the second clause on the ground that he did not
know what would be its effect.

Mr. Farnsworth admitted that he had voted for the Civil
Rights Bill of 1866, but stated that many things had been
done by Congress which could not be defended if done in
peace, and added : " We passed laws, Mr, Speaker, and the
country knows it, which we did not like to let go to the
Supreme Court for adjudication. And I am telling no
tales out of school. Since the adoption of this [Four-
teenth] Amendment, because of scruples in regard to the
constitutionality of the Civil Rights Bill we have reenacted
it." He thought, however, there was no need for overstep-
ping constitutional bounds at this time. He also denied
that the fifth section of that Amendment gave authority
for the bill, since he regarded the first section a " law unto
itself," which could be executed by the Courts. The only
legislation, in his opinion, that Congress could do was to
enforce the provisions of the Constitution upon the laws of
the States. He thought the question presented by the bill
was whether the States should be obliterated and all power
concentrated in the Central Government.^^

Mr. Bingham, who drafted the first section of the Four-
teenth Amendment with the exception of the first clause,
followed Mr. Farnsworth with a very able speech. Prob-
ably more weight should be given the utterances of Mr.
Bingham as to the interpretation of that section than to

"Ibid., Appendix, pp. 1 14-17.

232 Adoption of the Fourteenth Amendment.

those of any other, and we shall, therefore, give consider-
able attention to what he said on this occasion. It was his
belief that the last three Amendments conferred powers
upon Congress never before granted and that, under them.
Congress could enact laws for the protection of the rights
of citizens both as against the States and the individuals in
the States.

Referring to the question of Mr. Farnsworth as to why-
he had changed the form of the Amendment which he re-
ported in February to that of the first section of the Four-
teenth Amendment, he replied that he would answer it and
answer it truthfully. He stated that he had framed the
Article as reported in February, and the first section of
Article Fourteen, letter for letter and syllable for syllable,
save the clause defining citizenship. He said that the sec-
tion as it now stood in the Fourteenth Amendment was
more comprehensive than it was in the form first presented
in February, 1866; that it embraced all and more than did
the first proposition. The fifth section gave the grant of
power, and it was full and complete.

He then gave in full the Amendment as reported in
February, 1866, and referred to the fact that the motion
to lay it on the table, which was a test vote on its merits,
failed — ^the motion being lost by a vote of no to 41; that
he had consented to and voted for the motion to postpone
its further consideration until the second Tuesday of April ;
that afterwards, in the joint Committee on Reconstruction,
he had introduced the section as it now stood in the Con-
stitution. The last clause of that section meant, he de-
clared, that no State should deny to any one the equal pro-
tection of the Constitution of the United States, or any of
the rights which it guaranteed to all men, nor should it (the
State) deny to anyone any right secured to him by the laws
and treaties of the United States or of such State. The
first section was declared to be as comprehensive as " We
will sell to no man, will not deny or delay to any man right
or justice" of the Magna Charta. Mr. Bingham also
quoted from a speech of Mr. Farnsworth in advocacy of

Congressional Interpretation of Amendment. 233

the Amendment when it was before Congress to show that
the latter must have thought that it could be enforced.

He then proceeded to explain why he had changed the
form of the Amendment as first introduced in February.
He had taken counsel of Marshall in the hope that " the
Amendment might be so framed that in all the hereafter
it might be accepted by the historian of the American Con-
stitution and her Magna Charta ' as the keystone of Amer-
ican liberty.' " The decision of Marshall in Barron vs.
the Mayor and City Council of Baltimore (7 Peters, p. 250)-
induced him, he declared, to attempt to impose new limita-
tions upon the power of the States by a constitutional
Amendment. In this case the City had taken private prop-
erty for public use, without compensation, and there was no
redress for the wrong in the Supreme Court of the United
States, since this Court held that the first eight Amendments
were r^ limitations*^u]^on the power of the United States.
Somewhat later, the same Court ruled that the Amendments
did not extend to the States. This was in the Lessee of
Livingstone vs. Moore et al. (7 Peters, p. 552). He (Bing-
ham) said that Jefferson had properly described the first
eight Amendments as the American Bill of Rights. He
then mentioned the principal rights secured to the people
by those Amendments, but only secured as against the
United States and not against the States.

Mr. Bingham then stated that, while reexamining the
case of Barron, after his struggle with Congress in Febru-
ary, he had noted and apprehended as never before, certain
words ysed by Marshall in that decision. He quoted the
following words used by Marshall in reference to the first
eight Amendments : " Had the f ramers of these Amend-
ments intended them to be limitations on the powers of the
state governments, they would have imitated the framers
of the original Constitution, and have expressed that inten-
tion." He said he acted upon that suggestion and imitated
the framers of the original Constitution. Just as they had
said " No State shall emit bills of credit, pass any bill of
attainder, ex post facto law, or law impairing the obliga-

234 Adoption of the Fourteenth Amendment.

tions of contracts," so had he said, in the first section of
the Fourteenth Amendment that " No State shall make or
enforce any law," etc., imitating them to the letter. He
then added: "I hope the gentleman (Mr. Farnsworth)
now knows why I changed the form of the Amendment of
February, 1866."

He said that the privileges and immunities of citizens of
the United States, as contradistinguished from citizens of
the States, were chiefly defined in the first eight Amend-
ments, and in order to show the scope and meaning of the
first section of the Fourteenth Amendment, he gave these
Amendments in full. The principal rights secured to the
citizens by the first eight Amendments were these: free-
dom of religion, of speech, and of the press; the right
peaceably to assemble, and to petition for redress of griev-
ances; the right to keep and bear arms; the inviolability
of their homes in times of peace, in that no soldier s|;iould
be quartered in any house without the consent of the owner ;
their persons, houses, papers, and effects secured against
unreasonable searches and seizures ; not to be deprived of
life, liberty, or property without due process of law; to
have trial by jury ; to be informed of the nature and cause
of the accusations that might be made against them, and to
be confronted with the witnesses against them; excessive
bail not to be required, nor cruel and unusual punishments
inflicted.

After giving the Amendments in full, Mr. Bingham said :

" These eight Articles I have shown never were limitations

upon the power of the States, until made so by the Four-

/teenth Amendment. The words of that Amendment, 'no

/ State shall make or enforce any law which shall abridge

/ the privileges or immunities of citizens of the United

■ States,' are an express prohibition upon every State of the

, Union, which may be enforced under existing laws of Con-

V gress, and such other laws for their better enforcement as

"^XCpngress may make."

He then referred to Mr. Shellabarger's reference to the

Congressional Interpretation of Amendment. 235

decision in the case of Corfield vs. Coryell (4 Wash. Cir.
Ct. Rep'ts, p. 380), but said other and different privileges
and immunities than these were secured by the Fourteenth
Amendment, since this Amendment declared that no State
should abridge the privileges and immunities of citizens of
the United States, and that these privileges and immunities
were defined in the first eight Amendments. Before the
ratification of the Fourteenth Amendment, it was in the
power of the States to deny to any citizens the right of trial
by jury, and that it was done, he declared. Before that the
States could and did, he asserted, abridge the freedom of
the press. But since the ratification of that Amendment
the States could not do these things nor could they send
men to the penitentiary for teaching an Indian to read the
Bible, as had been done in Georgia.

/ Under the amended Constitution Congress had the power,
he asserted, to provide against the denial of rights by the
States, whether the denial was in the form of acts of omis-

^ sion or of commission. He said that citizens had been de-
nied trial by jury, had been deprived of property without
compensation, had been restricted in the freedom of the
press and of speech, and in the rights of conscience, and
they had no remedy, but that Congress could, under the
Fourteenth Amendment, provide by law against such abuses
and such denials as these whether committed by individuals
or by States. He said the Thirteenth, Fourteenth and Fif-
teenth Amendments were all negative, but that nevertheless
new limitations were imposed upon the States by them,
while, with each of them, there was coupled the grant of
power to enforce them. He referred to the Enforcement
Act of May preceding to show that Congress believed it
had the pow^r to enforce those Amendments, since an Act
to enforce one of them made it possible to pass an Act to
enforce the others. He declared that, by virtue of these
Amendments, Congress could provide by law that no man
should be tried for a criminal offence in any state court
without a fair and impartial trial by jury, but said Congress
did not possess that power before these Amendments be-

236 Adoption of the Fourteenth Amendment.

came a part of the Constitution, Congress could also pro-
vide that no one should be deprived of his property without
compensation. This was also true with regard to the free-
dom of speech, the freedom of the press, the right peace-
ably to assemble, etc., since they were of the rights of citi-
zens of the United States defined in the Constitution and
guaranteed by the Fourteenth Amendment, which Con-
gress was empowered to enforce^/ If Congress should en-
act penal laws for the protection of these rights, those vio-
lating them would have to answer for the crime, and not
the States, he asserted, since the United States punished
men, not States, for a violation of its laws.^*

The most important and valuable part of his speech, we
take it, was that giving the reason for his changing the
form of the Amendment as reported in February to that of
the first section of the Fourteenth Amendment — making it
negative instead of affirmative. Of course this includes his
statement of what he intended to accomplish by that section,
what rights and privileges he thought he was putting be-
yond the power of the States to deny or abridge, and what
limitations he intended to put upon the States as well as
what powers were being conferred upon Congress by the
first section of that Amendment. His statement that the
first eight Amendments were made applicable to the States
but corroborates that made by Senator Howard when the
Amendment was before the Senate in May, 1866, and which
statement no one questioned at the time.

Mr. Storm, of Pennsylvania, said that little attention was
given to the first section when the Amendment was before
the House, because the attention of the country was called
to the question of changing the basis of representation. He
furthermore declared that if the views now announced by
those advocating the bill had been uttered when the Amend-
ment was before Congress, it would never have been
ratified, and added : " If the monstrous doctrine now set up
as resulting from the provisions of that Fourteenth Amend-
"Ibid., Appendix, pp. 83-85.

Congressional Interpretation of Amendment. 237

ment had ever been hinted at that Amendment would have
received an emphatic rejection at the hands of the people."
He also stated that the first section was but a reenactment
of the Civil Rights Bill through superabundant caution.**'
Mr. Storm seems to have stated the question fairly, and no
doubt he was right in saying that had the people been in-
formed of what was intended by the Amendment, they would
have rejected it. But it is equally true that there were state-
ments made by men in Congress at the time to show some-
thing of what was really meant by it, but these statements
seem to have been lost sight of on account of the more stir-
ring and exciting political questions of the time.

Mr. Lowe, of Kansas, said if the first section could only
serve to abrogate or nullify the acts or legislation of the
States, then it was of little practical use, since the laws of the
States might be all right, yet the people be deprived of their
rights. He maintained that it was the intention, taking the
first and fifth sections together, to enable Congress to secure
to citizens by Federal legislation the rights guaranteed.'^'

Mr. Rice, of Illinois, held that the first section was only
a limitation upon the States, and not a grant of power to
Congress/ He criticised the bill on the ground that it gave
no classification or enumeration of the rights and privileges
sought to be protected by it. He stated that it could not
be shown that there was a denial of the equal protection of
the laws by the Constitution or laws of any State, and if
there should be, such laws or provisions of the Constitution
would be void, and that the remedy would be found in the
courts, not in Congress."*^

Mr. Biggs, of Delaware, quoted the New York Evening
Post, a Republican paper, as saying that the bill was uncon-
stitutional, and if enforced, would overthrow our whole sys-
toh of Government, and create a centralized despotism."** .

"Ibid., Appendix, p. 87.
" Ibid, p. 375-
■" Ibid., p. 396.
'* Ibid., p. 417.

238 Adoption of the Fourteenth Amendment.

Messrs. Bright, of Tennessee, and McHenry, of Kentucky,
held views similar to those of Mr. Rice.^^

Mr. Madison, in the forty-fifth number of the Federalist,
says : " The powers reserved to the several States will extend
to all the objects which, in the ordinary course of affairs,
concern the lives, liberties, and properties of the people, and
the internal order, improvement, and prosperity of the State."
Mr. Bingham quoted this passage from the Federalist in the
debate on his February Amendment, says Mr. Garfield, and
said : " These words of Madison are very significant. The
fact is that Congress has never, by official enactment in all
the past, attempted to enforce these rights of the people in
any State of the Union." (39th Cong., p. 1093.) He is
also quoted as saying that Congress did not possess the
power at that time to enforce the citizens' right to life, lib-
erty, and property in South Carolina after her state govern-
ment should be recognized and her constitutional relations
restored. Mr. Garfield also quoted Bingham's speech on
Civil Rights Bill, March 9, 1866, to the same eifect
(p. 1291). The speeches of Shellabarger and Delano on
this same bill (pp. 1291-94 and appendix, p. 158) were
quoted to show that Congress did not possess the power
to legislate in regard to life, liberty, and property. This
was before the Fourteenth Amendment had become a part
of the Constitution, and Mr. Garfield stated that the last
three Amendments had enlarged the functions of Congress
to some extent.

In discussing the first section of Article Fourteen of the
Amendment, Mr. Garfield stated that it should be borne in
mind that the debate on the pending bill would become his-
torical, since it would be the earliest legislative construction
given to that clause of the Amendment. " Not only the
words which we put into law, but what shall be said here
in the way of defining and interpreting the meaning of the
clause, may go far to settle its interpretation and its value
to the country hereafter." Mr Garfield then proceeded to
give a brief account of the history of the first section, quot-

" Ibid., pp 420 and 429.

Congressional Interpretation of Amendment. 239

ing from the speeches of Messrs. Higby, Hale, Hotchkiss,
Conkling and Bingham on the Amendment proposed by
Bingham in February to show the character of the Amend-
ment. Mr. Higby favored it, whereas Messrs. Hale, Hotch-
kiss and Conkling opposed it. He stated that the first reso-
lution was a plain, unambiguous proposition to empower
Congress to legislate directly upon all citizens in regard to
life, liberty and property. Mr. Garfield said it became evi-
dent, both to the members of the Senate and of the House,
after this debate, that it could not command a two thirds
vote of Congress, and that it was virtually withdrawn on
this account. He also gave a brief account of the first sec-
tion as introduced April 30, 1866, declaring that the inter-
pretation given to it by Mr. Stevens was followed by almost
every Republican who spoke on the measure, and that it was
generally with scarcely an exception, spoken of as a limita-
tion of the powers of the States to legislate unequally as to
life and property. He said that no Republican had made any
objection to this section similar to those made against the
former resolution, but that many had expressed their regret
that it was not sufficiently strong. He quoted from Bing-
ham's speech to show that the latter thought that the State
would have to deny the privileges or immunities of citizens
before Congress would have the power to act.

He further asserted that it would not be denied, as a mat-
ter of history, that the first section of the Fourteenth Amend-
ment received many Republican votes that the resolution of
February could not have received.

He then proceeded to compare the two, placing them in
juxtaposition, and declared that the rejected one would have
granted the power to Congress to legislate directly for the
protection of life, liberty, and property within the States,
whereas the one adopted exerted its force directly upon the
States, placing limitations upon them, and enabling Congress
to enforce those limitations. They gave Congress plenary
power over these subjects to the exclusion of the States,
whereas the other merely limited, but did not oust, the juris-
diction of the States. Unless both the history and the Ian-

240 Adoption of the Fourteenth Amendment.

giiage of the clauses, he continued, be ignored, the force and
effect of the rejected clause could not be given to the section
as it stands in the Constitution; and Mr. Shellabarger
had done this. Mr. Garfield considered the last clause of the
first section of the Amendment as the most valuable of the
section. He said it did not require the laws of the States to
be perfect, but whether unwise or unjust, they must be equal
in their provisions.

Speaking of the bill for the enforcement of the Amend-
ment, he declared that its first section was wise and salutary,
and clearly within the power of Congress. Furthermore,
that if the state laws were just and equal on their face, but
were not enforced, either by neglect or refusal, then Congress
could, by virtue of the last clause of section one of the Four-
teenth Amendment, provide for doing justice to those who
were thus denied the equal protection of the laws. His ob-
jection was to the second section of the bill, and he stated
that if it were so amended as not to assert the power of
i Congress to take jurisdiction until the equal protection was
denied, and not, in any way, to assume the original jurisdic-
tion of the rights of private persons and of property within
the States, he would heartily support it. He was not opposed
to a proper bill, he declared, but felt -bound to enter his pro-
test against a dangerous and unwarranted interpretation of
the recent Amendments. Mr. Shellabarger inquired how the
Enforcement Act of May, 1870, could be regarded as consti-
tutional under his interpretation of the Amendment, since the
Fifteenth Amendment was also a negation upon the power of
the States. To this Mr. Garfield replied that the provision in
the old Constitution in regard to election of Representatives,
together with the Fifteenth Amendment, authorized it.''** It
seems that this reply was hardly sufficient, and one feels that
Mr. Shellabarger's veiled suggestion of the illogical position
of Mr. Garfield, after having voted for the Enforcement Act
of 1870, was perfectly warranted.

Mr. Cox, of New York, took the position that the Amend-
ment had to do only with the actions of the States, and since

"Ibid., Appendix, pp. 150-54.

Congressional Interpretation of Amendment. 241

no State had abridged the privileges of citizens, the bill was
not a proper one."^ Mr. Coburn, of Indiana, held that
affirmative action or legislation on the part of the State was
not necessary to authorize the bill, since the failure of the
State to see to it that every one was protected in his rights
was just as flagrant as a positive denial of protection.*'^

Mr. Holman, of Indiana, maintained that the fifth section
of the Fourteenth Amendment had reference only to the sec-
ond and third sections of that Amendment, and did not apply
at all to the first section. He also contended that if the limi-
tations or denials of the power of the States in the first sec-
tion were to be construed as conferring legislative power on
Congress, then there was no limit to the power of Congress
in respect to the domestic afifairs of the States. This was also
manifest, he said, from the fact that the advocates of the bill
did not seem to recognize any such limit and had not
attempted to define the limit or boundary between federal
and state jurisdiction.^^ Mr. Golladay, of Tennessee, took
a position similar to that of Mr. Holman in regard to the
effect and application of the fifth section, and declared that,
if the powers claimed in debate were once conceded to Con-
gress, there would be no further need of state constitutions,
the Central Government becoming supreme in every imagin-
able case, from the pettiest police regulation to the loftiest
questions of state.^*

Mr. Dawes, of Massachusetts, who was a member of Con-
gress when the Fourteenth Amendment was submitted to the
States, said that the rights, privileges, and immunities sought
to be protected by the bill were those which were found in the
original Constitution, and in the Amendments, including the
Thirteenth and Fifteenth Amendments, thus making the first
section of Article Fourteen include all these rights and privi-
leges. He enumerated the rights secured by the first eight
Amendments and by the last three Amendments, thus leav-

" Ibid., p. 455.
«* Ibid., p. 459-

''Ibid., Appendix, pp. 259-60.
"Ibid., Appendix, p. 160.
16

242 Adoption of the Fourteenth Amendment.

ing no room for doubt as to what he meant. He maintained
that Congress had the power to guard, protect and enforce
all the rights which he had enumerated, and that this could
be done, either by giving any citizen, whose rights or privi-
leges were denied or abridged, a civil remedy in the Federal
Court for any damage sustained; or by the indictment
and punishment of any offender who should " invade, trench
upon, or otherwise impair any right, privilege, or immunity
of any citizen." *°

Mr. Wilson, of Indiana, held almost the same view as
that of Mr. Dawes regarding the power of Congress to
secure the rights and privileges of citizens; saying that the
last clause of the first section of Article Fourteen was equiva-
lent to " no State shall fail or refuse to provide for the equal
protection of the laws to all persons within its jurisdiction."
He also held that Congress was made the exclusive judge as
to the necessity for congressional legislation. The substance
of his views are as follows :

1. The last clause of section one meant that equal protec-
tion should be provided.

2. The failure to enact proper laws or to enforce them was
a denial of such equal protection.

3. Congress possessed the power to enact laws to secure
equal protection where such was the case.

4. Congress was the sole judge as to the necessity of leg-
islation as well as to the remedies necessary to be applied.®*

Mr. T)mer, of Indiana, said that the obligation imposed
on Congress to see that equal protection was not denied to
any one was all the justification he wanted for supporting the
bill.®^ Mr. Lansing, of New York, believed the grants of
power given by the recent constitutional Amendment were in
vain unless Congress could carry them into effect by appro-
priate legislation.^^ Mr. Willard, of Vermont, held that the
Amendment was intended only to secure an equality of rights

" Ibid., pp. 475-77.

* Ibid, pp. 481-83.
" Ibid., p. 487.

* Ibid., p. 487.

Congressional Interpretation of Amendment. 243

and immunities, and that only a denial of that equality could
be made punishable by United States laws, though he be-
lieved that anything secured to citizens by that Amendment
could be enforced by the laws of the United States. He
admitted that the difference between himself and some of the
others was as to the meaning of the Amendment, and not as
to the power which might be used to enforce it. He consid-
ered the rights and privileges mentioned in the case of Cor-
field vs. Coryell and those enumerated in the Civil Rights
Bill of 1866 to be those of citizens of the United States,
and so could be secured by Congress. He did not think
the Amendment accomplished very much, however, and
stated that the Fourteenth Amendment did not modify or
change the previous Constitution in any way.^^

Mr. Burchard, of Illinois, said he believed the law of May,
1870, secured all the rights and privileges secured by the
Constitution, but was willing to vote for a bill to give them
greater efficiency if those enactments — the bill of 1870 and
Civil Rights Bill of 1866 which was reenacted by section
eighteen of the Act of 1870 — were not sufficient. He held
that the clause of the Amendment defining citizenship did
not enlarge the rights and privileges belonging to citizens,
but merely increased the number of those who might enjoy
them. He stated that some of these privileges and immu-
nities were enumerated in the Civil Rights Bill passed by
the same Congress which proposed the Amendment. He
did not see how the application of the first eight Amend-
ments to the States could be held to confer upon the Fed-
eral Courts the right to punish for murder or other offenses
against life and person. He held that the deprivation of
any of the rights or the denial of the equal protection of
the laws must be by the State through its officers, nor was
it ever enjoined on the State, in his opinion, to provide
protection, but that it should not discriminate in its protec-
tion, either by the legislative, executive, or judicial depart-
ments. He said the debates on the Amendment showed
that it was not intended to confer on Congress the power

" Ibid., Appendix, pp. 188-89.

244 Adoption of the Fourteenth Amendment.

to pass affirmative legislation to enforce its provision upon
private individuals. He thought, however, that the Gen-
eral Government had the power to punish state officers who
willfully and wrongfully made or enforced unconstitutional
laws of the State or who neglected the duties enforced
upon them by the Constitution of the United States. He
even thought that the attempts of individuals to prevent
such officers from performing their duties could be pun-
ished by the United States.'^"

Mr. Poland, of Vermont, who was a member of the Senate
when the Amendment was proposed, said he did not believe
it gave Congress the power to go into the States and legislate
for the punishment of ordinary offences against persons and
property, this power being left with the States, and that even
if the States should fail to punish a crime committed within
its borders. Congress could not provide a law for punishing it.
But he held that if a State denied the equal protection of the
laws, or if proper laws were not enforced, or if any one
attempted to prevent the officers from carrying out the laws,
then Congress could provide for the punishment of such an
offence. He approved of Mr. Farnsworth's general propo-
sition in regard to the powers of Congress under the Consti-
tution.'^^ He, however, as well as Messrs. Farnsworth, Gar-
field and others, who contended that Congress did not have
the power to enact affirmative legislation applicable to indi-
viduals, must have thought that the bill did not do this, for
they voted for it. In fact Mr. Garfield's objection was not
to the first section, but to the second, and, as it was amended
in some respects, he supported it.'^^

The bill, after a debate of nine days, on four of which

evening sessions were held, passed the House, April 6,

1871, by a strict party vote of one hundred and eighteen

^to ninety-one, with only eighteen not voting. Of the one

" Ibid., Appendix, pp. 313-15.

"Ibid., p. 514.
Ibid., p. 518. The Democrats had voted, July 11, 1870, and
again at this session, said Mr. Shellabarger, that the Fourteenth
Amendment was not a part of the Constitution. Thirty-two had so
voted in 1870, and seventy-five in 1871.

Congressional Interpretation of Amendment. 245

hundred and eighteen voting for the bill, fifteen, some of
whom were the strongest men in the Republican party,
had been members of Congress when the Fourteenth
Amendment was proposed, Messrs. Dawes, Bingham, Shel-
labarger and Garfield being among the number. Mr.
Blaine was speaker, and so did not vote, though no doubt
he was in favor of the bill. Two others who were members
of the Thirty-ninth Congress were absent, but were prob-
ably in favor of the bill.^^

The Senate had been debating a resolution introduced by
Mr. Sherman, directing the Committee on the Judiciary to
report a bill for the suppression of violence in the South,
and in an indirect way the question of the power of Con-
gress to enact such legislation was involved. Speaking on
this topic, April 3, 1871, Senator Blair, of Maryland, said
that the Fourteenth Amendment as claimed by its advocates
at the time it was proposed did not confer citizenship, but
merely defined it as it had existed from the beginning. He
cited the debates which took place on it to show that the
purpose of the first section was to prevent the repeal of the
Civil Rights Bill of 1866, and that both the Civil Rights
Bill and the Fourteenth Amendment were directed against
discriminating state laws. He maintained that the claim
of those who advocated the proposed action was in efifect
that the Amendment had abolished the state governments,
permitting them to subsist by sufferance only.'^*

Mr. Morton, of Indiana, speaking the next day on the
same subject, declared that the last clause of the first sec-
tion made a failure to secure the equal protection of the
laws equivalent to a denial, whether this failure was willful
or merely the result of inability, and was, in fact, the same
as if it read : " Every person in the United States shall be
entitled to the equal protection of the laws." It was thus
an affirmative provision by its nature, and not simply a
negative on the power of the States. He said that the
Government could act only upon individuals, and not upon

'^Ibid., p. 522.

"Ibid., Appendix, p. 117.

246 Adoption of the Fourteenth Amendment.

States, so that any legislation that Congress might enact
must operate upon individuals. This principle was recog-
nized by Congress, he continued, in the act passed the year
previous for the enforcement of the Fifteenth Amendment,
and since the Fourteenth Amendment was in form similar
to the Fifteenth, the same principle applied here/°

Mr, Frelinghuysen, of New Jersey, declared that the
change wrought in the fundamental law by the Fourteenth
Amendment was a most important one, and that there was
danger, if its words were followed, that the change would
be carried too far for the real interests of the country. He
declared that it secured much more than " equality " be-
tween whites and blacks, and quoted from the decision of
the Circuit Court of the United States for the district of
Louisiana, June, 1870 (i Abbott, p. 338, Slaughter House
Cases) to show that the Court held that the privileges and
immunities of all citizens should be absolutely unabridged
and unimpaired. The Court said that the main object may
have been to remedy one particular phase of social and
political wrong, but that it bore a broader meaning and
reached social evils never before prohibited by constitu-
tional enactment, and that it was to be presumed that
people knew what they were doing when they gave their
imprimatur to it, and meant to decree what had, in fact,
been decreed. Mr. Frelinghuysen regarded the " pursuit
of happiness " as the most comprehensive privilege of the
citizen. He said the privileges and immunities of Ameri-
can citizens were to be found in the Declaration of Inde-
pendence, and that they were further defined in Corfield
vs. Coryell. He, like Mr. Morton, said that the United
States could deal only with individuals and not with States,
and so could deal only with offenders who violated these
privileges, and not with the States or their officials, to com-
pel proper legislation or enforcement. He did not think it
expedient to carry the enforcement of the Amendment to
the extent of making the criminal code of the United States
include all offenses that affect life, liberty and property,

"Ibid., Appendix, p. 251.

Congressional Interpretation of Amendment. 247

since this would make it too comprehensive, though he
thought that it would be constitutional to do so, but not
expedient or proper at that timeJ^

Mr. Pratt, of Indiana, regarded the Bill of 1866 as a
proper one under the Thirteenth Amendment, . and held
that the means employed to effect the deprivation of the
rights secured by the bill, might in law be an assault and
battery, or mere misdemeanors ordinarily punishable exclu-
sively in the state courts, but they became . offenses against
the United States if they related to the class of persons
referred to in the Amendment and whose rights were in-
tended to be secured by the Civil Rights Bill. He held also
that the provisions of the Fourteenth Amendment were more
than limitations upon the States, but that they were positive
guarantees by the United States that the privileges and
immunities referred to therein as well as the equal protec-
tion of the laws should be enjoyed. He said that any legis-
lation that was necessary to secure the enjoyment of the
civil and political rights secured by the Fourteenth and
Fifteenth Amendments, without let, hindrance, or molesta-
tion, was constitutional and that the specific power to legis-
late was granted. He declared that the negroes could not
only contract, hold property, sue, give evidence, sit upon
juries, but were eligible to every office, judicial, legislative,
or executive, subject to no disability except such as crime
imposes. He held views similar to those expressed by
Messrs. Morton and Frelinghuysen as to whom the legisla-
tion of Congress should apply. He cited the act of May,
1870, as a precedent.'^'^

The bill as passed by the House was referred to the
Judiciary Committee of the Senate, Friday, April 7, 1871,
and reported back the Monday following, but not consid-
ered until the next day, April 11. Mr. Stockton, of New
Jersey, took the position that the Enforcement Bill was
unconstitutional in that Congress could not authorize the
President or any one to deprive a person of life, liberty,

"Ibid., pp. 499-501.
"Ibid., pp. S04-6.

248 Adoption of the Fourteenth Amendment.

or property without due process of law, or put him twice
in jeopardy for the same offense. The Fourteenth Amend-
ment did not authorize the violation of the absolute and
express restrictions contained in the Constitution, he de-
clared, because it prohibited the States from doing what
Congress had always been prohibited from doing. The
construction of the Amendment necessary to make the En-
forcement Bill constitutional, he continued, would be that
because no State could deny any of the privileges of citi-
zens, Congress might; "or, in other words, the denial of
the power to a State confers it on Congress." The general
statements made in his speech are sufficient, it seems, to
warrant the statement that he thought the Amendment had
made the first eight Amendments applicable to the States —
or at least the Fifth Amendment. In referring to the lat-
ter, he said: "It is manifestly absurd to call this a grant
of power to the States. This was a prohibition to the
United States, as the Fourteenth Amendment is to the
States, and the power to enforce was a matter of course."
In closing, he said : " Mr. President, I lay my hands on
this Bill of Rights, and, in the name of my constituents, I
* do claim, demand, and insist upon all and singular the
premises as their undoubted rights and liberties ' ; the true,
ancient and indubitable rights of the people of this
country." ''^

Mr. Trumbull, discussing the bill, maintained that the
Amendment had not extended the rights and privileges of
citizenship one iota, and that the National Government was
not founded for the purpose of protecting the individual in
his rights of person and property. At this point, Mr.
Carpenter, of Wisconsin, interjected that he understood
that the Fourteenth Amendment had wrought that very
, change, and that it was " now put in that aspect and does
, protect them." To this Mr. Trumbull replied : " Then it
would be an annihilation entirely of the States. Such is
not the Fourteenth Amendment. The States were, and
are now, the depositories of the rights of the individual

"Ibid., pp. 572-74-

Congressional Interpretation of Amendment. 249

against encroachment." He had no objection, he declared,
to a law which would protect a person against " any laws
that deprive him of life, liberty, or property, except by the
judgment of his peers or the law of the land." ''^.

The bill passed the Senate, with amendments, on April
14, 1 87 1, by a vote of forty-five to nineteen,^" Trumbull and
Schurz voting with the Democrats. The final vote in the
House, April 19, was ninety-three to seventy-four, with
sixty-three absentees,^^ while in the Senate it was thirty-
six to thirteen with twenty-one absentees.*^ — ._ ^ ,--^

The action of the special session of the Forty-second Con-
gress on the above measure is very important as to the
interpretation of the Fourteenth Amendment by the legis-
lative department, and special weight must be given to the
declarations of those who were members of Congress when
that Amendment was proposed. Mr. Garfield's statement
that the interpretation put upon that Amendment by Con-
gress would become historical and of great importance in
determining its future interpretation and value to the coun-
try has not been accepted by the Courts, but he was correct
so far as the historical and political student is concerned,
for the debates on this bill furnish the best evidence and
material, except the debates on the Amendment itself, as to
what was really intended by the Amendment. While this
bill did not go to the extent to which Mr. Sumner and
others would have liked, nevertheless it involved the impor-
tant and fundamental fact that Congress thought and de-
clared, both by the debates and by the bill itself, that it was
given affirmative power of legislation by the Fourteenth
Amendment. Without this principle, the later Civil Rights
Bill would never have been passed, and although the latter
went further in declaring some of the specific rights and
immunities, the principle was the same, and so far as con-
stitutional power is concerned, there was no difference.

This was the status of affairs when Congress assembled

™ Ibid., pp. =^76-79.
*" Ibid., p. 709.
" Ibid., p. 808.
*» Ibid., p. 831.

250 Adoption of the Fourteenth Amendment.

for its regular session in December, 1871. Mr. Sumner
had been waiting for an opportunity to get his Civil Rights
Bill before the Senate, and when the Amnesty Bill, which
passed the House, was before the Senate, he moved it as
an amendment to that bill December 20, 1871. This was
the same bill which had been adversely reported in 1870 and
1 87 1. He maintained that hotels, public conveyances and
schools were legal institutions, and should be opened
equally to all. The first section of his amendment to the
Amnesty Bill provided that all, without distinction of race,
color, or previous condition of servitude, should be entitled
to an equal and impartial enjoyment of any accommodation
or privilege furnished by common carriers, innkeepers,
owners, managers, or lessees of theaters or the places of
public amusement, public school officials (the schools being
either supported or authorized by law), trustees and officers
of churches, cemetery associations, and benevolent institu-
tions, incorporated by national or state authority. The
next section provided penalties for the violation of the
above section, the one aggrieved to receive $500, and the
one offending also to be subject to a fine of not less than
$500 nor more than $1,000, and imprisoned not less than
thirty days nor more than one year. The third section
made sections three, four, five, seven and ten, of the Civil
Rights Bill of April 9, 1866, a part of this bill. The fourth
section provided that no one should be disqualified from
jury service in any court by reason of race, color, or pre-
vious condition of servitude. Any official who should ex-
clude or fail to summon any person for that reason was
made subject to a fine of not less than $1,000 nor more than
$5,000. The bill also provided that every law, statute,
regulation, or custom which was inconsistent with it or
which discriminated in any way by the use of the word
"white," was thereby repealed and annulled.*'

Speaking of this amendment of Mr. Sumner's the next
day, Mr. Sawyer, one of the Senators from South Carolina,
stated that as long as the Constitution remained as it then

" Cong. Record, 42d Cong., 2d Sess., p. 244.

[

Congressional Interpretation of Amendment. 251

was, every citizen was entitled to the same rights and privi-
leges as every other citizen. He did not approve, however,
of the bill being tacked on to the Amnesty Bill.^* He re-
asserted his position when the measure was again before
the Senate after the holidays, on January 22, 1872, stating
that Sumner's bill was for securing more thoroughly to the
negroes their constitutional rights.®''

Mr. Thurman, one of the most prominent members of
the minority and later Vice-President of the United States,
declared that the bill was unconstitutional from the fact
that th(e States had neither made nor enforced any law
depriving any one of their privileges, and that Congress
could not act until a State had done one or the other.*^
Only a week before this time, January 15, 1872, Mr.
Sumner had stated that this bill was on the same footing
as the Civil Rights Bill, being but the complement of that
bill. Without this complementary bill, the former was im-
perfect, he declared.®^

Mr. Morton, in reply to his colleague, Mr. Thurman, took
the position that the bill was constitutional. He pointed
out, furthermore, that Mr. Thurman had not denied that
the privileges enumerated in the bill belonged to citizens of
the United States, but only that Congress was powerless to
interfere unless a State had attempted by legislation, or by
the enforcement of some principle of the common law, to
deny to some one the exercise and enjoyment of those privi-
leges. In reply to this, Mr. Thurman contended that the
Federal Government could not interfere at all until the de-
nial or abridgment of the privilege had taken place. He said,
however, that Congress might pass a law in anticipation of
such denial or abridgment, but that it would remain wholly
suspended in its operation until the case provided for in
the Constitution had happened. Mr. Morton said that by
the tacit admission that the privileges stated in the bill were
privileges of citizens of the United States as such, Mr.

"Ibid., p. 273.

« Ibid., p. 488.

" Ibid., p. 496.

" Ibid., p. 383.

252 Adoption of the Fourteenth Amendment.

Thurman had given up his whole argument. Continuing his
argument he added : " If the Constitution of the United
States confers a right, the enforcement or protection of
that right belongs to the Government of the United States.
Will that position be denied? The Senator (Mr. Thurman)
will not deny that wherever there is a right, a privilege, or
an immunity that flows from the Constitution of the United
States, it is within the province of the Government of the
United States to protect the enjoyment of that right. If the
things intended to be secured by this bill flow from United
States citizenship, if a man has them because he is a citizen
of the United States, from that fact and from that principle
of law, then it follows that the protection of those privileges
belongs to the Government of the United States. The con-
clusion cannot be resisted for a moment." Mr. Morton
furthermore said that Mr. Thurman seemed to be imbued
with the idea that the Fourteenth Amendment had given new
privileges and immunities to citizens of the United States,
which was not the case, for it merely declared who should
be citizens, and that no State should abridge or deny the
privileges or immunities of citizens which had existed be-
fore. Mr, Thurman thought that the proper way was for
the case to be brought before the Courts when any one
claimed that he was deprived of some privilege or immunity,
since the Courts were empowered to declare null and void
any law or act which was in violation of the Constitution.
If Congress had authority to legislate on any subject that
affected the privileges, immunities, life, liberty, or property
of citizens, continued Mr. Thurman, then all local self-gov-
ernment was at an end, since the Federal Government would
swallow up the state governments, and added : " I protest
against any such interpretation."^^
y^ Mr. Lot M. Morrill, of Maine, who, it will be remembered,
was charged with violating his pledge at the time Mr. Stock-
ton, of New Jersey, was unseated in order to secure the
passage of the Civil Rights Bill over the President's veto,
opposed the bill on the ground that the Federal Government

"Ibid., pp. 524-27.

Congressional Interpretation of Amendment. 253

had no right to take cognizance of matters of education,
worship, amusement, recreation, etc., which entered so essen-
tially into the private life of the peoplejy " I maintain," he
declared, " that the bill of the Senator from Massachusetts
clearly and manifestly undertakes to regulate these personal,
social, religious, domiciliary rights of the people of the
States; that it is without warrant in the Constitution."
These matters belonged exclusively to the States was his
opinion.*® On the same day, but after Mr. Sumner had
replied to his speech, Mr. Morrill said that the Judiciary
Committee had reported the bill adversely on constitutional
grounds, but modified this when Mr. Edmunds stated that
his understanding was that it was because it was deemed
unnecessary. No written report was made, and Senators
may have voted against it, for different reasons according
to the statement of Mr. Edmunds.^"

Mr. Carpenter, of Wisconsin, one of the ablest men
in the Senate, declared that he doubted whether Congress
could legislate as to churches, being prohibited from doing
so by the First Amendment. He was also of the opinion
that Congress could not legislate as to jurors in state courts,
but that the Federal Courts could not refuse to receive negro
jurors on account of race or color. The significant part of
his speech, however, is the following declaration : " There
is no provision of the Constitution, that I am aware of,
except in the Fourteenth Amendment, which prevents a
State from passing a law that no colored citizen shall be ad-
mitted to practice law, or be allowed to preach the gospel, or
to teach in the schools, or to embark in any other honorable
vocation or pursuit of life. Up to the adoption of that
Amendment, it was in the power of the States, subject only
to their own Constitutions to say what persons should par-
ticipate in the various pursuits of life." He also took the
position that negroes could not legally be excluded from
the common schools supported by public taxation, and ap-

°* Ibid., Appendix, pp. 1-5.
" Ibid., p. 731-

254 Adoption of the Fourteenth Amendment.

proved the main purposes of Sumner's bill with the excep-
tions noted above .®^

Mr. Davis, of Kentucky, one of the bitterest opponents
of the. Radicals, and himself an extremist, admitted Mr.
Carpenter's statement as to permitting negroes to practice
law, etc., but held that the proper remedy was to be found
in the Courts. He held of course that Sumner's bill was
unconstitutional.'^

Mr. Norwood, of Georgia, on February 5, 1872, declared
that section five of the bill would repeal all laws of the
States which discriminated as between the races, and that
Sumner, who had been professor of law and in the Senate
for twenty years, knew the force and effect of the words in
that section. As to the effect of the bill, he said: "It is
nothing more nor less than this : that in any and every State
where there is a statute or a law, whether it be statute or not,
which inhibits marriages between whites and blacks, this sec-
tion strikes that statute or that law to the ground. Every
such statute on those books [of the State] , from the time this
bill, if constitutional, is passed, will cease to be in force ; it
will be absolutely void by reason of the predominance of acts
of Congress over any state legislation. Can there be any
doubt of this? I have read this clause carefully; I have
called the attention of several Senators to this provision, and
I have met with no one yet who does not agree with me that
the effect of passing this law would abolish every state law
which inhibits marriage between whites and blacks." ^^ Mr.
Norwood, however, did not think the bill constitutional, but
raised this objection to it anyway. Mr. Sumner at no time
contradicted the statement made by Mr. Norwood as to the
effect of his bill on the marriage laws of the States.

Mr. Mortop, of Indiana, thought that section four of Mr.
Sumner's bill, which had been omitted in the substitute
offered by Mr. Carpenter, was a proper subject for legislation
liy Congress. He admitted that the States had the right to

•^Ibid., pp. 760-63.
" Ibid., p. 764.
" Ibid., p. 819.

Congressional Interpretation of Amendment. 255

fix the general qualifications for jurors, but denied that they
could, under the Fourteenth Amendment, exclude any one
from the jury on account of race or color. He placed the
right to be a juror on the same ground as that to be a wit-
ness. Mr. Carpenter regarded the right to be a juror as
a political right, and not an inherent privilege like testify-
ing, for if it were, then women could be jurors since they
were allowed to be witnesses. He stated, however, that he
would vote for the section although believing it unconsti-
tutional.''*

Mr. Thurman, to whom reference has already been made,
practically said, February 6, 1872, that the privileges and
immunities of which citizens of the United States could not
be deprived were to be found in the Constitution. He then
enumerated those in the original Constitution, such as habeas
corpus, bill of attainder, etc., after which he quoted the first
eight Amendments as recognizing the other rights and privi-
leges which belonged to citizens. He declared that the
power of the Government was commensurate with the
rights of the citizens of the United States, and that the Gov-
ernment had the power to protect those rights in the mode
provided by the Constitution, namely, by the judicial power.
He said there was no provision in the Constitution which
gave any one a right to sit on a jury in a state court, nor
was there any power there to compel all children to attend
the same school, since there could be separate schools for the
races or sexes.®"* The significant thing in his speech was,
what was the virtual statement that the first eight Amend-
ments were made applicable to the States by the Fourteenth
Amendment. This was the first direct, or what may be con-
sidered a direct, statement of that belief by one of the
minority. Mr. Sherman, who usually took a very active part
and whose influence was great, thought that the rights
enumerated in Mr. Sumner's Bill were to be found in the
common law and in the Constitution. He took issue with
Mr. Morrill, who had declared that the Fourteenth Amend-

**Ibid., pp. 820-26.

"Ibid., Appendix, pp. 25-7.

256 Adoption of the Fourteenth Amendment.

ment had not enlarged the scope of the old Constitution.
Even the first Amendments to the Constitution did not con-
tain all the rights of citizens, declared Mr. Sherman, for the
common law was the great reservoir of those rights. All
those rights, found in the Constitution and in the common
law, were guaranteed by the Fourteenth Amendment, was his
contention. To prevent any one from going to common
schools, from visiting an inn, from enjoying the rights of a
common carrier, etc., was in his opinion, an abridgment of his
rights as secured by section one of Article Fourteen.

He answered the statement of Mr. Morrill that the Four
teenth Amendment was but a reiteration of section two o
Article Four of the Constitution by saying that the old pro-
vision could not be enforced, while section five of Article,
Fourteen expressly gave the power to enforce it. Mr. Sher-
man also held that the right of trial by jury was a right
which could not be taken away, since the adoption of that
Amendment.®® In other words, he thought that the first
eight Amendments were made binding on the States by the
adoption of the Fourteenth Amendment. It may be re-
marked here that Mr. Sherman had taken an active part
when that Amendment was before Congress.
. ' Mr. Morton stated, shortly after Mr. Thurman's speech,
that " protection," as used in the last clause of the first sec-
tion of Article Fourteen, meant or was equivalent to the
equal " benefit of the law," and that it was intended to pro-
mote equality in the States and referred to the laws of the
States. The object of the Amendment was, he declared,
" to strike at all class legislation — to provide that laws must
be general in their effects.""^

" Ibid., pp. 843-45. Mr. Carpenter reminded Mr. Sherman that the
right to trial by jury as g^uaranteed by the Fifth Amendment ap-
plied only to Federal Courts, but Mr. Sherman replied : " Yes, sir ;
the right to be tried by an impartial jury is one of the privileges
included in the Fourteenth Amendment; and no State can deprive
any one by a state law of this impartial trial by jury. . . . What-
ever distinctions were drawn before the adoption of the recent
Amendments, here is this last voice of the public will which we are
bound to obey, which declares that every man shall have the pro-
tection of this immunity and privilege."

" Ibid., p. 847.

Congressional Interpretation of Amendment. 257

Mr. Ferry, of Connecticut, opposed the bill because he
thought it would be fatal to the Amnesty Bill, to which it
had been offered as an amendment, and which he was very
anxious to have passed. He seemed to doubt its constitu-
tionality, however, and was opposed to it for other reasons,
for, in his judgment, it struck " down the very bulwarks of
civil rights throughout the whole country. It t kes away
the foundation principle upon which our Federal system rests
by striking at the principle of local self-government the most
vital blow that it has received since the foundation of the
Government."®^

Mr. Norwood, of Georgia, called Mr. Sumner's attention
to the effect of his bill on laws which inhibited the marriage
of persons of different races. Mr. Sumner admitted that it
would annul those laws and all laws which discriminated on
account of color, such laws being offshoots of slavery, and
not proper to remain.®*

Mr. Ferry reiterated his objections to the bill, February 8,
declaring that it was " fatal to the rights of the people of the
States as citizens of the States," and that it tended " directly
to consolidate all authority in this nation into one imperial
government." Upon the theory that it was necessary to give
all citizens the equal protection of the laws and to secure
them in the right of life, liberty and property, he declared
that Congress could " go into every city, town, borough and
hamlet in the United States and enact ordinary police laws,
and put a Federal officer to keep guard over the streets."^"**

Mr. Edmunds, of Vermont, who had entered the Senate as
the successor of Mr. Foote, in time to hear the debate on the
Fourteenth Amendment, and to vote for it, took the position
that the Amendment had been adopted for a purpose, and
that this purpose was to broaden in some way the national
rights of citizens. He asked those who opposed the inter-

•* Ibid., p. 870.
* Ibid., p. 872.
"^ Ibid., pp. 892-93.

258 Adoption of the Fourteenth Amendment.

pretation of the Amendment as given by advocates of the bill
to tell why it had been adopted."^

The vote on Mr. Sumner's bill, as an amendment to the
Amnesty Bill, was twenty-eight to twenty-eight, February 9.
The Vice-President voted for it, thus attaching the amend-
ment to tlie bill. The Amnesty Bill as thus amended did not
secure the requisite two thirds, the vote being thirty-three to /
nineteen.^"^

When another Amnesty Bill was before the Senate in the
May following, Mr. Sumner came forward with his bill as an
amendment. ; Mr. Sherman, speaking on the subject, May 8,
1872, stated that the amendment offered by Mr. Sumner did
not assert or affirm a right which the negroes did not already
possess, but that it merely gave additional remedy. The
rights were given by the Constitution, and especially by the
Fourteenth Amendment, but were denied in many localities,

""* Ibid., pp. 899-900. Among other things he said : " Why, sir, if
the Fourteenth Amendment to the Constitution was adopted for a
purpose, and our friends on the other side have always asserted that
it was, and they thought a very improper purpose, one which would
almost, if not quite, justify a resort to arms to repel it certainly
contained in it something that made an advance upon the old
Constitution as it respects the equality of the rights of citizens.
It was not mere waste-paper ; it was not even ' the sounding and
glittering generality' that the Declaration of Independence is said
to be; but it was a charter of rights, which was to secure
to citizens that equality of protection under the law, that equality
of right and privilege which belongs to citizenship in its truest and
highest sense." After referring to the Civil Rights Bill of 1866,
he asked: "What have we done since? Will any one rise in his
place and say that in the place of that, we have taken the pains by
a solemn act of three fourths of the States to adopt the Fourteenth
Amendment without any reason for it, without any occasion for
it, without its being in fact as it was intentionally designed, calcu-
lated and effective to accomplish a change in the National Consti-
tution, and to broaden in some degree and in some way the national
rights of citizens, and to protect to some extent and under some
power the rights which citizens ought to be protected in? No man
can deny it. What, then, is it that we have done? If we have not
by the Fourteenth Amendment accomplished something in declaring
that the privileges and immunities of citizens shall be sacred every-
where, and the national power shall protect them, what have we
done? If it is not a privilege and immunity of a citizen, being
otherwise equal and otherwise qualified, to stand on an equality
irrespective of color, what is a privilege and immunity of citizen-
ship upon which you can stand?"

"* Ibid., pp. 919-29.

Congressional Interpretation of Amendment. 259

he declared. He referred to the decision of the Supreme
■'Court of Ohio, which had been made a day or two before in
which the law of Ohio providing for separate schools was
held to be constitutional. He thought the Court was right,
but he did not say that negroes could be kept out of the
schools for the whites, since, he said, separate schools might
be had in the South as a matter of convenience and assented
to by both races.^"^

Mr, Boreman, of West Virginia, opposed the Amendment
of Mr. Sumner on grounds of expediency, and not because it
was unconstitutional, declaring that he thought it inexpedient
to incorporate such propositions into the Federal law.^"*

Mr. Blair, of Missouri, an opponent of Mr. Sumner's en-
tire bill offered an amendment to permit each city, county,
or State to decide, at an election to be held for that purpose,
whether it should have mixed or separate schools. This
proposition was defeated by a vote of thirty to twenty-
three.""

Mr. Howe, while denying the contention of Mr. Blair,
that the Federal Government was a centralized oligarchy,
stated that legislative power, which Congress had not ex-
ercised before, had been conferred upon Congress by the
last three Amendments, and that one of them (the Four-
teenth) gave the authority to pass the Sumner or Civil
Rights Bill."«

Although the Civil Rights Bill was tacked on to the
Amnesty Bill by the casting vote of the President of the
Senate, we have already noted that it then received thirty-
three affirmative to nineteen negative votes, clearly demon-
strating that a great majority thought that it was constitu-
tional. Among those who voted for, or advocated the bill,
were the following, who had participated in the submission
of the Fourteenth Amendment by Congress: Messrs. An-
thony, Conkling, Ferry of Michigan, Morrill of Vermont,

"^ Ibid., pp. 3192-93.

"^ Ibid., p. 3195.

"^ Ibid., pp. 3258-62.

'"■ Ibid., p. 3259.

26o Adoption of the Fourteenth Amendment.

Pomeroy, Sherman, Sumner, Windom, Wilson, Edmunds,
Howe, Nye, Sprague, Stewart and Chandler. It is to be
remembered, however, that three of those who were active
in the passage of the Amendment opposed the Bill of Sum-
ner, viz., Messrs. Trumbull, Carpenter and Morrill, though
Mr, Carpenter's only constitutional objection was to that
part of the bill relating to the church and jurors.

Although the bill was not considered in the House, there
was introduced a resolution by Mr. Hereford, of West
Virginia, March ii, 1872, to test the sentiment of the
House. The resolution declared that it would be contrary
to the Constitution and a usurpation of power for Congress
to force mixed schools upon the States or to pass any law
interfering with churches, public carriers, or innkeepers,
such subjects of legislation belonging exclusively to the
States. The resolution was defeated by a vote of sixty-one
to eighty-four. Among those voting against the resolution
were Messrs. Bingham, Dawes, Garfield, Hoar and
Poland.^"^

Although the legislation attempted by the Forty-second
Congress, and the debates thereon, furnish very important
and valuable evidence as to the construction put upon the
Fourteenth Amendment by Congress, and especially by
those members who had taken part in its enactment, that
of the Forty-third Congress is equally, if not more,
important.

Soon after the assembling of the Forty-third Congress,
Mr. Benjamin Butler, of Massachusetts, reported from the
House Judiciary Committee, of which he was chairman,
the so-called Civil Rights Bill known as H. R. No. 796.
/ This bill provided that no person or corporation should
make any distinction as to the admission or accommodation
of any citizen of the United States on account of race, color,
or previous condition of servitude, to any public inn, place
of amusement, or entertainment for which a license was
required, stage-coach, railroad, or other public carrier,
cemetery, benevolent institution, or public school wholly or

'" Ibid., p. 1582. ~

Congressional Interpretation of Amendmefit. 261

partly supported by taxation or by endowment for public
use.^°® Speaking of this bill the next day, December 19,
1873, Mr. Butler declared that it gave no rights which did
not already exist, and that the laws of the States which
attempted to deprive any one of these rights were uncon-
■__stitutional.^°»

Mr. Beck, of Kentucky, on the same day quoted the
first ten Amendments in full, and added : " These are the
rights of a citizen of the United States which the Four-
teenth Amendment declares no State shall abridge. The
Supreme Court recognizes them, and goes on to enumerate
a few others of the same general character in the case I
quoted from. They are now secured to white and black
alike ; they were not, under the Dred Scott decision, till
the Fourteenth Amendment became a part of the Consti-
tution." ^^" This is a clear statement as to the effect of
the Fourteenth Amendment.

Mr. Roger Q. Mills, of Texas, who later represented his
State in the Senate, practically agreed with Mr. Beck, of
Kentucky, for in a speech, January 5, 1874, he took the
position that the Fourteenth Amendment protected the citi-
zens only in the rights and privileges which were conferred
by the Constitution. These rights, he declared, were funda-
mental, fixed and absolute, among which were those found
in the first Amendments to the Constitution. Those rights
and privileges which were conferrred by the State, and
/ without which they would not exist, were not fundamental,
/ he declared, and were not, therefore, included among the
rights guaranteed by the Fourteenth Amendment. The
right to go to school was not fundamental, for schools
could be closed entirely without abridging the rights of
any citizen of the United States, which could not be done
if it were a right conferred by the Constitution.^^^

^^ Forty-third Congress, ist Sess., p. 318.

^" Ibid., p. 340.

"» Ibid., p. 343.

"* Ibid., pp. 384-85- It seems worth while to quote a part of Mr.
Mills' speech. It is as follows: "From the authority of adjudged
cases it is clear that the privileges and immunities mentioned in

262 Adoption of the Fourteenth Amendment.

The following day Mr. Lawrence, of Ohio, also made a
very significant speech on the bill. After stating that it
was supplemental to the Civil Rights Bill of 1866, he quoted
the first section of the Fourteenth Amendment with the
following comment: "The object of this provision is to
make all men equal before the law. If a State permits
inequality in rights to be created or meted out by citizens
or corporations enjoying its protection, it denies the equal
protection of the laws." His interpretation of the " equal
protection " which was to be secured to every citizen was
thus contrary to the restricted meaning which was given
to it by those who opposed Federal action as well as to the
construction which was later put upon it by the Supreme
Court of the United States. His position cannot be better
stated than by his own words when he declared : " What
the State permits by its sanction, having the power to pro-
hibit, it does in effect itself." Whatever objection may be
made to the legal soundness of this dictum or to its expe-
diency, it cannot be denied that it is a cogent, forceful, and
reasonable argument. He contended, and with consider-
able show of reason, it would seem, that the word " deny "
included omission as well as commission. The State was
just as reprehensible, in his opinion, in failing to enforce

the Fourteenth Amendment are only such as are conferred by the
Constitution itself as the supreme law over all; that they are funda-
mental, such as lie beneath the very foundation of Government;
that they are fixed and absolute; and any rights, privileges and
immunities conferred by the State, and without whose grant they
could not be enjoyed, are not fundamental, and upon which its
structure is built, neither are they uniform, but their differences
are as great as the numbers of the States and as changeable as
the laws of the State. The privileges of the Constitution are
fixed as the Constitution, which is organic law established to secure
fundamental principles. These privileges are, among others, the
right to the enjoyment of life, liberty, property, and the pursuit
of happiness; the right of peaceable assemblage for all purposes
not criminal; freedom of speech, of the press, and of religion; im-
munity of one's person, home, and papers against unlawful seizure
and search; trial by jury when held to answer for crime; to be
informed of the accusation, and confronted with the accusers ; im-
munity from excessive bail, excessive fines, and cruel and un-
usual punishments, and many others, all of which are recognized
and guaranteed in the Constitution."

Congressional Interpretation of Amendment. 263

or secure equal rights, as in itself denying those rights, for
the failure to secure was in itself a denial.

He referred to the debates on the Civil Rights Bill of
1866 with frequent quotations, to show the 'doubt felt as
to the constitutionality of that bill, both among Democrats
and Republicans, and the evident purpose of the Four-
teenth Amendment to confer power upon Congress to pass
such a bill. He also quoted from the speeches made on
that Amendment, among them being Messrs. Stevens,
Finck, Broomall, Shanklin, Raymond, Bingham, Poland,
Hendricks and others.^^^ After quoting from the speeches
made in Congress at the time the Amendment was under
consideration, Mr. Lawrence said : " The debates show that
these distinct assertions of the powers to be conferred in
Congress by the Fourteenth Amendment were not contro-
verted. No one ventured to deny them. The debates on
the Thirteenth and Fifteenth Amendments are explicit in
corroborating this purpose." He also held that it was in-
credible to think that Congress, in submitting the Amend-
ment, or the people in adopting it, did not clearly and un-
mistakably intend to confer upon Congress the power now
claimed and to provide an effective remedy for the evils
(or supposed evils) which had been so fully and frequently
denounced. The fact that Congress had, on April 20,
1871, reenacted the Civil Rights Bill of 1866, had passed
the "Enforcement Bills" of 1870 and 1871, and the Ku
Klux Act of 1871, many of those voting for some or all
of these bills having voted to submit the Amendment, was
cited. All this contemporaneous construction of the
Amendment, he argued, carried more than persuasive force
as to its meaning. He also contended that the bills, to
which reference has been made, proceeded upon the idea
that if a State omitted or neglected to secure the enforce-
ment of equal rights, it denied the equal protection of the
law as used in the Fourteenth Amendment.^^^

On the same day Mr. Herndon, of Texas, in speaking

"* See chapter II above for a consideration of these speeches.
"*Ibid., pp. 412-14,

264 Adoption of the Fourteenth Amendment.

of those rights which belong to citizens of the United States
as such, enumerated those which are stated in the original
Constitution and in the first Amendments to it, and said:
" All of these and others not enumerated may be now as-
serted by a citizen of the United States, and be secured in
them by the whole power of the Government, though such
person be not a citizen of any State." ^^* Since he must
have been familiar with the decisions of the Courts, it fol-
lows that he was of the opinion that one of the effects of
the Fourteenth Amendment had been to make the Amend-
ments binding on the States. Mr. Atkins, of Tennessee,
expressed the same opinion the next day.^^^
/" No action in regard to the bill was taken during this ses-
sion of Congress.

As an illustration of what the negroes thought of the
bill, Mr, Read, of Kentucky, on May 29, 1874, read from
the resolutions of a negro meeting in Tennessee approving
it, while at the same time denouncing the laws of that State
which made it a criminal offense for negroes and whites
to intermarry and pledging themselves to raise funds to
bring the case of a negro convicted under that law before
the Supreme Court of the United States to vindicate the
rights of the colored citizens of Tennessee to the civil
rights of marriage with whomsoever they may contract
and choose." ^^*

Mr. Sumner was on hand when the Forty-third Con-
gress assembled and succeeded in presenting the first bill,
which was his cherished Civil Rights Bill supplementary
to the one passed in 1866. This was December i, 1873,
and on the next day he moved that the Senate proceed to
its consideration, stating that it was so well known that
debate would not be necessary.^" Objection was raised
to this, and the bill was referred to the Committee on the
Judiciary. The bill was in the hands of the Committee

"* Ibid., p. 420.
"* Ibid., p. 453.
m J^il' Appendix, p. 343.
Ibid., pp. 2 and 10.

Congressional Interpretation of Amendment. 265

until April 29, 1874, when Mr. Frelinghuysen, of New
Jersey, reported it back to the Senate. He asked for a
calm, impartial, and non-partisan consideration of the bill.
In reference to the bill itself, he declared that if Congress
did not have the power to pass it, the people had perpe-
trated a blunder amounting to a grim burlesque over which
the world might laugh, were it not so serious a blunder.
There was but one idea in the bill, he asserted, and that
was the " equality of races before the law.'' In considering
the inquiry whether it was a denial of equal rights to have
separate schools, Mr, Frelinghuysen cited a case which had
been decided by the Court of Iowa. That question was
directly considered in this case (24 Iowa Reports, p. 263),
he said, and the Court had declared that the school direc-
tors could not deny a child admission to any particular
school on account of race or color, nor could colored chil-
dren be required to attend separate schools provided for
them. He also cited the case which had been decided in
Ohio (21 Ohio Reports, p. 198) in which an adverse de-
cision had been given. It was pointed out that the Consti-
tutions and laws of the two States were unlike, thus ac-
counting for dissimilar decisions, but that these decisions
afforded no precedent for the construction of this bill. He
based the authority of Congress to pass the bill on the War
Amendments, but primarily and specifically on the Four-
teenth. Reference was made to the Slaughter House
Cases, to show that the Supreme Court thought the object
of that Amendment was to prevent the curtailment of the
rights of the negroes. Mr. Frelinghuysen admitted, how-
ever, that it was not one of the privileges of citizens of the
United States to have an education, visit inns, etc., but that
it was one of his privileges as such not to be discriminated
against on account of his race or color by the law of a
State relating to those subjects. He said he did not know
whether a citizen had the right to be a juror, but that he
could not be discriminated against, and that it was not
equal protection of the law to exclude a class as such.^^*

'" Ibid., pp. 3451-55.

266 Adoption of the Fourteenth Amendment.

Mr. Norwood, of Georgia, followed Mr. Frelinghuysen
with a very able speech the next day. He enumerated the
privileges which had been created by the original Constitu-
tion, after which he gave what he regarded as the privileges
and immunities of citizens of the United States. Among
the latter were those named in the original Constitution,
such as immunity from ex post facto laws, but the great
majority of them were taken from the Bill of Rights or
the early Amendments and the War Amendments. After
enumerating all these, he said : " I do not assert that these
are the privileges and immunities of a citizen of the United
States as distinguished from his rights as a citizen of a
State, but I do say that any others, whether few or many,
will be found enumerated in the Constitution of the United
States. Before the Fourteenth Amendment the first class
of privileges and immunities enumerated above belonged
to citizens of the State by operation of the Federal Consti-
tution." Then followed quotations from the minority opin-
ions in the Slaughter House Cases and the report of the
Judiciary Committee of the Senate on the petition of Susan
B. Anthony and others for the right of suffrage. Mr. Nor-
wood maintained that no new privileges were conferred by
the Fourteenth Amendment, but that additional guarantees
were. Before the adoption of that Amendment, a State
might have established a particular religion, he declared,
restricted the freedom of speech, or deprived its citizens of
any or all of the privileges enumerated in the first eight
Amendments, but the Federal Government could not. All
this was changed, he continued, for the same inhibition
which those Amendments had placed upon the Federal Gov-
ernment had been laid upon the States by the adoption of
the Fourteenth Amendment. In other words, he held
that the privileges and immunities enumerated in the first
eight Amendments had, by the Fourteenth Amendment,
been secured to every citizen against denial or abridgment
on the part of any State. To quote him again : " And as
the first eight Amendments were a prohibition on the Gen-
eral Government as to the privileges and immunities of the

Congressional Interpretation of Amendment. 267

citizens of the States named in those Amendments, so the
Fourteenth Amendment was and is a prohibition on the
States, forbidding them to abridge the same privileges and
immunities." He thought, however, that these privileges
could and should be protected and enforced just as obliga-
tions of contracts — no punishment on the States, but by
appeal to the Federal Courts.^"

Mr. Pratt, of Indiana, made the assertion that if the
negroes did not possess all the civil and political rights to an
equal degree with the whites, the people had failed to ac-
complish what they intended by the last three Amendments.^^'^

Mr. Morton, of the same State, maintained that the
Amendment secured the general proposition that all men
were placed upon the same level of equality as to the enjoy-
ment of civil rights, and that the States still retained the
power to fix the limitations in regard to suffrage, travel,
etc., with the single limitation that these rights must not
be made to depend upon a question of race or color. In
reply to the suggestion of Senator Saulsbury, of Delaware,
he admitted that theoretically, remedy could be had in the
Supreme Court of the United States for a violation of this
principle. The Court would merely hold the state law un-
constitutional, he declared, and there would be no damages
nor would there be any penalty for the one who had deprived
another of a right or privilege. The framers of the Amend-
ment, continued Mr. Morton, and he added that he knew
whereof he spoke, did not intend to leave the victim to the
roundabout costly, and therefore frequently impossible
remedy of appeal, but they intended that a violation of
the Amendment should be made a personal and criminal'
offense.^2^ In a word, his position was that the rights and
privileges enumerated In the bill were secured by the Four-
teenth Amendment, but that the bill was necessary to give
real effect to that Amendment.

Mr. Boutwell, who had been a member of the Reconstruc-

"•Ibid., Appendix, pp. 241-44.

"* Congressional Record, Forty-third Congress, ist Sess., p. 4183.

"*Ibid., Appendix, pp. 359-61.

268 Adoption of the Fourteenth Amendment.

tion Committee, and, therefore, in a position to speak au-
thoritatively, said that the first clause of the first section,
in connection with the fifth section of the Amendment, was
sufficient to warrant the bill under discussion. The sub-
stance of his argument was that the first clause created both
federal and state citizenship even against the will of the
States, and that in doing so, it practically fixed the rights
and privileges of citizens of the States as such as well as that
of citizens of the United States as such. The States, he
contended, could not make distinctions among their own
citizens, all the rights and privileges of one citizen belong-
ing to all citizens of that State, irrespective of race or color. /
At this point he said that the Supreme Court had erred int
the Slaughter House Cases in deciding that there were two
classes of rights — national and state.^^^

Mr. Stockton, of New Jersey, admitted that all citizens
were entitled to equal rights and accommodations, but he
objected to the bill on the ground that the construction as
given by Mr. Sumner, its author, made it mean the " same "
rights and accommodations, and not " equal." He thought
the negroes entitled to equal rights and privileges, but that
this did not necessarily mean that they should be admitted
to the same cars or the same schools.^^^

Mr. Howe, of Wisconsin, spoke at some length in advocacy
of the bill. His principle contention was that increased
powers had been conferred upon the Federal Government
by the War Amendments, one of these being the transfer
of the control of citizens from the States to the United
States. H this had not been accomplished, he declared, it
was because the draughtsman who framed the Fourteenth
Amendment did not know how to construct a clause which
would do it. Referring to the Slaughter House Cases, Mr.
Howe stated that he did not believe the decision in that
case denied the authority of Congress to pass this bill. As
to that part of the decision which states that there are cer-

*"Ibid., p. 41 16.
^^ Ibid., p. 4144.

Congressional Interpretation of Amendment. 269

tain privileges which belong to citizens of the United States
as such and that certain others belong to them as citizens of
the States, he stated that he felt authorized to say that this
was not the decision of the Court. It was only a part of the
argument by which Justice Miller undertook to defend the
judgment of the Court, declared Mr. Howe. Even if it
were the decision of the Court, he continued, he believed
that the American people would say, as they had said about
the Dred Scott decision, that it was not law and could not
be law. If the Fourteenth Amendment secured the protec-
tion only of such privileges and immunities as pertained
to them as citizens of the United States, then it was the
idlest piece of verbiage that could possibly be constructed,
declared the Wisconsin Senator, for that had ever been the
case. It was useless, he contended, to say that this was a
privilege, and that was not, in arguing the question of power,
for it had nothing whatever to do with it. It was all right
to discuss whether it was expedient or inexpedient to clothe
this man with this or that privilege, but when the legislative
tribunal had spoken, its discretion guided the judgment of
every one, and from its decision there was no appeal but
to the people.^^*

Mr. Stewart, of Nevada, thought the bill inexpedient as
tending to retard rather than aid the education of the
negroes, though he stated that he believed Congress had the
constitutional power to pass it.^^^ Notwithstanding the
inexpediency of the bill to his mind, Mr. Stewart voted
for it.

Mr. Sargent, of California, moved an amendment to the
first section of the bill providing that any State or school
district might be allowed to have separate schools if equal
facilities and opportunities were given. This was defeated
by a vote of 26 to 21.^-®

Mr. Carpenter stated that he would vote against the bill on
the ground that the Federal Government did not have the

^'^ Ibid., pp. 4147-51-
"^ Ibid., p. 4167.
""Ibid., p. 4167.

270 Adoption of the Fourteenth Amendment.

power to organise or regulate the juries of the States.^^^
The other provisions of the bill he evidently approved.

Mr. Sargent also offered an amendment to the effect that
all should be entitled to the advantages of the common school
system, instead of " the common schools." The purpose of
this was to permit the States to have separate schools, as was
pointed out by Mr. Edmunds and stated by Mr. Sargent.
Mr. Sargent declared that the purpose of the proposed bill
was political — to retain the negro vote. His statement
should be given more weight when it is remembered that he
was a Republican and voted for the bill on its final passage.
His amendment was rejected by a vote of 28 to 16.^^^

Mr. Edmunds, of Vermont, spoke briefly just before the
final vote was taken, his remarks being called forth by the
amendment offered by Mr. Sargent. He took the position
that the Fourteenth Amendment secured absolute equality,
and not half-equality. If Mr. Sargent's amendment was
accepted, he contended, the effect of the bill would be prac-
tically nothing, since the States already had separate schools,
cars, etc. The Fourteenth Amendment was general and
sweeping, he continued, and leveled all distinctions on
account of race or color.^^* It will be remembered that Mr.
Edmunds became a member of the Senate just four days
before the enactment of the Civil Rights Bill over the Presi-
dent's veto April 9, 1866. He was present when the Four-
teenth Amendment was before the Senate and voted for its
submission to the States.

The bill passed the Senate at 7 o'clock on the morning of
May 23, 1874, after an all night session, the Senate being in
continuous session for twenty hours. The vote was 29 to
16 in its favor, Boreman and Carpenter being the only Re-
publicans voting against it.^^° Of those voting for the bill,
the following had taken part in the enactment of the Four-
teenth Amendment: Messrs. Allison, Boutwell, Conkling,

"^ Ibid., p. 4166.
*^Ibid., pp. 4171-72.
'=» Ibid., pp. 4171-75-
"" Ibid., p. 4176.

Congressional Interpretation of Amendment. 271

Edmunds, Howe, Morrill of Vermont, Stewart, Washburne
and Windom. Messrs. Sherman, Morrill of Maine, An-
thony and Chandler were absent. Of these Mr. Morrill
was opposed to the bill. Two of these, Messrfe. Boutwell
and Conkling-, were members of the Reconstruction Commit-
tee, and the fact that those who voted for the Fourteenth
Amendment, with the exception of Messrs. Carpenter, who
opposed the bill in regard to one point only, and Morrill, of
Maine, supported the bill, must be given due weight. It
should also be remembered in this connection that Mr.
Conkling, who had at first opposed the first section of the
Amendment when offered by Mr. Bingham, February 28,
1866, now supported this bill, thereby showing that he
accepted Mr. Bingham's idea as to the purpose and effect of
that section.

After this somewhat detailed account of the persevering
efforts of Mr. Sumner in behalf of his Civil Rights Bill, of
his repeated rebuffs, and its final enactment by Congress,
though not until after his death, there seems to be but one
conclusion possible. That conclusion is that all the debates
on it, all the opinions expressed for and against it, and
especially by those who had been members of the 39th Con-
gress, strengthen the conclusion which had been reached in
the preceding chapters as to the effect and purpose of the
Amendment. Of all the evidence, only a very minor part
of it is against this conclusion, and any one who will go
through all these debates will be impressed with this fact.
Eliminating the fact, for fact it is, that the prime motive
of a majority of those who voted for the bill was political,
it remains nevertheless that they fully believed they had the
power to pass it. The main purpose of the Fourteenth
Amendment, must not be lost sight of. Underneath the
motive, and of greater importance for the purpose contem-
plated in this study, lies the question of power. Had there
been no partisanship, the bill would of course not have been
passed. It is equally true that it would not have been en-
acted had not a majority of Congress thought that the

272 Adoption of the Fourteenth Amendment.

Fourteenth Amendment authorized it, and this is the im-
portant question.

The second session of the 43d Congress met December
7, 1874. On the 1 6th of the same month Mr. Butler, of
Massachusetts, reported back, with amendments, the Civil
Rights Bill which had been debated to some extent at the
first session. This bill was almost identical with the one
passed by the Senate at the first session. When it was
under consideration February 3, 1875, ^^- Hunton, of Vir-
ginia, in opposing it, said the privileges and immunities of
citizens of the United States were to be found in the Con-
stitution. As illustrating these, he quoted the Fourth
Amendment which secures persons against unreasonable
searches, etc.^'^ Mr. Smith, of the same State, though a
Republican, opposed the bill, declaring it unconstitutional
and inexpedient. The reasoning and decision of Judge
Griswold, of the Ohio Supreme Court, were quoted by Mr.
Smith. One Gardiner, a negro, had, on the nth of Febru-
ary, 1873, purchased a ticket to the dress circle of a theater,
but was refused his seat by the ushers with the understand-
ing that his money would be returned. Thereupon the
negro brought suit against the manager of the theater under
the Civil Rights Bill of 1866, but Judge Griswold held that
this bill had no application to the case. Gardiner could
bring suit, he held, for a breach of contract just as if he
were a white man, but every one could use his property as
he saw fit so long as he wronged no one nor committed a
nuisance. He further declared that the manager could
make a rule excluding negroes from the dress circle.^^^

Mr. Finck, of Ohio, in reply to a query from Mr. Hale, of
New York, stated that he gave no effect whatever to the
fifth section of the Fourteenth Amendment, holding that
Congress would have just as much power if it had been
omitted. His position in regard to the Amendment was that
it was merely a prohibition upon the States, and that it con-
ferred no affirmative power upon Congress to go into the

""Cong. Rec, 43d Cong., 2d Sess., Appendix, p. 119.
'" Ibid., Appendix, p. 157.

Congressional Interpretation of Amendment. 273

States and regulate the intercourse of their citizens. He
quoted from the decision of the Ohio Supreme Court in
1 87 1 (21 Ohio State Reports), in which the Court held that
the State had the right to regulate its schools regardless of
the Fourteenth Amendment. If the bill before Congress
was Constitutional, he asserted, then there was no limit to
the power of the Federal Government.^^^ In this last state-
ment Mr. Storm, of Pennsylvania, concurred. The latter
also referred to the fact that the Judiciary Committee of the
Senate had twice reported adversely upon this bill.^^* It
must be remarked, however, that no reasons were given for
these adverse reports, and that the statement was made in
the Senate to this effect, some members of the Committee
saying that it was not reported adversely on constitutional
grounds.

Mr. Hale, of New York, spoke very forcibly and con-
vincingly the next day, February 4, in regard to the bill
and alluded to the fact that he and Mr, Finck had been
members of the Congress which proposed the Fourteenth
Amendment. " I remember," he stated, " if the gentleman
from Ohio [Mr. Finck] has forgotten it, as he probably
may, that it was my fortune, standing alone in my party,
to oppose the Fourteenth Amendment by my vote and by
my voice, upon the ground, which seemed to me to be one
I could not forsake, that it did change the constitutional
power of Congress, that it changed the theory of our Gov-
ernment, and introduced a range of legislation utterly lack-
ing in the old Constitution or in any previous Amendments
to it except the Thirteenth. I voted against the Fourteenth
Amendment on that ground alone, fully conceding the pro-
priety of the provisions of the Article, except the last sec-
tion, claiming that that section was to a certain extent a
revolution of our form of Government in giving Congress
a control of matters which had hitherto been confined ex-
clusively to state control. In the position I then took I
certainly understood in the Thirty-ninth Congress that my

'" Ibid., pp. 947-49.
'" Ibid., p. 951.
18

274 Adoption of the Fourteenth Amendment.

friend from Ohio, whose opinion on legal and constitutional
questions I value highly, fully concurred. I understood
that the entire body of his political associates on the other
side of the House in that Congress concurred with me."
Mr. Hale does not seem to have exaggerated in the least,
for the facts bear out his statements. The first ten Amend-
ments, in his opinion, merely constituted a Bill of Rights,
but there was no provision in the Constitution or in
those Amendments which empowered Congress to legislate
in regard to prohibitions, restrictions, or rights, and the
legislative power was limited to the carrying out of the
powers granted. It seems that the clause in regard to the
obligation of contracts would be a good illustration of this
point. He then cited the fifth section of the Fourteenth
Amendment as giving an absolute and unlimited power to
enforce the provisions of that Amendment by appropriate
legislation. H the doctrine laid down by Chief Justice
Marshall in McCulloh vs. Maryland be followed, continued
Mr. Hale, there could be no question as to the power of
Congress under that Amendment to enact legislation to
remedy the great evil against which it proposes to guard.
The doctrine of the cases referred to is that within the grant
of power Congress could use its own discretion, and Mr.
Hale held that, according to this decision, the question of
the fitness or desirability of such legislation was for Con-
gress alone and not for the Courts. ^^^

Mr. Chittenden, of New York, though a Republican and
admitting that the bill was in conformity with the Amend-
ments, opposed it because he thought it inexpedient, assert-
ing that the North would oppose it if it had the same pro-
portion of negroes as the South,"^

Mr. Garfield, of Ohio, advocated the bill in a short
speech,^^'' though he had opposed a similar bill at an earlier
date. Mr. Cessna, of Pennsylvania, moved the bill which
had passed the Senate at the previous session as a substi-

"• Ibid., pp. 979-80.
"• Ibid., p. 982.
"'Ibid., p. 1005.

Congressional Interpretation of Amendment. 275

tute for the House bill, but this was defeated by a vote of
114 to 148.^^^ The Senate bill was more radical. Mr.
White, of Alabama, offered a substitute to the effect that
separate schools, separate accommodations on railroads, at
hotels, etc., might be provided if they were equal in equip-
ment and kind for both races. The substitute also pro-
vided that no one could be excluded from the jury box on
account of color or race. This was rejected by a vote of
91 to 114.^^® The amendment of Mr. Kellogg, striking
out all reference to common schools was agreed to, how-
ever, by a vote of 128 to 48."'* The bill then passed, Feb-
ruary 4, 1875, t)y a vote of 162 to 99, 28 not voting.^**
Among those in favor of the bill, the following were also
members of the Thirty-ninth Congress: Messrs. Dawes,
Garfield, Hale (of New York), Kelley, Lawrence, Poland
and Wilson (of Iowa). - —

Mr. Thurman, when the bill was before the Senate on
February 26, moved to amend section four by striking out
" or of any State." He held that Congress had no power
to declare who should sit on the jury in state courts, this
not being a right of a citizen of the United States as such.
He declared that if Congress could do this, there \yas no
limit to Federal power and that the States were nothing
more than counties. Mr. Thurman also noted the fact
that the reverence for States Rights had been fading out
of the minds of Senators since he had taken a seat in that
body.^*^ His amendment was defeated later by a vote of
40 to 36.^*^

Mr. Boutwell stated that he doubted whether Mr. Thur-
man was correct in saying that States Rights had been
fading out, but admitted that the power of the States was
not what it once was. On this particular point he made
the following immistakable declaration : " The Thirteenth,

'"Ibid., p. ion.

'**Ibid., p. loio.

^"Ibid., p. loio.

'"Ibid., p. ion.

'"Ibid., pp. 1791-92.

'" Ibid., p. 1867.

2/6 Adoption of the Fourteenth Amendment.

Fourteenth and Fifteenth Amendments did limit the power
of the States; they did extend the power of the General
Government; and the question we are considering almost
continually is the extent to which the power of the States
has been limited by these Amendments and the extent to
which the power of the General Government has been car-
ried by these several Amendments." In regard to the
decision in the Slaughter House Cases, he declared that
that decision only applied to cases exactly similar to those,
and that it was not law for the Senate when considering a
question which was diflferent from the one on which the
Court had passed. The first privilege of citizens of the
United States, he continued, was that they were citizens of
the State wherein they resided, and that the chief right of
a citizen of a State was that he was the equal before the
law of every other citizen of that State. It was this right
of being equal before the law which he derived from being
a citizen of the United States, and consequently a citizen
of the State, which the Federal Government was enabled
to see enforced under the Fourteenth Amendment, he
declared."*

Mr. Edmunds contended that the right to serve on the
jury was a civil right on the si^me basis as the right to be
a witness.^*' Mr. Thurman pdinted out the inconsistency
in the position of the advocatesXof the bill in saying that
the States might make discriminations for everything and
anything except about race and c6lor. He asked for the
provision which empowered Congress to forbid this dis-
crimination while permitting discrimination on account of
ignorance, property, age, etc. If the principle of the bill
be accepted, he continued, then Congress could prescribe
the qualifications of jurors by a process of elimination and
prohibition.^*® Mr. Carpenter thought the section relating
to jurors was unconstitutional, and so voted against the
bill."^

'" Ibid., pp. 1792-93-
"* Ibid., p. 1866.
'" Ibid., pp. 1866-67.
'"Ibid., pp. 1861 and 1870.

Congressional Interpretation of Amendment. 277

The bill passed the Senate on February 27, 1875, ^y ^
vote of 38 to 26. Among those supporting the bill were
the following who were also members of the Thirty-ninth
Congress: Messrs. Allison, Anthony (of R. I',), Boutwell,
Chandler (of Mich.), Conkling, Cragin (N. H.), Edmunds,
Howe, Morrill (Vt.), Sherman, Stewart, Washburne
(Mass.), Windom (Minn.), Ramsey (Minn.)."* The
President approved the bill on March i.
/_The Civil Rights Act of 1875, the principal sections of
which were declared unconstitutional by the Supreme Court
some years later, marks the culmination of the efforts of
Congress to enact laws* for the enforcement of the Four-
teenth Amendment. The Republicans had been overwhelm-
ingly defeated at the election in the fall of 1874 when the
proposed Civil Rights Bill had been one of the main issues,
and when that party again had the majority in all branches
of the Government, it was evidently regarded as unwise to
renew the subject. However futile were the efforts of
Congress to give vitality to the Amendment as interpreted
by itself and_by those who had most to do with its drafting
and adoption/ the fact remains that nearly all the evidence
goes to suet^n the position of Congress as far as the ques-
tion of power and authority is concerned. The evidence
given in this chapter but corroborates and strengthens that
given in the previous chapters as to the meaning of the
Fourteenth Amendment, while all that has gone before
sustains the position and contentions of those who advo-
cated the several measures considered in this chapter.
This does not mean that those measures were wise or just,
and should have been passed, but it merely means that,
according to the purpose and intention of the Amendment
as disclosed in the debates in Congress and in the several
state Legislatures and in other ways. Congress had the con-
stitutional power to enact direct legislation to secure the
rights of citizens against violation by individuals as well
as by States.

Ibid., p. 1870.

appendix;

The War Amendments.

Article XIII. Section i. Neither slavery nor involun-
tary servitude, except as a punishment for crime, whereof
the person shall have been duly convicted, shall exist within
the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this
article by appropriate legislation.

Article XIV. Section i. All persons born or natural-
ized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any
law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process
of law, nor deny to any person within its jurisdiction the
equal protection of the laws.

Section 2. Representatives shall be apportioned among
the several States according to their, respective numbers,
counting the whole number of persons in each State, exclud-
ing Indians not taxed. But when the right to vote at any
election for the choice of Electors for President and Vice-
President of the United States, Representatives in Con-
gress, the executive or judicial officers of a State, or the
members of the Legislature thereof, is denied to any of
the male inhabitants of such State, being twenty-one years
of age and citizens of the United States, or in any way
abridged except for participation in rebellion or other crime,
the basis of representation therein shall be reduced in the
proportion which the number of such male citizens shall
bear to the whole number of male citizens twenty-one years
of age in such State.

278

Appendix. 279

Section 3. No person shall be a Senator or Representa-
tive in Congress, or Elector of President or Vice-President,
or hold any office, civil or military, under the United States,
or under any State, who, having previously taken an oath
as a member of Congress, or as an officer of the United
States, or as a member. of any State Legislature, or as an
executive or judicial officer of any State, to support the
Constitution of the United States, shall have engaged in
insurrection or rebellion against the same, or given aid or
comfort to the enemies thereof. But Congress may, by a
vote of two thirds of each house, remove such disability.

Section 4. The validity of the public debt of the United
States, authorized by law, including debts incurred for pay-
ment of pensions and bounties for services in suppressing
insurrection or rebellion, shall not be questioned. But
neither the United States nor any State shall assume or
pay any debt or obligation incurred in aid of insurrection
or rebellion against the United States, or any claim for the
loss or emancipation of any slave ; but all such debts, obli-
gations, and claims shall be held illegal and void.

Section 5, Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.

Article XV. Section i. The rights of citizens of the
United States to vote shall not be denied or abridged by
the United States, or by any State, on account of race,
color, or previous condition of servitude.

Section 2. Congress shall have power to enforce this
article by appropriate legislation.

INDEX

Alabama, ratified by, 191; re-
jected by, I94f.

Amendments, see Thirteenth,
Fourteenth, and Fifteenth
Amendments, and Bill of
Rights.

Amnesty Bill, ch. 5.

Arkansas, ratified by, 190; re-
port of committee, 200; re-
jected by, 201.

Atlanta Intelligencer, quoted,
154-

Baker, J., remarks by, 93.
Baltimore American, quoted, 48,

49.
Barnes vs. Browning, cited, 47.
Barron vs. Baltimore, cited, 59,

233-
Beck, J. M., remarks by, 216,

229f., 261.
Benjamin, J. F., remarks by, 104,
Bill of Rights (first eight

Amendments), to be made

applicable to the States, 74,

79, 81, 8s, 86, 94, 142, 151,
187, 233-235, 241, 248, 255,
256, 261, 266, 274.

Bingham, John A., remarks by,
30, 35, 56, 58, 65, (>^, 71, 79,

80, 150, 219, 230, 23lflf.
Blaine, Jas. G., remarks by, 98,

99f., 129.

Blair, Senator, of Maryland, re-
marks by, 245, 259.

Boreman, Senator, of West Vir-
ginia, remarks by, 259.

Boutwell, Geo. S., remarks by,

61, 117, 128, 211, 2I2ff., 268,

275f-
Boyer, B. M., remarks by, 76.

ii6f., 129.
Broomall, J. M., remarks by,

29, ^(i, 98, 127.
Browning, O. H., letter g^iving

exposition of the Amend-

ment, 146; editorials on this
letter, 144, 147, IS4-

Burchard, Mr., of Illinois, re-
marks by, 243f.

Butler, Benjamin, remarks by,
260, 272.

California, Amendment not acted

on, 207.
Carpenter, Matthew, remarks by,

223, 253, 254, 255, 269, 276.
Caucus, Republican, 11, 12, 120,

121.
Cessna, Mr., of Pennsylvania,

remarks by, 274f.
Charleston (S. C) Courier,

quoted, 41, 154.
Chittenden, Mr., of New York,

remarks by, 274.
Chronicle (Washingfton), quoted,

143-
Cincinnati Commercial, quoted,

. . 41, 43, 45, 46, 144, 146.
Citizenship, Clause defining, 88-
90, 94; not chief purpose of
Fourteenth Amendment, 63,

83.

Civil Rights Bill of 1866, discus-
sion of, 15, 22-34; outline
of, 20; votes on, 25, 35, 38,
39; veto of, 35; passage over
veto, 38, 39 ; meaning of, 40,
92; efforts to secure privil-
eges under, 46ff. ; cases un-
der, 47ff. ; judicial decisions
concerning, 49ff. ; constitu-
tional, 48; unconstitutional,
50; reenacted, 219, 222-224;
see also 218, 272, and the
Civil Rights Bill of 1875.

Civil Rights Bill of 1875, 2i8ff.,
277.

Cobum, Mr., of Indiana, re-
marks by, 241.

Colfax, Speaker, remarks by, 40,
149.

281

282

Index

Confederate debt, not to be paid,
133-136.

Congress, the Amendment be-
fore, SS-139; efforts to en-
force the War Amendments,
214-279. See also Civil
Rights and Freedm-cn's
Bureau Bills.

Congressional interpretation of
the Amendment, 2ioff.

Conkling, Roscoe, remarks by,
59, loi, III, 128, 271.

Connecticut, Amendment ratified
by, 161.

Cook, B. C, remarks by, 26, 137.

Corfield vs. Coryell, cited, 85,
181, 23s, 243, 246.

Cowan, Edgar, remarks by, 19,
22, 23, 25.

Cox, S. S., remarks by, 24of.

Cullom, Shelby M., remarks by,
216.

Davis, Garrett, remarks by, 15,

18, 24, 38, 136, 254.
Davis, T. T., remarks by, 30, 58.
Dawes, H. L., remarks by, 241 f.
Dawson, J. L., remarks by, 16.
Delano, Columbus, remarks by,

29-30, 150.
Delaware, rejected by, 204.
Doolittle, Jas. R., remarks by, 19,

89, 90, 123, 125.

Edmunds, Geo. F., remarks by,

219, 257f., 270, 276.
Eldridge, C. A., remarks by, 28,

77, 2iSf.
Eliot, T. D., remarks by, yj, 102.
Enforcement Bills, 2i8ff.

Famsworth, J. F., remarks by,
79, 23of.

Federalist, The, quoted, 238.

Ferry, Senator, of Connecticut,
remarks by, 257.

Fessenden, W. P., report of Re-
construction Committee by,
71 ; remarks by, 74, 107.

Fifteenth Amendment, bills to
enforce, 2ioflF. ; text of, 279.

Finck, W. E., remarks by, 75,
272.

Florida, ratified by, 190; rejected
by, I93f.

Force, M. F., remarks by, 150.

Fourteenth Amendment, section
I, 55-97; section 2, 97-127;
section 3, 127-133; section 4,
133-136; section 5, 136-139;
forms in which proposed, 56,
60, 61, 66, 98, 100, 109, III,
113, 127, 128, 131; debates
on, 56-60, 74-93, 97-io6, 137-
139, I 15-126, 129-133, 137-
139 ; before Reconstruction
Committee, 60-71, 106-114,
128; votes on in Committee,
62, 66, 67, 68, 109, no. III,
113, 114, 128; votes on in
the House, 82, 93, 103, 104,
118, 126, 131, 132, 134; votes
on in the Senate, 90, 92, 123,
126, 131, 132; authorship of,
69, 71; purpose of, 32, 33,
56, 64, 69, 81, 94, 96, 127-
133, 137, 139, 140-142, 146,
153-157, 187, 233 (see also
the several States, the Bill
of Rights, and debates in
chapter 5) ; incorporation of
Civil Rights Bill, 75, 78, 81,
86, 94, 96, 137, 140, 141, 143,
145, 149, 153, 155, 228, 231,
237, 24s ; to make Bill of
Rights binding upon the
States, 74, 79, 81, 85, 86, 94,
142, 151, 187, 233, 241, 248,
255, 256, 261, 266, 274; text
of, 278; before the people,
140-160; ratified by the
States, i6iflF. ; congressional
interpretation, 2ioff. ; see
also the several States;
caucus for ratification of,
208.

Freedmen's Bureau Bill of 1866;
introduction of, 12; out-
lined, 13-14; votes on, 16,
17; debated, 16, 17; vetoed,
17; veto sustained, 19; later
reenacted over veto, 19.

Frelinghuysen, Senator, of New
Jersey, remarks by, 226,
246f., 265.

Garfield, Jas. A., remarks by, 75,
116, 129, 238ff., 274.

Georgia, ratified by, 191 ; rejected
by, I92f.

Golladay, Mr., of Tennessee, re-
marks by, 241.

Index

283

Grimes, J. W., remarks by, 71,

74-
Grinnell, J. B., remarks by, 17.
Guthrie, James, remarks by, 25,

2,7-

Hale, R. S., 57, S8, 273.

Hamilton, Senator, of Maryland,
remarks by, 222.

Harding, A., remarks by, 93, 139.

Harris, Ira, remarks by, 128.

Henderson, J. B., remarks by, 24,
91 f., I04f., 125.

Hendricks, T. A., remarks by,
14, 37, 91, 122, 138, 149.

Herald (N. ,Y.), quoted, 40, 41,
141, 145, 147.

Herndon, Mr., of Texas, re-
marks by, 264.

Hill, B. H., letter to New York
Herald, 159.

Hill, Ralph, remarks by, 28.

Hoar, Geo. F., remarks by, 229.

Holman, Mr., of Indiana, re-
marks by, 241.

Hotchkiss, G. W., remarks by,

59-

Howard, J. M., remarks by, 23,
84ff., 88, 89, 90, 118, 122,
131, 135, U7, 221.

Howe, T. O., remarks by, 91,
259, 268.

Hunton, Mr., of Virginia, re-
marks by, 272.

Illinois, ratified by, 171.
Indiana, ratified by, I73ff.
Iowa, ratified by, 189.

Johnson, President, Veto of
Freedmen's Bureau Bill, 17-
18; veto of Civil Rights Bill,
35; telegram advising rejec-
tion of. Amendment, 195.

Johnson, Reverdy, author of re-
port of minority of the
Committee, 7^; remarks by,
23, 37, 89, 92, io7f., III.

Kansas, ratified by, 172.
Kelley, W. D., remarks by, 57,

76, 117.
Kentucky, rejected by, 204.
Kerr, M. C, remarks by, 16, 30,

216, 229.

Lansing, Mr., of New York, re-
marks by, 242.

Latham, G. L., remarks by, 32,
35.

Lawrence, Wm., • remarks by,
112, 262.

Livingston vs. Moore, cited, 233.

Louisiana, ratified by, 190; re-
jected by, 203.

Louisville Journal, quoted, 157.

Lowe, Mr., of Kansas, remarks
by, 237.

McCulloh vs. Maryland, cited,
274.

McDougal, J. A., remarks by,
25, 38.

McKee, Samuel, remarks by, 216.

Madison, James, quoted, 238.

Maine, ratified by, 172.

Marshall, S. M., remarks by, 16.

Maryland, rejected by, 204; re-
port of Committee, 205ff.

Massachusetts, ratified by, i86ff. ;
report of Committee of
Legislature, i87ff.

Memphis Avalanche, quoted, 157.

Michigan, ratified by, 186.

Miller, G. F., remarks by, 118,
216.

Mills, Roger Q., remarks by,
261.

Minnesota, ratified by, i75f.

Mississippi, ratified by, 191 ; re-
jected by, 203.

Missouri, ratified by, I72f.

Mobile Register, quoted, 45.

Montgomery Mail, quoted, 158.

Morgan, E. D., remarks by, 19,
38.

Morgan, Geo. W., remarks by,
149.

Morrill, Lot M., violated pledge
to unseat Stockton, 39; re-
marks by, 252f.

Morton, Senator, of Indiana, re-
marks by, 221, 245, 251, 254,

*- 256, 267.

Moulton, S. W., remarks by, 17.

Nashville Union and American,

quoted, 157.
National Intelligencer, quoted,

41, 44, 46, 152.
Neal, Judge Stephen, claim to

284

Index

authorship of Amendment,

69, 70.
Nebraska, ratified by, 189.
Negroes, efforts of, to secure

civil rights, 46ff., 264; see

also Civil Rights Bill.
Nevada, ratified by, 172.
New Hampshire, ratified by,

i6iff.
New Jersey, ratified by, 165;

ratification withdrawn, i65ff.
New York, ratified by, i68f.
Noell, T. E., remarks by, 39.
North, Attitude of the, 140-153;

see also the several States.
North Carolina, ratified by, 190;

report of Committee, I96ff. ;

rejected by, 200.
Norwood, Senator, of Georgia,

remarks by, 254, 257, 266.

Ohio, ratified by, i69f. ; ratifica-
tion withdrawn, i7of.

Oregon, ratified by, i67f. ; ratifi-
cation withdrawn, 168.

Owen, Robert Dale, plan of, 65,
67, 69, 70, 113, 135-

Pendleton, Geo. H., remarks by,
150.

Pennsylvania, ratified by, I78f. ;
amendment debated in, I79ff.

Phelps, C. E., remarks by, 35, 83.

Philadelphia News, quoted, 158.

Picayune (New Orleans),
quoted, 158.

Pike, F. A., remarks by, 98, 102.

Pittsburg Post, quoted, 153.

Poland, L. P., remarks by, 91,
123, 244.

Pool, Senator, of North Caro-
lina, remarks by, 220.

Post (New York), quoted, 41,
143.

Pratt, Senator, of Indiana, re-
marks by, 247, 267.

Press, views of the, 140-160.

President, see Johnson.

Raleigh Sentinel, quoted, 155-

157.
Randall, S. J., remarks by, 78,

134, 135-
Randall, W. H., 35.
Raymond, H. S., remarks by, 29,

39, 77, 130.

Read, Mr., of Kentucky, re-
marks by, 264.

Reconstruction Committee, com-
position of, 60; Fourteenth
Amendment before, 60-68,
93, III; report of, 71-74.

Representatives, clause provid-
ing for apportionment of,
97-127.

Rhode Island, ratified by, 176.

Rice, Mr., of Illinois, remarks
by, 237.

Rogers, A. J., remarks by, 26, 78.

Rousseau, L. H., remarks by, 16,
35-

Sargent, Mr., of California, re-
marks by, 269, 270.

Saulsbury, Willard, remarks by,
22, 25, 38, 90.

Sawyer, Senator, of South Caro-
lina, remarks by, 251.

Schenck, R. C, remarks by, 76,
98, 103.

Schurz, Carl, article by, 149; re-
marks by, 220.

Seward, Secretary, opinion as to
Thirteenth Amendment, 26.

Shanklin, G. S., remarks by, 76,
129, 135-

Sharkey, Governor of Missis-
sippi, quoted, 154.

Shellabarger, Samuel, remarks
by, 32, 2i6f., 228.

Sherman, John, remarks by, 120,
124, 149, 220, 245, 255f.,
258f.

Slaughter House Cases, cited,
246, 265, 266, 268, 276

Smith, G. C., remarks by, 35.

Smith, Mr., of Virginia, 272.

South, Attitude of the, I54ff. ;
see also the several States.

South Carolina, ratified by, 190;
rejected by, 202.

Southern leaders to be dis-
qualified from holding office,
127-133.

Spalding, R. P., remarks by, 127.

Stevens, Thaddeus, remarks by,
12, 38, 56, 60, 69, 70, 74, 75,
98, loi, 103, 104, 107, III,
113, 114, 116, 128, 129, 131,
13s, 210.

Stewart, W. M., remarks by, 19,
60, 119, 219, 269.

Index

285

Stockton, J. P., remarks by, 36,
38-39, 220, 247f., 268.

Storm, Mr., of Pennsylvania, re-
marks by, 236f., 273.

Sumner, Charles, remarks by,
127, 218, 225, 250, 258, 264.

Tennessee, ratified by, i63ff.
Texas, ratified by, 191 ; rejected

by, 191 f.
Thayer, M. R., remarks by, 27,

75, 76, 116, 129.
Thirteenth Amendment, views

of, 26, 27, 185, 247; text,

278
Thornton, A., remarks by, 17, 28.
Thurman, A. G., remarks by,

219, 221, 2Sif., 275, 276.
Times (New York), quoted, 41,

43, 49, 147-
Tribune (New York), quoted,

41, 147.
Trumbull, Lyman, remarks by,

12, 14, 17-19, 21, 24, 37, ^,

148, 248.
Tjmer, Mr., of Indiana, remarks

by, 242.

Van Winkle, remarks by, 22, 25.
Vermont, ratified by, 168.
Vickers, Senator, of Maryland,

remarks by, 319
Vicksburg Herald, quoted, 158.

Vicksburg Republican, quoted,
158.

Virginia, ratified by, 191 ; re-
jected by, 202f.

Wade, Benjamin, remarks by,
Z7, 88; rebuked, 38

War Amendments, text of, 278f.
Westminster, Md., mass meeting

at, opposed the Civil Rights

Bill, 44-
Weston, Geo. W., letter giving

exposition of first section,

151-

West Virginia, ratified by, 172.

Whaley, K. V., remarks by, 39.

Whipple, E. P., article by, 149.

Willard, Mr., of Vermont, re-
marks by, 242!

Williams, G. H., remarks by, 90,
114.

Wilson, Henry, remarks by, 15,
119, 124, 242.

Wilson, Jas. F., remarks by, 25,

32, 34- ^

Wisconsin, ratified by, 178; re-
port of minority committee
on, i76ff.

Woodbridge, F. E., remarks by,
58.

World (New York), quoted, 41,
42, 140.

*^ OF THE

UNIVERSITY

VITA.

Horace Edgar Flack was born at Cuba, Rutherford
County, North Carolina, May 14, 1879. He received his
elementary education in the public schools of the county
and at the Rutherfordton Military Institute. He entered
Wake Forest College, North Carolina, in the fall of 1898
and received the degrees of Bachelor of Arts and Master
of Arts in 1901. He was Principal of the Piedmont Sem-
inary, Lincolnton, North Carolina, 1901-02, He entered
the Johns Hopkins University in the fall of 1903, where
he pursued courses in Political Science, History and Po-
litical Economy. He was Fellow in Political Science
1905-06.

286

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