The Reconstruction Amendments: The Essential Documents, Volume 2 9780226689005

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The Reconstruction Amendments

The Reconstruction Amendments The Essential Documents / V olume 2

Edited by Kurt T. Lash

The University of Chicago Press Chicago and London

The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London © 2021 by The University of Chicago All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission, except in the case of brief quotations in critical articles and reviews. For more information, contact the University of Chicago Press, 1427 E. 60th St., Chicago, IL 60637. Published 2021 Printed in the United States of America 30 29 28 27 26 25 24 23 22 21  1 2 3 4 5 ISBN-­13: 978-­0-­226-­68895-­4 (cloth) ISBN-­13: 978-­0-­226-­68900-­5 (e-­book) DOI: https://doi.org/10.7208/chicago/9780226689005.001.0001 Library of Congress Cataloging-­in-­Publication Data Names: Lash, Kurt T., editor. Title: The Reconstruction amendments : the essential documents / edited by Kurt T. Lash. Description: Chicago ; London : The University of Chicago Press, 2021. | Includes bibliographical references and index. | Contents: Volume 1. Part 1. The antebellum Constitution; Part 2. The Thirteenth Amendment — Volume 2. Part 1. The Fourteenth Amendment; Part 2. The Fifteenth Amendment. Identifiers: LCCN 2020013708 | ISBN 9780226688787 (v. 1 ; cloth) | ISBN 9780226688954 (v. 2 ; cloth) | ISBN 9780226688817 (v. 1 ; ebook) | ISBN 9780226689005 (v. 2 ; ebook) Subjects: LCSH: United States. Constitution. 13th–­15th Amendments—History—Sources. | Constitutional amendments—United States—History—19th century—Sources. | Constitutional history—United States—19th century—Sources. Classification: LCC KF4757 .R43 2021 | DDC 342.7303/909034—dc23 LC record available at https://lccn.loc.gov/2020013708 ♾ This paper meets the requirements of ANSI/NISO Z39.48-­1992 (Permanence of Paper).

Contents

Introduction to Volume 2 / xiii

Part 1. The Fourteenth Amendment

A. Drafting Introduction to Part 1A / 5 The Thirty-­Ninth Congress: Membership / 14 1. US Senate, Opening Day of Thirty-­Ninth Congress (Dec. 4, 1865) / 19 2. US House, Opening Day of Thirty-­Ninth Congress, Exclusion of Former Rebel States, Appointing Joint Committee on Reconstruction (Dec. 4, 1865) / 20 3. US House, Thaddeus Stevens, Proposed Amendments (Dec. 5, 1865) / 22 4. US House, John Bingham, Proposed Amendment (Dec. 6, 1865) / 22 5. US Senate, Appointing Joint Committee on Reconstruction (Dec. 12, 1865) / 23 6. Joint Committee on Reconstruction, Membership (1865–1867) / 24 7. US Senate, Freedmen’s Bureau Bill, Black Codes (Dec. 13, 1865) / 24 8. Secretary of State William Seward, Proclamation of Ratification of the Thirteenth Amendment (Dec. 18, 1865) / 28 9. US Senate, Lyman Trumbull, Freedmen’s Bureau Bill (Dec. 19, 1865) / 28 10. US House, Passage of Proposed Amendment on the Rebel Debt (Dec. 19, 1865) / 29 11. Elizabeth Cady Stanton, “This Is the Negro’s Hour,” National Anti-­Slavery Standard (Dec. 30, 1865) / 30 12. US House, James G. Blaine, Proposed Suffrage-­ Based Apportionment Amendment (Jan. 8, 1866) / 31 13. Joint Committee, Proposed Apportionment Amendment, Exclusion of “Insurgent States” (Jan. 9, 1866) / 33 14. US House, John Bingham, Proposed Amendment to Grant Congress Power to Secure “Equal Personal Rights” (Jan. 9, 1866) / 33 15. US Senate, Lyman Trumbull, Judiciary Committee Reports S. Nos. 60 & 61 (Freedmen’s Bureau and Civil Rights Bills) (Jan. 11, 1866) / 35

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16. US Senate, Lyman Trumbull, Reporting Amendments to Civil Rights Bill (Jan. 12, 1866) / 35 17. Joint Committee, Proposed Amendments, Apportionment, Power to Secure to All Persons “Equal Protection in Their Rights of Life, Liberty and Property” (Jan. 12, 1866) / 38 18. US Senate, Debate, Freedmen’s Bureau Bill (Jan. 19, 1866) / 39 19. Joint Committee, Proposed Amendments, Vote on Apportionment Amendment (Jan. 20, 1866) / 42 20. US House, Debate, Apportionment Amendment (Jan. 22, 1866) / 43 21. US House, Debate, Apportionment Amendment, Women’s Suffrage Petition (Jan. 23, 1866) / 47 22. US House, Debate, Apportionment Amendment (Jan. 24, 1866) / 53 23. US House, Debate, Apportionment Amendment, Speech of John Bingham (Jan. 25, 1866) / 55 24. US House, Debate, Apportionment Amendment, Speech of William Wright (D-­NJ) (Jan. 26, 1866) / 65 25. Joint Committee, John Bingham, Proposed Amendment Granting Congress Power to Enforce the Rights of Citizens and All Persons (Jan. 27, 1866) / 66 26. US Senate, Debate, Civil Rights Bill, Proposed Addition of Citizenship Clause (Jan. 29, 1866) / 67 27. US Senate, Debate, Civil Rights Bill, Amended Citizenship Clause (Jan. 30, 1866) / 73 28. US House, Proposed Apportionment Amendment Referred Back to Joint Committee (Jan. 30, 1866) / 79 29. US House, Apportionment Amendment, Speech of Thaddeus Stevens, Vote and Passage (Jan. 31, 1866) / 80 30. US House, Freedmen’s Bureau Bill, Adding “the Constitutional Right to Bear Arms” (Feb. 1, 1866) / 83 31. US Senate, Civil Rights Bill, Debate, Vote, and Passage (Feb. 2, 1866) / 84 32. US House, Freedmen’s Bureau Bill, Debate and Passage (Feb. 2, 1866) / 88 33. Joint Committee, John Bingham, Proposed

contents

Amendment Granting Power to Secure the Rights “of Citizens in the Several States” and “to All Persons in the Several States Equal Protection in the Rights of Life, Liberty and Property” (Feb. 3, 1866) / 90 34. US Senate, Apportionment Amendment, Speech of Charles Sumner (Feb. 6, 1866) / 90 35. US Senate, Apportionment Amendment, Remarks of William Pitt Fessenden (Feb. 7, 1866) / 92 36. Joint Committee, Adoption of John Bingham’s Version of Proposed Amendment (Feb. 10, 1866) / 95 37. US Senate, William Pitt Fessenden Reports Proposed Amendment (Feb. 13, 1866) / 95 38. US Senate, Freedmen’s Bureau Bill, President Andrew Johnson’s Veto Message (Feb. 19, 1866) / 96 39. US Senate, Freedmen’s Bureau Bill, Speech of Lyman Trumbull, Vote to Override Fails (Feb. 20, 1866) / 98 40. US House, John Bingham Reports Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons, Response by Andrew Rogers (Feb. 26, 1866) / 99 41. US House, Debate, Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons (Feb. 27, 1866) / 103 42. US House, Debate Continued, “Privileges and Immunities” Amendment, Speeches of John Bingham and Giles Hotchkiss, Vote to Postpone Consideration (Feb. 28, 1866) / 108 43. US House, Debate, Civil Rights Bill, Speeches of James Wilson and M. Russell Thayer (Mar. 1–2, 1866) / 119 44. US Senate, Debate, Apportionment Amendment, Opposition of Charles Sumner (Mar. 7, 1866) / 126 45. US House, Debate, Civil Rights Bill (Mar. 8, 1866) / 127 46. US House, Debate, Civil Rights Bill, Speech of Columbus Delano (R-­OH) (Mar. 8, 1866) / 129 47. US Senate, Debate, Apportionment Amendment, Fails Two-­Thirds Vote (Mar. 9, 1866) / 133 48. US House, Debate, Civil Rights Bill, Speech of John Bingham in Opposition (Mar. 9, 1866) / 135 49. US House, Debate, Civil Rights Bill, Vote and Passage (Mar. 13, 1866) / 142 50. US Senate, Motion to Retroactively Exclude John Stockton (Mar. 22, 1866) / 144

vi

51. US Senate, President Andrew Johnson’s Message Accompanying Veto of the Civil Rights Bill (Mar. 27, 1866) / 144 52. US Senate, Exclusion of John Stockton (Mar. 27, 1866) / 146 53. US Senate, Civil Rights Bill, Veto Override (Apr. 6, 1866) / 146 54. US House, Civil Rights Bill, Speech of William Lawrence, Veto Override (Apr. 7, 1866) / 147 55. S. S. Nicholas, “The Civil Rights Bill” (Apr. 12, 1866) / 150 56. “News of Proposed Amendments in the Joint Committee on Reconstruction,” Chicago Tribune (Apr. 16, 1866) / 151 57. Joint Committee, Thaddeus Stevens Introduces Five-­Section Constitutional Amendment (Apr. 21, 1866) / 152 58. Joint Committee, Proposed Constitutional Amendment (Apr. 25, 1866) / 154 59. Joint Committee, Proposed Constitutional Amendment, Adoption of John Bingham’s Draft of Section One (Apr. 28, 1866) / 154 60. US House, Thaddeus Stevens Introduces Proposed Five-­Section Fourteenth Amendment (Apr. 30, 1866) / 155 61. “The Progress of Reconstruction—What the ‘Secret Directory’ Proposes,” New York Times (Apr. 30, 1866) / 156 62. US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens Introducing the Amendment, Debate (May 8, 1866) / 158 63. US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866) / 170 64. US Senate, Proposed Fourteenth Amendment, Speech of Jacob Howard Introducing the Amendment (May 23, 1866) / 185 65. “The Reconstruction Debate in the Senate, Mr. Howard Speaks on Behalf of the Committee,” New York Times (May 24, 1866) / 193 66. US Senate, Proposed Fourteenth Amendment, Debate, Citizenship Clause Added, Section Three Removed and Replaced, Alterations to Section Four (May 29, 1866) / 194 67. US Senate, Proposed Fourteenth Amendment, Debate (May 30, 1866) / 195 68. US Senate, Proposed Fourteenth Amendment, Debate Continued (May 31, 1866) / 200 69. US Senate, Proposed Fourteenth Amendment, Debate Continued (June 4, 1866) / 201

contents

70. US Senate, Proposed Fourteenth Amendment, Debate Continued, Speech of Luke Poland, Remarks of William M. Stewart (June 5, 1866) / 202 71. US Senate, Proposed Fourteenth Amendment, Speech of Garrett Davis (June 7, 1866) / 206 72. US Senate, Proposed Fourteenth Amendment, Debate, Passage of Amended Version (June 8, 1866) / 206 73. Majority and Minority Reports of the Joint Committee (June 8, 1866) / 212 74. US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens, Vote and Passage of Amended Senate Version (June 13, 1866) / 218 75. US House, Proposed Fourteenth Amendment, Discussion Regarding Presentment to the President for Signature (June 15, 1866) / 221 76. US Senate, Proposed Fourteenth Amendment, President Andrew Johnson’s Message of Transmission (June 22, 1866) / 223

B. Ratification Introduction to Part 1B / 227 1. Connecticut, Debate and Ratification of the Fourteenth Amendment (June 25 and 27, 1866) / 235 2. New Hampshire, House Committee Report (Majority and Minority), Ratification of the Fourteenth Amendment (June 26 and July 6, 1866) / 237 3. New Hampshire, House of Representatives, Speech of E. A. Hibbard (June 26, 1866) / 239 4. A Call for a Convention of Southern Loyalists (July 4, 1866) / 240 5. Circular Accompanying the Call for a Convention of Southern Loyalists (July 10, 1866) / 241 6. Congressional Campaign Speeches of Montgomery Blair and George H. Pendleton, Reading, PA (July 18, 1866) / 241 7. Tennessee, Gov. William Brownlow’s Proclamation and Address, Ratification (July 4–19, 1866) / 243 8. US House, Readmission of Tennessee, Speech of John Bingham (July 20 and 23, 1866) / 247 9. Speech of Indiana Gov. Oliver P. Morton on the Fourteenth Amendment, New Albany, IN (July 27, 1866) / 251 10. “The New Orleans Riot,” Albany Evening Journal (Aug. 1, 1866) / 252 11. “The Rebel Massacre in New Orleans” and “The Right of Free Assemblage,” Evening Telegraph (Aug. 1, 1866) / 254

vii

12. Speech of Sen. Lyman Trumbull (R-­IL), Chicago, IL (Aug. 2, 1866) / 255 13. Speech of Rep. Schuyler Colfax (R-­IN), Indianapolis, IN (Aug. 7, 1866) / 257 14. Speech of Sen. Thomas A. Hendricks (D-­IN), Indianapolis, IN (Aug. 8, 1866) / 260 15. Speech of Sen. Henry Lane (R-­IN), Indianapolis, IN (Aug. 18, 1866) / 261 16. Speech of Gen. George Morgan, Coshocton, OH (Aug. 21, 1866) / 261 17. Speech of Rep. John Bingham (R-­OH), Bowerston, OH (Aug. 24, 1866) / 263 18. Speech of Rep. Columbus Delano (R-­OH), Coshocton, OH (Aug. 28, 1866) / 265 19. Speech of President Andrew Johnson, New York, NY (Aug. 29, 1866) / 267 20. “The Appeal,” Southern Loyalists Convention, Philadelphia, PA (Sept. 6, 1866) / 268 21. Frederick Douglass, Speech at Southern Loyalists Convention, Philadelphia, PA (Sept. 6, 1866) / 269 22. President Andrew Johnson, Remarks on the New Orleans Riot, St. Louis, MO (Sept. 8, 1866) / 270 23. New Jersey, Legislative Debates and Ratification (Sept. 11, 1866) / 272 24. Speech of Sen. Henry Wilson (R-­MA), Anderson, IN (Sept. 22, 1866) / 274 25. Speech of Sen. John Sherman (R-­OH), Cincinnati, OH (Sept. 28, 1866) / 276 26. Speech of Gen. Benjamin Butler, Candidate for House of Representatives from Massachusetts, Toledo, OH (Oct. 2, 1866) / 276 27. “A Little More about Suffrage,” New Orleans Times (Oct. 15, 1866) / 277 28. Speech of Wendell Phillips on the Fourteenth Amendment, Cooper Institute (Oct. 25, 1866) / 277 29. Oregon, Legislative Debate and Ratification (Sept. 14 and 19, 1866) / 279 30. “A Clear Issue,” Harper’s Weekly (Oct. 6, 1866) / 281 31. Texas, House Report and Rejection of Proposed Fourteenth Amendment (Oct. 13, 1866) / 282 32. Texas, Senate Report and Rejection of Proposed Fourteenth Amendment (Oct. 22, 1866) / 283 33. Vermont, Gov. Paul Dillingham’s Message, Ratification (Oct. 12, 1866) / 287 34. Letter from Secretary of the Interior O. H. Browning to W. H. Benneson and H. V. Sullivan (Oct. 13, 1866) / 289 35. “Secretary Browning’s Letter,” Evening Post (Oct. 24, 1866) / 292

contents

36. US Congressional Election Returns, Evening Post (Nov. 7, 1866) / 293 37. Frederick Douglass, “Reconstruction,” Atlantic Monthly (Nov. 1866) / 293 38. Georgia, Legislature Rejects the Fourteenth Amendment, Richmond Whig (Nov. 13, 1866) / 296 39. “Madison,” Essays on the Fourteenth Amendment, Nos. I, II, and V, New York Times (Nov. 10, 15, and 28, 1866) / 297 40. Florida, Gov. David S. Walker’s Message to the Legislature (Nov. 14, 1866) / 302 41. The Equal Rights Convention, Remarks of Susan B. Anthony, Elizabeth Cady Stanton, and Frederick Douglass, Albany, NY (Nov. 20, 1866) / 304 42. Florida, Legislative Committee Reports and Rejection of the Fourteenth Amendment (Nov. 23, Dec. 1 and 3, 1866) / 305 43. Virginia, Gov. Francis H. Peirpoint’s Message to the Legislature, Alexandria Gazette (Dec. 4, 1866) / 307 44. Alabama, Gov. Robert M. Patton’s Message to the Legislature, Rejection of the Fourteenth Amendment (Dec. 6 and 7, 1866) / 308 45. North Carolina, Gov. Jonathan Worth’s Message to the Legislature, Joint Committee Report, Rejection of the Fourteenth Amendment (Nov. 20 and Dec. 6, 1866) / 309 46. Arkansas, Senate Committee Report, Rejection of the Fourteenth Amendment (Dec. 10, 1866) / 312 47. South Carolina, Gov. James Orr’s Message to the Legislature, Rejection of the Fourteenth Amendment (Nov. 27, 1866) / 313 48. Ex parte Milligan (1866) / 315 49. Reported Meeting between President Andrew Johnson and South Carolina Commissioner Colonel T. Weatherby, New York Herald (Dec. 28, 1866) / 322 50. Frederick Douglass, “An Appeal to Congress for Impartial Suffrage,” Atlantic Monthly (Jan. 1867) / 323 51. US House, Proposed Bill for the Restoration of the Southern States, Speech of Thaddeus Stevens (Jan. 3, 1867) / 327 52. Kentucky, Gov. Thomas Bramlette’s Message to the Legislature, Rejection of the Fourteenth Amendment (Jan. 4, 1867) / 329 53. Washington, DC, Passage of the District Suffrage Bill, Right Way (Jan. 19, 1867) / 331 54. Virginia, Debate in the General Assembly,

Rejection of the Fourteenth Amendment (Jan. 8–9, 1867) / 332 55. New York, Gov. Reuben Fenton’s Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 1, 2, and 10, 1867) / 334 56. Ohio, Gov. Jacob Cox’s Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 2 and 4, 1867) / 335 57. Speech of Rep. George Boutwell (R-­MA) on Suffrage and the Fourteenth Amendment, National Anti-­Slavery Standard (Jan. 12, 1867) / 337 58. West Virginia, Gov. Arthur Boreman’s Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 16, 1867) / 338 59. Kansas, Gov. Samuel J. Crawford’s Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 9–11, 1867) / 341 60. US House, Speech of John Bingham in Opposition to Bill for the Restoration of the Southern States, Exchange with Thaddeus Stevens (Jan. 16, 1867) / 342 61. Indiana, Gov. Oliver P. Morton’s Message to the Legislature, Majority and Minority Committee Reports, Ratification of the Fourteenth Amendment (Jan. 11, 18, and 23, 1867) / 349 62. US House, Cruel and Unusual Punishments Bill, Debate (Jan. 28, 1867) / 355 63. US House, Bill for the Restoration of the Southern States, Vote to Recommit to Committee on Reconstruction (Jan. 28, 1867) / 357 64. Mississippi, Legislative Committee Report, Rejection of the Fourteenth Amendment (Jan. 30, 1867) / 358 65. Louisiana, Gov. J. Madison Wells’s Message to the Legislature, Rejection of the Fourteenth Amendment (Jan. 28, 1867) / 362 66. Proposed “Compromise” Amendment, New York Times (Feb. 5, 1867) / 363 67. Delaware, Gov. Gove Saulsbury’s Message to the Legislature, Rejection of the Fourteenth Amendment (Jan. 1 and Feb. 14, 1867) / 364 68. Pennsylvania, Legislative Debates on the Proposed Fourteenth Amendment (Jan. 14–­Feb. 6, 1867) / 366 69. Pennsylvania, Vote, Ratification of the Fourteenth Amendment (Feb. 6, 1867) / 376 70. Rhode Island, Gov. Ambrose Burnside’s Message to the Legislature, Ratification of the Fourteenth Amendment (Feb. 2–7, 1867) / 376 viii

contents

71. Wisconsin, Gov. Lucius Fairchild’s Message to the Legislature, Minority Committee Report, Ratification of the Fourteenth Amendment (Jan. 10 and 22, 1867) / 377 72. “The Amendment—The Situation,” Crisis (Feb. 13, 1867) / 382 73. Massachusetts, Legislative Committee on Federal Relations, Majority and Minority Reports on the Proposed Fourteenth Amendment (Feb. 28, 1867) / 383 74. US Congress, First Reconstruction Act (Mar. 2, 1867) / 388 75. US Congress, Tenure in Office Act (Mar. 2, 1867) / 389 76. “On the Massachusetts Committee’s Majority Report,” Boston Daily Advertiser (Mar. 4, 1867) / 390 77. US Congress, Second Reconstruction Act (Mar. 23, 1867) / 391 78. Maryland, Legislature’s Joint Committee Report, Rejection of the Fourteenth Amendment (Mar. 19 and 23, 1867) / 393 79. Nebraska, Gov. David Butler’s Message to the Legislature, Ratification of the Fourteenth Amendment (May 17, June 8 and 15, 1867) / 401 80. Suspension of Secretary of War Edwin Stanton, Official Correspondence, Cincinnati Daily Gazette (Aug. 13, 1867) / 402 81. Reverdy Johnson, “A Further Consideration of the Dangerous Conditions of the Country” (Nov. 15, 1867) / 403 82. Ohio, Legislature Rescinds Prior Ratification, Plain Dealer (Jan. 12, 1868) / 404 83. Gen. Ulysses Grant Restores Edwin Stanton to the Office of Secretary of War, New York Tribune (Jan. 15, 1868) / 404 84. President Andrew Johnson Removes Secretary of War Edwin Stanton, Precipitates Impeachment Proceedings, Chicago Republican (Feb. 22, 1868) / 405 85. Iowa, Gov. William M. Stone’s Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 14 and 27, Mar. 9, 1868) / 406 86. New Jersey, Legislature Rescinds Prior Ratification (Feb. 19, 20, and 25; Mar. 5 and 27, 1868) / 408 87. US House, Receipt and Return of New Jersey Withdrawal of Ratification (Mar. 30, 1868) / 411 88. “Mr. Field’s Argument in the McCardle Case,” Report of Congressional Repeal of Supreme



Court’s Jurisdiction, New York Herald (Mar. 14, 1868) / 412 89. Arkansas, Gov. Isaac Murphy’s Message to the Legislature, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) (Apr. 3, 1868) / 413 90. “Impeachment . . . The President Pronounced Not Guilty,” New York Herald (May 17, 1868) / 414 91. 1868 Republican National Convention and Party Platform, Chicago (May 21, 1868) / 415 92. Florida, Gov. Harrison Reed’s Message to the Legislature, Ratification of the Thirteenth and Fourteenth Amendments (Reversing Earlier Rejection) (June 9, 1868) / 417 93. US Congress, An Act to Admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, to Representation in Congress (June 25, 1868) / 417 94. North Carolina, Gov. W. W. Holden’s Message to the Legislature, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) (July 2, 1868) / 418 95. South Carolina, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) (July 7 and 9, 1868) / 419 96. Alabama, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection), New Orleans Times (July 14, 1868) / 420 97. “Civil Law Restored in Louisiana; Ratification of the 14th Article of Amendment,” Boston Daily Journal (July 15, 1868) / 420 98. Secretary of State William Seward, Provisional Proclamation of Ratification of the Fourteenth Amendment (July 20, 1868) / 421 99. US Congress, Senate and House Resolutions Declaring the Ratification of the Fourteenth Amendment (July 21, 1868) / 422 100. “Georgia Restored to Civil Authority,” New York Times (July 24, 1868) / 424 101. Secretary of State William Seward, Final Proclamation of the Ratification of the Fourteenth Amendment (July 28, 1868) / 425 102. George W. Paschal, “The Fourteenth Article,” New York Tribune (Aug. 6, 1868) / 427 103. John Bingham, “The Great Importance of the Fourteenth Amendment,” New York Herald (Dec. 3, 1868) / 428 ix

Part 2. The Fifteenth Amendment

contents

A. Drafting Introduction to Part 2A / 435 The Fortieth Congress: Membership / 439 1. US Senate, Exclusion of Georgia Senator Joshua Hill, Proposed Suffrage Amendment (Dec. 7, 1868) / 445 2. US House, George Boutwell (R-­MA), Proposed Suffrage Bill and Suffrage Amendment (Jan. 11, 1869) / 445 3. US Senate, John B. Henderson (R-­MO), Proposed Suffrage and Office Holding Amendment (Jan. 23, 1869) / 446 4. US House, George Boutwell, Proposed Suffrage Bill and Suffrage Amendment (Jan. 23, 1869) / 447 5. US House, Suffrage Amendment, Speech of Charles A. Eldridge (D-­WI), Debate (Jan. 27, 1869) / 463 6. US Senate, Suffrage and Office Holding Amendment (Jan. 28, 1869) / 477 7. US House, Suffrage Amendment, Debate on Suffrage Bill (Jan. 28, 1869) / 478 8. US House, Suffrage Amendment, Speech of John Bingham, Debate (Jan. 29, 1869) / 485 9. US House, Suffrage Amendment, Alternative Versions Rejected, Passage of Amendment (Jan. 30, 1869) / 489 10. US Senate, Suffrage and Office Holding Amendment, Debate (Feb. 4, 1869) / 493 11. US Senate, Suffrage and Office Holding Amendment, Speech of Charles Sumner (Feb. 5, 1869) / 498 12. US Senate, Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869) / 500 13. US Senate, Suffrage and Office Holding Amendment, Appointment of Electors, Passage of “Dual” Amendment (Feb. 9, 1869) / 525 14. Elizabeth Cady Stanton, “Women and Black Men,” Revolution (Feb. 11, 1869) / 527 15. US House, Suffrage Amendment, Nonconcurrence with Senate Proposal (Feb. 15, 1869) / 528 16. US Senate, “Dual” Amendment on Suffrage, Office Holding, and Electors; Vote to Recede and Adopt Suffrage Amendment Proposed by House (Feb. 17, 1869) / 530 17. Wendell Phillips, “The Senate and the Proposed Amendment,” National Anti-­Slavery Standard (Feb. 20, 1869) / 532

18. US House, Suffrage Amendment, Addition of Language Protecting the Right to Hold Office (Feb. 20, 1869) / 532 19. US Senate, Suffrage Amendment, Call for Conference with House (Feb. 23, 1869) / 535 20. US House, Suffrage Amendment, Removal of Language Protecting Office Holding, Passes without Debate (Feb. 25, 1869) / 536 21. US Senate, Suffrage Amendment, Debate and Passage (Feb. 26, 1869) / 536

x

B. Ratification Introduction to Part 2B / 541 1. Missouri, State Legislature Ratifies Partially Reported Fifteenth Amendment (Mar. 1, 1869) / 546 2. “Changing the Constitution by Telegraph,” Daily State Register (Mar. 13, 1869) / 547 3. “Ratifying the Amendment,” Daily Evening Bulletin (Mar. 4, 1869) / 547 4. President Ulysses S. Grant, First Inaugural Address (Mar. 4, 1869) / 548 5. Indiana, Democrats Resign to Prevent Vote (Mar. 3–6, 1869) / 548 6. Michigan, Ratification of the Fifteenth Amendment, Minority Dissent and Protest (Mar. 5, 1869) / 549 7. “The Amendment of the Constitution Regarding Suffrage,” New York Times (Mar. 8, 1869) / 551 8. Kentucky, Gov. John Stevenson’s Message to the Legislature, Majority and Minority Reports, Rejection of the Fifteenth Amendment (Mar. 10–12, 1869) / 552 9. South Carolina, Statement of House Minority, Ratification of the Fifteenth Amendment (Mar. 11 and 15, 1869) / 554 10. Georgia, Gov. Rufus Bullock’s Message to the Legislature, House Passage and Senate Rejection of the Fifteenth Amendment (Mar. 10–18, 1869) / 554 11. New Jersey, Gov. Theodore Randolph’s Message to the Legislature, Note on Rejection of Amendment (Mar. 24, 1869) / 558 12. Ohio, House Debate, Rejection of the Fifteenth Amendment (Mar. 25 and Apr. 1, 1869) / 559 13. US Congress, The Requirement Bill: Requiring Virginia, Mississippi, and Texas to Ratify the Fifteenth Amendment as a Condition of Readmission, New York Herald (Apr. 10, 1869) / 559 14. Ex parte McCardle (1869) / 560 15. Texas v. White (1869) / 561

contents

16. “The Fifteenth Amendment,” New York Times (Apr. 12, 1869) / 569 17. New York, Ratification of the Fifteenth Amendment (Apr. 14, 1869) / 570 18. Annual Meeting of the American Equal Rights Association, Remarks of Stephen Foster, Elizabeth Cady Stanton, and Frederick Douglass, New York, NY (May 12–13, 1869) / 570 19. Indiana, Remaining Republican Legislature Ratifies Amendment (May 14, 1869) / 573 20. “The Amendment in Indiana,” Boston Daily Journal (May 20, 1869) / 574 21. “Wendell Phillips Advocates It—Ratification by Rhode Island,” New York Times (May 30, 1869) / 574 22. Virginia, Gov. Gilbert Walker’s Message to the Legislature, Ratification of the Fourteenth and Fifteenth Amendments (Oct. 5 and 8, 1869) / 576 23. Elizabeth Cady Stanton, “All Wise Women Should Oppose the Fifteenth Amendment,” Revolution (Oct. 21, 1869) / 577 24. Tennessee, Gov. Dewitt Senter’s Message to the Legislature, Committee Reports, Rejection of the Fifteenth Amendment (Oct. 13, Nov. 15 and 16, 1869) / 578 25. US Congress, The “Georgia Bill,” Debate and Passage (Dec. 16, 20, and 21, 1869) / 581 26. New York, “Ratification of the Fifteenth Amendment Rescinded,” New York Times (Jan. 6, 1870) / 585 27. Kansas, Gov. James M. Harvey’s Message to the Legislature, Repassage of the Fifteenth Amendment (Jan. 12, 1870) / 586 28. Ohio, Legislature Reverses Prior Vote and Ratifies the Fifteenth Amendment (Jan. 3 and 14, 1870) / 586 29. Iowa, Gov. Samuel Merrill’s Message to the Legislature, Ratification of the Fifteenth Amendment (Jan. 11 and 27, 1870) / 588

30. California, Gov. H. H. Haight’s Message to the Legislature, Rejection of the Fifteenth Amendment (Jan. 5 and 28, 1870) / 588 31. Georgia, Gov. Rufus Bullock’s Message to the Legislature, Ratification of the Fourteenth and Fifteenth Amendments (Feb. 2, 1870) / 592 32. “The Amendment Complete,” Boston Daily Journal (Feb. 4, 1870) / 593 33. New Jersey, Legislative Debate, Rejection of the Fifteenth Amendment (Feb. 7, 1870) / 594 34. President Ulysses S. Grant, Message to Congress Announcing the Ratification of the Fifteenth Amendment (Mar. 30, 1870) / 595 35. Frederick Douglass, Letter to a Ratification Celebration (Apr. 5, 1870) / 597

Appendix

Introduction to the Appendix / 601 1. The Enforcement Bill and Repassage of the 1866 Civil Rights Act (May 31, 1870) / 605 2. US House, Judiciary Committee, Petition of Victoria Woodhull on the Subject of Female Suffrage (Jan. 2, 1871) / 607 3. US House, Judiciary Committee, “The Woodhull Report” (Jan. 30 and Feb. 1, 1871) / 609 4. US House, Speech of John Bingham on the Meaning of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment (Mar. 31, 1871) / 620 5. The Slaughterhouse Cases (1873) / 630 6. Bradwell v. The State (1873) / 654 7. Minor v. Happersett (1875) / 656 8. United States v. Reese (1876) / 661 9. United States v. Cruikshank (1876) / 664

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Acknowledgments / 671 Bibliography / 673 Index and Table of Cases / 677

Introduction to Volume 2 This is the second of a two-­volume collection of historical documents relating to the framing and ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments. Volume 1 covered the basic constitutional doctrines of the antebellum Constitution (federalism, slavery, and secession) as well as materials relating to the framing and ratification of the Thirteenth Amendment. This second volume covers the framing and ratification histories of the Fourteenth and Fifteenth Amendments. For an explanation of the general theory and goals of the collection, readers are encouraged to read the main introduction in volume 1. In brief, these volumes present historical materials relating to the public discussions and debates in the era of Reconstruction—the period immediately following the American Civil War, when the country added three transformative amendments to the Constitution. The first abolished slavery, the second established rights of national citizenship and the conditions for the readmission of the seceding states, and the third protected the right to vote from racial discrimination. The collection focuses on the public discussion of legal issues in an effort to illuminate the legal and constitutional ideas in play at the time of the adoption of these three critical amendments. Because constitutional reconstruction discourse was informed by—and built upon—antebellum legal theories and debates, a proper understanding of these debates requires some grasp of what came before. Volume 1 therefore begins with a collection of antebellum historical documents representing those legal ideas and theories that played major roles during the Reconstruction debates. The roles might be positive (e.g., the continued acceptance of the Federalist Papers as canonical documents of constitutional theory and the rise of abolitionist legal analysis) or negative (e.g., the Supreme Court’s decision in Dred Scott, the theories of John C. Calhoun, and legal and constitutional doctrines relating to the institution of slavery). As readers of this volume will find, participants in the Fourteenth and Fifteenth Amendment debates repeatedly refer to these antebellum legal ideas. Readers also will notice that issues that were debated during the framing and ratification of the Thirteenth

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Amendment carried over into the congressional and public discussions of the next two amendments. Accordingly, these two volumes are meant to be used as an integrated collection of documents that represents the major legal and constitutional debates of Reconstruction. Volume 1 ended with Secretary of State William Seward’s December 1865 proclamation of a ratified Thirteenth Amendment. The year 1865 had begun optimistically for the Northern states: Congress had passed the abolition amendment, the Civil War was winding down, and President Abraham Lincoln had embraced the first reconstructed Southern governments. By the end of that year, however, the North would be mourning the assassination of a beloved president, and Congress would be increasingly pessimistic about the provisional Southern governments established by Lincoln’s successor, Tennessee Democrat Andrew Johnson. Although most of the Southern governments ratified the Thirteenth Amendment, several also had enacted (or continued to enforce) restrictive black codes that limited freedmen’s rights of person and property. Although Section Two of the Thirteenth Amendment gave Congress power to enforce abolition, the scope of that power had been hotly contested during the ratification debates. Whatever the scope of the new amendment, it was unclear whether Republicans would have enough votes to pass enforcement legislation if representatives from the former rebel states were immediately readmitted to Congress. Prior to the Thirteenth Amendment, slaves counted for three-­fifths of a person when determining congressional representation. Now free, still-­disenfranchised Southern blacks would count as a full five-­fifths of a person, significantly increasing the power of Southern Democrats once they returned to their seats in the House of Representatives. Their return seemed imminent. One of Andrew Johnson’s first moves as president was to establish provisional governments in the former rebel states. With the encouragement of President Johnson and his secretary of state, these provisional governments quickly ratified the Thirteenth Amendment in the belief that doing so would pave the way for their readmission to Con-

Introduction to Volume 2

gress. Indeed, how could any state whose vote had been counted for the ratification of a constitutional amendment be excluded from Congress? Throughout the war, Republicans had insisted that the Southern states had never actually been out of the Union. With the war now over, rule of law reestablished in the former rebel states, and provisional governments up and running with the blessing of the nation’s chief executive, it seemed inevitable that the Republicans of the Thirty-­Ninth Congress would bow to the wishes of their new president and accept the return of Southern Democrats.

The Republicans did not, however, bow. Ignoring the outraged cries of Democrats and an increasingly hostile president, the Republican Congress denied readmission to the Southern states. Instead, they went about determining when and how the Southern states might be safely readmitted to the Union. Wresting control of reconstruction from the president, Congress ultimately demanded that the South ratify two additional constitutional amendments—one limiting the political power of Southern Democrats, the other granting political power to freedmen.

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A. Drafting

Introduction to Part 1A The Thirty-­Ninth Congress: Membership 1. US Senate, Opening Day of Thirty-­Ninth Congress (Dec. 4, 1865) 2. US House, Opening Day of Thirty-­Ninth Congress, Exclusion of Former Rebel States, Appointing Joint Committee on Reconstruction (Dec. 4, 1865) 3. US House, Thaddeus Stevens, Proposed Amendments (Dec. 5, 1865) 4. US House, John Bingham, Proposed Amendment (Dec. 6, 1865) 5. US Senate, Appointing Joint Committee on Reconstruction (Dec. 12, 1865) 6. Joint Committee on Reconstruction, Membership (1865–1867) 7. US Senate, Freedmen’s Bureau Bill, Black Codes (Dec. 13, 1865) 8. Secretary of State William Seward, Proclamation of Ratification of the Thirteenth Amendment (Dec. 18, 1865) 9. US Senate, Lyman Trumbull, Freedmen’s Bureau Bill (Dec. 19, 1865) 10. US House, Passage of Proposed Amendment on the Rebel Debt (Dec. 19, 1865) 11. Elizabeth Cady Stanton, “This Is the Negro’s Hour,” National Anti-­Slavery Standard (Dec. 30, 1865) 12. US House, James G. Blaine, Proposed Suffrage-­ Based Apportionment Amendment (Jan. 8, 1866) 13. Joint Committee, Proposed Apportionment Amendment, Exclusion of “Insurgent States” (Jan. 9, 1866) 14. US House, John Bingham, Proposed Amendment to Grant Congress Power to Secure “Equal Personal Rights” (Jan. 9, 1866) 15. US Senate, Lyman Trumbull, Judiciary Committee Reports S. Nos. 60 & 61 (Freedmen’s Bureau and Civil Rights Bills) (Jan. 11, 1866) 16. US Senate, Lyman Trumbull, Reporting Amendments to Civil Rights Bill (Jan. 12, 1866) 17. Joint Committee, Proposed Amendments, Apportionment, Power to Secure to All Persons “Equal Protection in Their Rights of Life, Liberty and Property” (Jan. 12, 1866) 18. US Senate, Debate, Freedmen’s Bureau Bill (Jan. 19, 1866) 19. Joint Committee, Proposed Amendments, Vote on Apportionment Amendment (Jan. 20, 1866)

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20. US House, Debate, Apportionment Amendment (Jan. 22, 1866) 21. US House, Debate, Apportionment Amendment, Women’s Suffrage Petition (Jan. 23, 1866) 22. US House, Debate, Apportionment Amendment (Jan. 24, 1866) 23. US House, Debate, Apportionment Amendment, Speech of John Bingham (Jan. 25, 1866) 24. US House, Debate, Apportionment Amendment, Speech of William Wright (D-­NJ) (Jan. 26, 1866) 25. Joint Committee, John Bingham, Proposed Amendment Granting Congress Power to Enforce the Rights of Citizens and All Persons (Jan. 27, 1866) 26. US Senate, Debate, Civil Rights Bill, Proposed Addition of Citizenship Clause (Jan. 29, 1866) 27. US Senate, Debate, Civil Rights Bill, Amended Citizenship Clause (Jan. 30, 1866) 28. US House, Proposed Apportionment Amendment Referred Back to Joint Committee (Jan. 30, 1866) 29. US House, Apportionment Amendment, Speech of Thaddeus Stevens, Vote and Passage (Jan. 31, 1866) 30. US House, Freedmen’s Bureau Bill, Adding “the Constitutional Right to Bear Arms” (Feb. 1, 1866) 31. US Senate, Civil Rights Bill, Debate, Vote, and Passage (Feb. 2, 1866) 32. US House, Freedmen’s Bureau Bill, Debate and Passage (Feb. 2, 1866) 33. Joint Committee, John Bingham, Proposed Amendment Granting Power to Secure the Rights “of Citizens in the Several States” and “to All Persons in the Several States Equal Protection in the Rights of Life, Liberty and Property” (Feb. 3, 1866) 34. US Senate, Apportionment Amendment, Speech of Charles Sumner (Feb. 6, 1866) 35. US Senate, Apportionment Amendment, Remarks of William Pitt Fessenden (Feb. 7, 1866) 36. Joint Committee, Adoption of John Bingham’s Version of Proposed Amendment (Feb. 10, 1866) 37. US Senate, William Pitt Fessenden Reports Proposed Amendment (Feb. 13, 1866) 38. US Senate, Freedmen’s Bureau Bill, President Andrew Johnson’s Veto Message (Feb. 19, 1866) 39. US Senate, Freedmen’s Bureau Bill, Speech of Lyman Trumbull, Vote to Override Fails (Feb. 20, 1866) 40. US House, John Bingham Reports Proposed

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Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons, Response by Andrew Rogers (Feb. 26, 1866) 41. US House, Debate, Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons (Feb. 27, 1866) 42. US House, Debate Continued, “Privileges and Immunities” Amendment, Speeches of John Bingham and Giles Hotchkiss, Vote to Postpone Consideration (Feb. 28, 1866) 43. US House, Debate, Civil Rights Bill, Speeches of James Wilson and M. Russell Thayer (Mar. 1–2, 1866) 44. US Senate, Debate, Apportionment Amendment, Opposition of Charles Sumner (Mar. 7, 1866) 45. US House, Debate, Civil Rights Bill (Mar. 8, 1866) 46. US House, Debate, Civil Rights Bill, Speech of Columbus Delano (R-­OH) (Mar. 8, 1866) 47. US Senate, Debate, Apportionment Amendment, Fails Two-­Thirds Vote (Mar. 9, 1866) 48. US House, Debate, Civil Rights Bill, Speech of John Bingham in Opposition (Mar. 9, 1866) 49. US House, Debate, Civil Rights Bill, Vote and Passage (Mar. 13, 1866) 50. US Senate, Motion to Retroactively Exclude John Stockton (Mar. 22, 1866) 51. US Senate, President Andrew Johnson’s Message Accompanying Veto of the Civil Rights Bill (Mar. 27, 1866) 52. US Senate, Exclusion of John Stockton (Mar. 27, 1866) 53. US Senate, Civil Rights Bill, Veto Override (Apr. 6, 1866) 54. US House, Civil Rights Bill, Speech of William Lawrence, Veto Override (Apr. 7, 1866) 55. S. S. Nicholas, “The Civil Rights Bill” (Apr. 12, 1866) 56. “News of Proposed Amendments in the Joint Committee on Reconstruction,” Chicago Tribune (Apr. 16, 1866) 57. Joint Committee, Thaddeus Stevens Introduces Five-­Section Constitutional Amendment (Apr. 21, 1866) 58. Joint Committee, Proposed Constitutional Amendment (Apr. 25, 1866) 59. Joint Committee, Proposed Constitutional

Amendment, Adoption of John Bingham’s Draft of Section One (Apr. 28, 1866) 60. US House, Thaddeus Stevens Introduces Proposed Five-­Section Fourteenth Amendment (Apr. 30, 1866) 61. “The Progress of Reconstruction—What the ‘Secret Directory’ Proposes,” New York Times (Apr. 30, 1866) 62. US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens Introducing the Amendment, Debate (May 8, 1866) 63. US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866) 64. US Senate, Proposed Fourteenth Amendment, Speech of Jacob Howard Introducing the Amendment (May 23, 1866) 65. “The Reconstruction Debate in the Senate, Mr. Howard Speaks on Behalf of the Committee,” New York Times (May 24, 1866) 66. US Senate, Proposed Fourteenth Amendment, Debate, Citizenship Clause Added, Section Three Removed and Replaced, Alterations to Section Four (May 29, 1866) 67. US Senate, Proposed Fourteenth Amendment, Debate (May 30, 1866) 68. US Senate, Proposed Fourteenth Amendment, Debate Continued (May 31, 1866) 69. US Senate, Proposed Fourteenth Amendment, Debate Continued (June 4, 1866) 70. US Senate, Proposed Fourteenth Amendment, Debate Continued, Speech of Luke Poland, Remarks of William M. Stewart (June 5, 1866) 71. US Senate, Proposed Fourteenth Amendment, Speech of Garrett Davis (June 7, 1866) 72. US Senate, Proposed Fourteenth Amendment, Debate, Passage of Amended Version (June 8, 1866) 73. Majority and Minority Reports of the Joint Committee (June 8, 1866) 74. US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens, Vote and Passage of Amended Senate Version (June 13, 1866) 75. US House, Proposed Fourteenth Amendment, Discussion Regarding Presentment to the President for Signature (June 15, 1866) 76. US Senate, Proposed Fourteenth Amendment, President Andrew Johnson’s Message of Transmission (June 22, 1866) 4

Introduction to Part 1A

One of the most dramatic moments in American constitutional history occurred on December 4, 1865: the opening day of the Thirty-­Ninth Congress. Representatives from the states of Louisiana, Tennessee, and Virginia were present and waiting for their names to be called so they could enter the chamber and take their seats on the House floor. Proceeding alphabetically, the clerk of the House called the names of representatives from loyal Union states. He skipped over, however, the names of the Southern representatives. Democrats demanded that the clerk explain his refusal to call the names of the waiting representatives, but before the he could answer, Thaddeus Stevens interrupted and declared, “It is not necessary. We know all” (doc. 2). What the members “knew” was that congressional Republicans had decided to exclude these representatives until they were satisfied that the conditions in the Southern states justified their readmission. Over the next several months, Congress debated Reconstruction and the readmission of the Southern states. Two problems required immediate attention, both relating to the Thirteenth Amendment (which, on December 4, 1865, was days away from being officially declared ratified): first, although the Southern states had accepted the abolition of slavery, many had enacted racially restrictive codes controlling the lives and property of freedmen (see doc. 7). Although some Republicans believed that Section Two of the Thirteenth Amendment empowered Congress to invalidate these codes (doc. 7), others insisted that a congressional response first required the passage of an additional constitutional amendment (see, e.g., docs. 14, 42, and 48). Second, and even more pressing, was the need to respond to the Thirteenth Amendment’s potential expansion of Southern political power. Once ratified, four million freedmen who had counted as three-­fifths of a person under the original Constitution would now count as a full five-­fifths of a person. Ironically, the same amendment that brought freedom to Southern blacks might place political control of Congress in the hands of disloyal Southern whites. Republicans were determined not to let that happen. As the majority of the Joint Committee on Reconstruction later explained, “The increase of representation necessarily resulting from the aboli-

tion of slavery was considered the most important element in the questions arising out of the changed condition of affairs, and the necessity for some fundamental action in this regard seemed imperative” (doc. 73). Congress’s first move was to create a special joint committee made up of fifteen members from the House and Senate. This Joint Committee on Reconstruction would “inquire into the condition of the States which formed the so-­called confederate States of America, and report whether they or any of them, are entitled to be represented in either House of Congress, with leave to report at any time, by bill or otherwise” (doc. 5). Chaired by Maine senator William Pitt Fessenden, the Joint Committee included influential Republicans, such as Pennsylvania representative Thaddeus Stevens and Ohio representative John Bingham, as well as a handful of Democrats, including the moderate Maryland senator Reverdy Johnson and the stridently conservative New Jersey representative Andrew Rogers (see doc. 6). Although the committee eventually conducted hearings regarding conditions in the South, its first and central task was to draft and submit proposed constitutional amendments to Congress. These amendments were sent first to the House and then, if passed, forwarded to the Senate. The Joint Committee maintained an official journal that recorded the texts of the various drafts and the member’s individual votes. For example, the journal of the Joint Committee tracked the development of what would become Section One of the Fourteenth Amendment as it went from John Bingham’s original proposal on January 12, 1866 (doc. 17), to the final form adopted by the Joint Committee on April 28, 1866 (docs. 57–59). The journal did not, however, record discussions or debates. The Fourteenth Amendment began as a series of separately proposed amendments. For example, the Thirty-­Ninth Congress initiated debate on a stand-­alone apportionment amendment, which ultimately became Section Two of the five-­sectioned Fourteenth Amendment (docs. 17, 19, and 20). Similarly, the origins of what became Section One can be found in a short amendment initially proposed by John Bingham in January 1866 (doc. 17). Neither of these proposals gained the assent of two-­thirds of both houses as required by Article V 5

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of the Constitution (see, e.g., doc. 47). The turning point for the Fourteenth Amendment came on April 21, 1866, when Thaddeus Stevens submitted to the Joint Committee a five-­sectioned proposed amendment that he had received from Robert Dale Owen (see docs. 56 and 57). Although the committee substantially altered Owen’s original proposal, they preserved his idea of combining what had originally been separately proposed amendments into a single, multisectioned text (doc. 59). The committee submitted its new proposal to Congress on April 30, 1866 (doc. 60). After several weeks of debate, more modifications, and the last-­minute addition of a citizenship clause (doc. 66), the Senate adopted the final version of the Fourteenth Amendment on June 8, 1866 (doc. 72). The House quickly followed suit on June 13 (doc. 74). As Congress debated the various proposals that would coalesce into the Fourteenth Amendment, it also took up major legislative proposals such as the Freedmen’s Bureau Bill and the Civil Rights Bill. In general, the Senate first debated proposed civil rights legislation before sending the same to the House (see, e.g., doc. 15). The House, on the other hand, began the session by debating amendments submitted by the Joint Committee (see, e.g., doc. 20). During these almost simultaneous legislative and constitutional debates, members developed and expounded upon their various theories of individual rights, congressional power, and constitutional interpretation. Discussions that originated with a proposed amendment often carried over into deliberations involving civil rights legislation—discussions that, in turn, carried over into later debates on proposed constitutional amendments. The documents in this section are arranged chronologically so that readers can trace these legal and constitutional threads as they emerged and were developed or abandoned as the session wore on. The “cross-­talk” from one debate to another is especially illuminating; for example, ideas regarding due process and the protection of life, liberty, and property are evident (and continued to develop) during debates over both civil rights legislation and various drafts of the Fourteenth Amendment. Similarly, discussions regarding the meaning and significance of antebellum cases like Corfield v. Coryell and McCulloch v. Maryland also arose during both legislative and constitutional debates throughout the first session. The press followed all these debates and quickly made substantial portions of them available to the public. Unlike America’s founding, with its secret, unpub-

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lished framing debates and serially and partially distributed Federalist Papers, the debates of the Thirty-­Ninth Congress were open to the public and published on an almost daily basis. Newspapers kept their readers informed about the agenda of the Thirty-­Ninth Congress (see, e.g., vol. 1, 2B, doc. 42), proposed amendments before the Joint Committee (docs. 56 and 60), and the debates on the Fourteenth Amendment (doc. 61). They also published full versions of major congressional speeches, including John Bingham’s speech introducing the first draft of the Fourteenth Amendment (doc. 40), Bingham’s speech opposing the Civil Rights Act (doc. 48), and Jacob Howard’s introduction of the Fourteenth Amendment to the Senate (doc. 64). In addition to press coverage, members of Congress occasionally published their speeches separately in pamphlet form, presumably for use as campaign documents (see, e.g., doc. 42). Nor was the public merely a passive consumer of information—advocacy groups followed the events in the Thirty-­Ninth Congress and worked with various members to get their ideas before the membership (see doc. 21). One of the most important examples of outside influence occurred when Robert Dale Owen reached out to Joint Committee member Thaddeus Stevens and presented him with an idea for a five-­part constitutional amendment—an event, once again, reported in the newspapers (doc. 56). In sum, the framing of the Fourteenth Amendment was a remarkably public event, particularly when compared to the drafting of the original Constitution. The full record of the debates of the first session of the Thirty-­Ninth Congress takes up more than four thousand oversized pages in the Congressional Globe. The documents in this section provide no more than a representative sample of the session’s key speeches and debates concerning the framing and passage of the Fourteenth Amendment. They include speeches by members introducing related civil rights legislation— for example, Trumbull’s introduction of the Civil Rights Act in the Senate (doc. 26) and Wilson’s introduction of the same in the House (doc. 43)—or introducing amendments submitted by the Joint Committee, such as Stevens’s introduction of the apportionment amendment to the House (doc. 20). I have edited the extensive debates of the Thirty-­Ninth Congress with the goal of preserving those issues and disputes that play especially important roles in the shaping of the Fourteenth Amendment. For the apportionment amendment, for example, major issues included the general manner of

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determining representation (by population or by registered voters?); the trigger for reduced representation in the House of Representatives (abridgment of civil rights or the denial of black suffrage?); and the appropriate penalty for denials of black suffrage (exclusion of the entire black male population from the representation ratio or just the portion of that population actually excluded?). Members also debated whether penalizing states for denying black suffrage amounted to a concession that disenfranchisement was constitutional so long as the state accepted the penalty. It was this issue that led radical Republicans in the Senate to join with conservative Democrats in defeating a version of the apportionment amendment that the House had already passed (docs. 44 and 47). Although Senate radicals like Charles Sumner had hoped resistance would lead to a stronger protection of black suffrage, when the apportionment amendment reappeared as Section Two of the Fourteenth Amendment, it applied less pressure on the Southern states to allow black suffrage than had the original House-­adopted draft. The counterproductive tactics of Senate radicals drew the wrath of House radicals like Thaddeus Stevens, who later condemned his Senate colleagues for their failure to support the original proposal (doc. 62). What became Section One went through a number of versions before final approval. On January 12, 1866, John Bingham introduced to his fellow members of the Joint Committee an amendment granting Congress “power to make all laws necessary and proper to secure to all persons in every state within this Union equal protection in their rights of life, liberty and property” (doc. 17). On January 20, a subcommittee reported an amended version of Bingham’s original proposal: “Congress 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 persons in every State equal protection in the enjoyment of life, liberty and property” (doc. 19). On January 27, Bingham, on behalf of the “sub-­committee on the powers of Congress,” reported a modified version of the January 20 proposal, which stated, “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 of the United States in any State the same immunities and also equal political rights and privileges” (doc. 25). The Joint Committee voted to adopt this version but postponed its submission to the House (presumably be-

cause the House at that time was debating the committee’s proposed apportionment amendment; doc. 25; see also docs. 28 and 29). Finally, on February 3, Bingham proposed a substitute version of the subcommittee’s proposal, which read, “The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty and property (5th Amendment)” (doc. 33; parentheses in original). The Joint Committee voted seven to six to replace the subcommittee’s proposal with Bingham’s substitute and, on February 10, 1866, voted to send the same to the House for consideration (doc. 36). Bingham introduced the proposed amendment to the House on February 26, and for the next three days, members debated the proposal (see docs. 40–42). Bingham insisted that the proposed amendment did nothing more than grant Congress power to enforce the “comity clause” of Article IV, Section Two and the Fifth Amendment’s due process clause. According to Bingham, properly understood, the comity clause included an unstated “ellipsis” that expanded the scope of the clause to include the rights of citizens “of the United States”: “The citizens of each State (being ipso facto citizens of the United States) shall be entitled to all the privileges and immunities of citizens (supplying the ellipsis “of the United States”) in the several States.” This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States. This guarantee of your Constitution applies to every citizen of every State of the Union; there is not a guarantee more sacred, and none more vital in that great instrument. (doc. 14)

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In Bingham’s interpretation, the comity clause imposed a moral obligation on the states to respect all the privileges and immunities of national citizenship. States, however, had failed to uphold this obligation, and Congress had heretofore lacked the power to enforce these national rights. The proposed amendment, Bingham explained, supplied Congress with such power. Bingham’s proposal faced immediate criticism by a broad spectrum of members. Democrats raised federalism-­based concerns about potentially nationalizing the entire subject of common law civil rights, while Republicans warned about the danger of giving a future

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(and potentially Democrat-­controlled) Congress the power to define the nature and scope of such rights (see doc. 42). Some claimed that the amendment was not necessary, since states already were bound to enforce the rights of national citizenship such as those listed in the Bill of Rights (see doc. 41). In the end, on February 28, 1866, New York representative Roscoe Conkling successfully moved to postpone discussion of the amendment until April (doc. 42), presumably to give the Joint Committee time to redraft Bingham’s proposal (Conkling was a member of the Joint Committee). Between February and April, Congress devoted much of its time to debating the proposed Civil Rights Act. While the House debated amendments submitted by the Joint Committee, the Senate moved forward with a proposed extension of the Freedmen’s Bureau Bill and a Civil Rights Bill. Introduced at the same time by Illinois senator Lyman Trumbull, the two bills contained identical language prohibiting racial discrimination. The Civil Rights Bill, Trumbull explained,

I would not interfere with the unquestionable right of Congress to judge, each House for itself, “of the elections, returns, and qualifications of its own members,” but that authority cannot be construed as including the right to shut out, in time of peace, any State from the representation to which it is entitled by the Constitution. At present, all the people of eleven States are excluded—those who were most faithful during the war not less than others. ... It is hardly necessary for me to inform Congress that, in my own judgment, most of those States, so far at least as depends upon their own action, have already been fully restored, and are to be deemed as entitled to enjoy their constitutional rights as members of the Union. (doc. 38)

declares 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 condition 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 equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding. (doc. 16; see also doc. 18)

Both houses of Congress quickly passed the Freedmen’s Bill and sent the same to President Andrew Johnson for his expected signature. Johnson, however, vetoed the measure, explaining that there was no need for a military bill during peacetime, “nor can any good reason be advanced why, as a permanent establishment, it should be founded for one class or color of our people more than another” (doc. 38). Most ominously, Johnson called into question the legality of Congress’s ongoing exclusion of the Southern state representatives:

8

On February 20, 1866, the Senate failed by two votes to reach the two-­thirds majority required to override a presidential veto (doc. 39). As Congress moved forward on the Civil Rights Bill and the proposed amendments, it was aware that successful passage of either would require overcoming a block of Democratic and conservative Republican opposition and gaining the support of two-­thirds of both houses. On March 1, 1866, having just postponed its discussion of Bingham’s proposed amendment, the House now considered the proposed Civil Rights Bill. Introduced by Iowa representative James Wilson (chair of the House Judiciary Committee), the bill had undergone some changes since its first introduction in the Senate. Instead of protecting all “inhabitants” of the several states, the bill now protected only United States citizens. According to Wilson, “This [change] is intended to confine the operation of this bill to citizens of the United States, instead of extending it to the inhabitants of the several States, as there seems to be some doubt concerning the power of Congress to extend this protection to such inhabitants as are not citizens” (doc. 43). The bill now also included a citizenship clause declaring “[t]hat all persons born in the United States and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens of the United States without distinction of color.” According to Wilson, wavering Republicans ought not to be deterred by the bill’s reference to equal “civil rights and immunities.” These terms had a limited meaning and did not include either the rights of suffrage or the right to integrated schools:

I n t r o du c t i o n t o Pa r t 1 A

What do these terms mean? Do they mean that in all things civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed. Do they mean that all citizens shall vote in the several States? No; for suffrage is a political right which has been left under the control of the several States, subject to the action of Congress only when it becomes necessary to enforce the guarantee of a republican form of government. Nor do they mean that all citizens shall sit on the juries, or that their children shall attend the same schools. These are not civil rights or immunities. Well, what is the meaning? What are civil rights? I understand civil rights to be simply the absolute rights of individuals, such as—“The right of personal security, the right of personal liberty, and the right to acquire and enjoy property.” “Right itself, in civil society, is that which any man is entitled to have, or to do, or to require from others, within the limits of prescribed law.”—Kent’s Commentaries, vol. 1, p. 199. (doc. 43)

John Bingham opposed the proposed bill and maintained that until the country ratified an amendment such as the one he had recently put forward, Congress had no authority to pass this kind of civil rights legislation. In his March 9, 1866, speech opposing the Civil Rights Act, Bingham explained, “The Constitution does not delegate to the United States the power to punish offenses against the life, liberty, or property of the citizen in the States, nor does it prohibit that power to the States, but leaves it as the reserved power of the States, to be by them exercised. . . . I am with [Wilson] in an earnest desire to have the bill of rights in your Constitution enforced everywhere. But I ask that it be enforced in accordance with the Constitution of my country” (doc. 48). Despite Bingham’s continued opposition, both houses passed the Civil Rights Bill, though not before removing from it the phrase “civil rights” in order to avoid what Wilson called “a latitudinarian construction not intended” (doc. 49). The question now became whether President Johnson would veto the Civil Rights Bill just as he had the Freedmen’s Bureau Bill—a veto that the Senate had failed to override by two votes. In a move reflecting the hardball political tactics of the moment, while President Johnson considered whether to sign the bill, the Senate considered whether to “retroactively exclude” New Jersey Democratic senator John

Stockton on the grounds of election fraud (doc. 50).1 On March 27, 1866, the same day the Senate received word that Johnson had vetoed the Civil Rights Bill, that body voted twenty-­three to twenty to remove Senator Stockton (doc. 52). A few days later, the Senate voted thirty-­ three to fifteen to override Johnson’s veto of the Civil Rights Bill, succeeding by a single vote (doc. 53). The House quickly followed suit and—once again without the support of John Bingham—voted to override Johnson’s veto on April 7, 1866 (doc. 54). Although John Bingham failed to convince his colleagues that the amendment should precede the Act, his opposition nevertheless stung. Democrats used Bingham’s arguments as evidence that the Civil Rights Act was unconstitutional (see, e.g., doc. 40). Complained Ohio representative William Lawrence, “The speech of my distinguished colleague, [Mr. Bingham, March 9,] has been extensively published in a mode to mislead the public judgment” (doc. 54). Some supported the bill despite their suspicion that Bingham was correct that the current Constitution reserved to the states the power to protect “property, liberty and life” and congressional protection first required a constitutional amendment (doc. 46). Democratic critics outside of Congress decried the entire effort to enforce the equal rights of person and property as blatantly unconstitutional. In an essay titled “The Civil Rights Bill,” written on April 12 and published on May 8 in the Daily National Intelligencer, S. S. Nicholas complained: The bill of rights, or what are termed the guarantees of liberty, contained in the Federal Constitution, have none of them any sort of application to or bearing upon the State governments, but are solely prohibitions or restrictions upon the Federal Government. The recent attempt in Congress to treat them as guaranties against the State governments, with an accompanying incidental power to enforce the guaranties, is a surprising evidence of stolid ignorance of Constitutional law, or of a shameless effort to impose upon the ignorant. (doc. 55)

As of mid-­April, although Congress had managed to pass the Civil Rights Bill, the remainder of the Republicans’ reconstruction agenda was in disarray. The Freedmen’s Bureau Bill had failed, the apportionment amendment had been defeated in the Senate, and con-

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1. See also doc. 1, in which the Senate notes possible problems with Stockton’s credentials.

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sideration of Bingham’s equal rights amendment had been postponed by the House. Even the Civil Rights Act faced an uncertain future; federal courts might decide that Bingham was correct and that the Act exceeded Congress’s constitutional powers. Most of all, there was the unresolved problem of Southern state representation. The former rebel states had done all that had been officially asked of them—how long could Republicans continue to exclude them from Congress without risking electoral punishment in the coming fall elections? Word of a potential breakthrough emerged on April 16, 1866, when newspapers reported that the Joint Committee had received a multipart amendment from Indiana civil rights advocate Robert Dale Owen (doc. 56). On April 21, 1866, Thaddeus Stevens announced to the Joint Committee that “he had a plan of reconstruction, one not of his own framing, but which he should support” (doc. 57). Owen’s proposal contained provisions on black suffrage, congressional apportionment, the protection of civil rights, and the repudiation of the rebel states’ debts. It also declared that “the States lately in insurrection” would not be readmitted until they had voted in favor of the proposed amendment. Over the next week, the committee considered multiple versions of the Owen proposal. Ultimately, the committee replaced guaranteed black suffrage with an apportionment provision that proportionately penalized the exclusion of otherwise-­qualified male voters. At Bingham’s request, the committee also replaced Owen’s equal “civil rights” provision with a provision protecting the “privileges or immunities of citizens of the United States” and providing all persons due process protections in life, liberty, and property and equal protection of the laws (doc. 59). On April 28, the Joint Committee completed its work and voted twelve to three to submit to Congress the following five-­sectioned amendment along with accompanying bills establishing the terms for readmission:

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 twenty-­one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of male citizens shall bear to the whole number of such male citizens not less than twenty-­ one years of age. Sec. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States. Sec. 4. Neither the United States nor any State shall assume or pay any debt or obligation already incurred, or which may hereafter be incurred, in aid of insurrection or of war against the United States, or any claim for compensation for loss of involuntary service or labor. Sec. 5. The Congress shall have power to enforce by appropriate legislation the provisions of this article. (doc. 60)

Introduced by Thaddeus Stevens on April 30, the House debated the amendment for three days, from May 8 to May 10, 1866 (docs. 60 and 62–63). According to Stevens, the proposal “falls far short of my wishes, but it fulfills my hopes. I believe it is all that can be obtained in the present state of public opinion” (doc. 62). As far as the rights listed in Section One were concerned, “[t]hey are all asserted, in some form or other, in our Declaration or organic law.” However, because “the Constitution limits only the action of Congress, and is not a limitation on the States,” this provision “supplies that defect” (doc. 62). Section Two, Stevens declared, was “the most important in the article.” According to Stevens, “It fixes the basis of representation in Congress. If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. The effect of this provision will be either to compel the States to grant universal suffrage or so to

Article —. Sec. 1. 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. Sec. 2. Representatives shall be apportioned

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shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive” (doc. 62). Although, Stevens lamented, this provision was “not as good as the one we sent to death in the Senate,” it was nevertheless “a short step forward.” Taking aim at Senator Sumner and the radical Republicans who had helped defeat the earlier and stronger apportionment amendment, Stevens demanded that “the murderers must answer to the suffering race. I would not have been the perpetrator. A load of misery must sit heavy on their souls.” Finally, anticipating resistance to the third section with a four-­year disfranchisement of Southerners who supplied “aid or comfort” to the rebellion, Stevens declared that his “only objection to it is that it is too lenient. . . . Still I will move no amendment, nor vote for any, lest the whole fabric should tumble to pieces.” Republicans uniformly spoke in favor of the multipart constitutional amendment. A number of members described Section One as constitutionally entrenching the same rights as those protected by the Civil Rights Act (see, e.g., doc. 62). As expected, Democrats opposed the amendment, citing both its interference with matters reserved to the states and what Democrats called its undisguised effort to impose black suffrage on the South (see, e.g., doc. 63). Some Republicans spoke out against the third section, claiming that it would be impossible to enforce and might be successfully attacked by Democrats as a partisan Republican effort to gain an advantage in the next presidential election (see, e.g., doc. 62). In reply, Stevens insisted that unless supporters of the rebellion were disfranchised, “[t]hat side of the House will be filled with yelling secessionists and hissing copperheads. Give us the third section or give us nothing” (doc. 63). In the end, whatever their concerns about particular provisions, Republicans embraced the proposal as a whole, and on May 10, 1866, the House passed the amendment by a vote of 128 to 37, with 19 members abstaining (doc. 63). Two weeks later, the Senate debated the proposed amendment. On May 23, 1866, Joint Committee member Senator Jacob Howard, standing in for an ailing William Pitt Fessenden, introduced the amendment to his colleagues (doc. 64). In a widely published speech (see, e.g., doc. 65), Howard walked his colleagues through each section of the proposal and explained how each of the provisions reflected the “views and motives” of the Joint Committee. Although scholars have long studied

Howard’s speech for clues regarding the original understanding of the Fourteenth Amendment, readers should note that Howard was not discussing what became the final version of the amendment. Congress had yet to add the citizenship clause, and the proposed third section would later be completely removed and replaced. Beginning with the Privileges or Immunities Clause of Section One, Howard pointed to the “privileges and immunities” of Article IV as well as the “personal rights guarantied and secured by the first eight amendments of the Constitution” as examples of national privileges and immunities protected by the clause. Although these provisions were included in the original Constitution, they “[stood] simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect,” and which the states were “not restrained from violating.” Section One would “restrain the power of the States and compel them at all times to respect these great fundamental guarantees,” and Section Five granted Congress “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” (doc. 64). As for the due process and equal protection clauses, these “abolish[ ] all class legislation in the States and do[ ] away with the injustice of subjecting one caste of persons to a code not applicable to another.” No longer would it be the case “when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States.” Turning to Section Two, Howard was “sorry to be obliged to acknowledge” that this section did not “recognize, much less secure, the right of suffrage to the colored race.” Although this would have been Howard’s preference, there was little chance such a proposal would be ratified by the states. Instead, the “second section leaves the right to regulate the elective franchise still with the States, and does not meddle with that right.” However, since the “three-­fifths principle has ceased in the destruction of slavery,” there was a danger that emancipation might “increase the number of Representatives from the once slave-­holding States by nine or ten.” According to Howard, “The committee thought this should no longer be permitted, and they thought it wiser to adopt a general principle applicable to all the States alike, namely, that where a State excludes any part of its male citizens from the elective franchise, it shall 11

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lose Representatives in proportion to the number so excluded; and the clause applies not to color or to race at all, but simply to the fact of the individual exclusion.” As for the third section, Howard had “but little to say” other than the fact that he had opposed it in the Joint Committee and that he did not believe it would be “of any practical benefit to the country. It will not prevent rebels from voting for members of the several State Legislatures.” On the other hand, Howard found the fourth section uncontroversial, “tak[ing] it for granted that no member of this body would oppose the adoption of this section of the amendment,” nor would “the people of the United States [ ] object to declaring that the whole of the rebel debt shall be eternally repudiated and extinguished—a debt contracted in the prosecution of the most wicked war with which the earth was ever cursed.” Finally, Howard considered the fifth and final section “a very simple one” that “casts upon Congress the responsibility of seeing 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.” In the debates that followed, the Senate removed the broadly criticized original third section and replaced it with the following:

Act, “which was the forerunner of this constitutional amendment, and to give validity to which this constitutional amendment is brought forward, and which without this constitutional amendment to enforce it has no validity so far as this question is concerned” (doc. 67). Doolittle’s comment implied that John Bingham’s proposed Section One of the Fourteenth Amendment was a post hoc effort to legalize an unconstitutional Civil Rights Act. His remarks were met with an immediate objection. According to Joint Committee chairman William Pitt Fessenden, “There is not one word of correctness in all that he is saying, not a particle, not a scintilla, not the beginning of truth.” As Fessenden stated: [W]hatever may have been Mr. Bingham’s motives in bringing [the initial version of Section One] forward, he brought it forward some time before the civil rights bill was considered at all and had it referred to the committee, and it was discussed in the committee long before the civil rights bill was passed. Then I will say to him further, that during all the discussion in the committee that I heard nothing was ever said about the civil rights bill in connection with that. It was placed on entirely different grounds. (doc. 67)

Sec. 3. No person shall be a Senator or Representative in Congress, or an elector of President and 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. (doc. 66)

The Senate also proposed adding an opening sentence to Section One declaring “All persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and of the States wherein they reside” (doc. 66). According to Jacob Howard, who had moved for the clause’s addition, “This amendment which I have offered is simply declaratory of what I regard as the law of the land already” (doc. 67). Senator James Doolittle suggested the language be changed to mirror the opening sentence of the Civil Rights

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A few Democrats and radical Republicans criticized the proposed amendment as either too strong or too weak. Democratic Senators insisted the new version of Section Three was unduly punitive toward Southerners who considered their actions constitutional (doc. 67) and that the proposal as a whole infringed on the rights of Southern states—states that Republicans had wrongly excluded from Congress (doc. 69). Reverdy Johnson unsuccessfully tried to strike the Privileges or Immunities Clause from the amendment “simply because I do not understand what will be the effect of that” (doc. 72). Radical Republicans, on the other hand, lamented the amendment’s failure to grant black suffrage. According to Missouri senator John B. Henderson, directly granting freedmen the right of suffrage would render the rest of the amendment unnecessary; said Henderson, “Let all have a voice in making the law and the popular heart will execute it, because the liberty of all consists in its enforcement. It is only where political power is in the hands of a favored few that oppression can be practiced. It is only where oppression exists that the agents of a superior power are needed for protection. Give the negro the ballot and he will take care of himself, because his interest requires it” (doc. 72).

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On June 8, 1866, the Senate passed its amended version of the Fourteenth Amendment with a vote of thirty-­ three to eleven and sent the proposal back to the House for concurrence. That same day, the majority of the Joint Committee on Reconstruction issued their long-­ awaited report, with Reverdy Johnson, Andrew Rogers, and Henry Grider submitting the dissenting “Views of the Minority” (doc. 73). The majority report, in essence, provides a defense of the Thirty-­Ninth Congress’s decision to exclude representatives from the provisional Southern governments prior to constitutional and legislative reform. The report concludes:

to be, States of the Union.” In words that would become a theme for Democrats in the upcoming congressional election season, the minority declared that “so far [Southern states] are denied that right which the Constitution properly esteems as the security of all the others—that right, without which government is anything but a republic—is indeed but a tyranny—the right of having a voice in the legislative department, whose laws bind them in person and in property;—this, it is submitted, is a state of things without example in a representative republican government; and Congress, as long as it denies this right, is a mere despotism.” On June 13, 1866, the House voted on the Senate’s amended version of the Fourteenth Amendment (doc. 74). In his final remarks on the proposal, Thaddeus Stevens wished that Congress had done more than simply “patch[ ] up the worst portions of the ancient edifice.” Although Stevens saw “much good in the proposition,” he did not “pretend to be satisfied with it.” Nevertheless, Stevens encouraged his colleagues to pass the amendment, stating, “I am anxious for its speedy adoption, for I dread delay. The danger is that before any constitutional guards shall have been adopted Congress will be flooded by rebels and rebel sympathizers. . . . Hence, I say, let us no longer delay; take what we can get now, and hope for better things in further legislation; in enabling acts or other provisions.” The House passed the amendment on a vote of 120 to 32 (doc. 74). Although both President Buchanan and President Lincoln had signed proposed amendments before submitting them to the states for ratification, the clerk of the House concluded that no such signature was necessary and that “the proposed amendment abolishing slavery was submitted by inadvertence to President Lincoln for his signature” (doc. 75). President Johnson did not dispute the issue and, on June 16, Secretary of State William Seward transmitted the amendment to “the Governors of the several States” (doc. 76). However, in his message reporting this action to Congress, President Johnson characterized his transmission as “purely ministerial, and in no sense whatever committing the Executive to an approval or a recommendation of the amendment to the State Legislatures or to the people.” “On the contrary,” Johnson wrote,

I. That the States lately in rebellion were, at the close of the war, disorganized communities, without civil government, and without constitutions or other forms, by virtue of which political relations could legally exist between them and the Federal Government. II. That Congress cannot be expected to recognize as valid the election of representatives from disorganized communities, which, from the very nature of the case, were unable to present their claim to representation under those established and recognized rules, the observance of which has been hitherto required. III. 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; a just equality of representation; protection against claims founded in rebellion and crime; a temporary restoration of the right of suffrage to those who have not actively participated in the efforts to destroy the Union and overthrow the Government, and the exclusion from positions of public trust, at least, a portion of those whose crimes have proved them to be enemies to the Union, and unworthy of public confidence.

A minority of the Joint Committee issued their own report, which mocked as incoherent the majority’s refusal to engage with the question of whether the Southern states were in or out of the Union. If they were out, it made no sense to include them in the group of states allowed to vote on a constitutional amendment (as had been done for the Thirteenth and was planned for the Fourteenth). The fact “of such a submission concedes that the Southern States are, and never ceased

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a proper appreciation of the letter and spirit of the Constitution, as well as of the interests of national order, harmony, and union, and a due deference for an enlightened public judgment, may at this time

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well suggest a doubt whether any amendment to the Constitution ought to be proposed by Congress and pressed upon the Legislatures of the several States for final decision until after the admission of such loyal Senators and Representatives of the now unrepresented States as have been or as may hereafter be chosen in conformity with the Constitution and laws of the United States.

Representatives Donald C. McRuer, San Francisco William Higby, Calaveras John Bidwell, Chico

Connecticut Senators James Dixon, Norwich La Fayette S. Foster, Hartford Representatives Henry C. Deming, Hartford Samuel L. Warner, Middletown Augustus Brandegee, New London John H. Hubbard, Litchfield

The message continued a theme Johnson first announced in his message accompanying his veto of the Freedmen’s Bureau Bill: there was reason to doubt the legal status of the “rump” Republican Congress and its authority to propose major changes in national policy and law. In the coming months, Johnson would “swing around the circle,” opposing the Fourteenth Amendment, and call upon the country to rebuke the Republican Congress in the fall elections of 1866. Those elections would serve as a national referendum on the legality of the proposal and the necessity of a Fourteenth Amendment.

Delaware Senators George Read Riddle, Wilmington Willard Saulsbury, Georgetown Representatives John A. Nicholson, Dover

The Thirty-­Ninth Congress

Florida Senators Vacant2 Vacant3 Representatives Vacant

Membership*

Alabama Senators Vacant Representatives1 Vacant

Georgia Senators Vacant Representatives Vacant

Arkansas Senators Vacant Representatives Vacant

Illinois Senators Lyman Trumbull, Chicago Richard Yates, Jacksonville Representatives John Wentworth, Chicago John F. Farnsworth, St. Charles

California Senators John Conness, San Francisco James A. McDougall, Sacramento * Biographical Directory of the United States Congress, 1774– 2005 (United States Congress, 2005), 170–73. 1. Credentials of Thomas J. Foster as member-­elect were presented to the House on January 10, 1867, but were not acted upon.

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2. On January 19, 1866, William Marvin presented credentials as a senator-­elect for the term ending March 3, 1867, which were ordered to lie on the table and no further action taken thereon. 3. On June 6, 1866, Wilkinson Call presented credentials as the senator-­elect for the term ending March 3, 1869, which were ordered to lie on the table and no further action taken thereon.

T h e T h i r t y - N i nt h C o n g r e s s : M e m b e r s h i p

Elihu B. Washburne, Galena Abner C. Harding, Monmouth Ebon C. Ingersoll, Peoria Burton C. Cook, Ottawa Henry P. H. Bromwell, Charleston Shelby M. Cullom, Springfield Lewis W. Ross, Lewistown Anthony Thornton, Shelbyville Samuel S. Marshall, McLeansboro Jehu Baker, Belleville Andrew J. Kuykendall, Vienna At large—Samuel W. Moulton, Shelbyville

John A. Kasson, Des Moines Asahel W. Hubbard, Sioux City Kansas Senators Samuel C. Pomeroy, Atchison James H. Lane,8 Lawrence Edmund G. Ross,9 Lawrence Representatives Sidney Clarke, Lawrence

Kentucky Senators Garrett Davis, Paris James Guthrie, Louisville Representatives Lawrence S. Trimble, Paducah Burwell C. Ritter, Hopkinsville Henry Grider,10 Bowling Green Elijah Hise,11 Russellville Aaron Harding, Greensburg Lovell H. Rousseau, Louisville Green Clay Smith,12 Covington Andrew H. Ward,13 Cynthiana George S. Shanklin, Nicholasville William H. Randall, London Samuel McKee, Mount Sterling

Indiana Senators Henry S. Lane, Crawfordsville Thomas A. Hendricks, Indianapolis Representatives William E. Niblack, Vincennes Michael C. Kerr, New Albany Ralph Hill, Columbus John H. Farquhar, Brookville George W. Julian, Centerville Ebenezer Dumont, Indianapolis Daniel W. Voorhees,4 Terre Haute Henry D. Washburn,5 Clinton Godlove S. Orth, La Fayette Schuyler Colfax, South Bend Joseph H. Defrees, Goshen Thomas N. Stillwell, Andreson

Louisiana Senators Vacant Representatives Vacant14

Iowa Senators James Harlan,6 Mount Pleasant Samuel J. Kirkwood,7 Iowa City James W. Grimes, Burlington Representatives James F. Wilson, Fairfield Hiram Price, Davenport William B. Allison, Dubuque Josiah B. Grinnell, Grinnell

4. Served until February 23, 1866; succeeded by Henry D. Washburn, who contested his election. 5. Successfully contested the election of Daniel W. Voorhees and took his seat February 23, 1866. 6. Resigned May 15, 1865, having been appointed secretary of the interior. 7. Elected to fill vacancy caused by the resignation of James Harlan and took his seat January 24, 1866.

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8. Died July 11, 1866. 9. Appointed to fill vacancy caused by the death of James H. Lane and took his seat July 25, 1866; he was subsequently elected. 10. Died September 14, 1866. 11. Elected to fill vacancy caused by the death of Henry Grider and took his seat December 3, 1866. 12. Resigned in 1866. 13. Elected to fill vacancy caused by the resignation of Green Clay Smith and took his seat December 3, 1866. 14. Credentials of Jacob Barker, Robert C. Wickliffe, Louis St. Martin, John E. King, and John Ray as members-­elect were presented and referred to the Committee on Reconstruction; no further action was taken.

Pa r t 1 . T h e F ou r t e e n t h A m e n dm e n t

Maine Senators Lot M. Morrill, Augusta William Pitt Fessenden, Portland Representatives John Lynch, Portland Sidney Perham, Paris James G. Blaine, Augusta John H. Rice, Foxcroft Frederick A. Pike, Calais

Minnesota Senators Alexander Ramsey, St. Paul Daniel S. Norton, Winona Representatives William Windom, Winona Ignatius Donnelly, Hastings Mississippi Senators Vacant Representatives Vacant

Maryland Senators Reverdy Johnson, Baltimore John A. J. Creswell, Elkton Representatives Hiram McCullough, Elkton John L. Thomas, Jr., Baltimore Charles E. Phelps, Baltimore Francis Thomas, Frankville Benjamin G. Harris, Leonardtown

Missouri Senators John B. Henderson, Louisiana B. Gratz Brown, St. Louis Representatives John Hogan, St. Louis Henry T. Blow, St. Louis Thomas E. Noell, Perryville John R. Kelso, Springfield Joseph W. McClurg, Linn Creek Robert T. Van Horn, Kansas City Benjamin F. Loan, St. Joseph John F. Benjamin, Shelbyville George W. Anderson, Louisiana

Massachusetts Senators Charles Sumner, Boston Henry Wilson, Natick Representatives Thomas D. Eliot, New Bedford Oakes Ames, North Easton Alexander H. Rice, Boston Samuel Hooper, Boston John B. Alley, Lynn Nathaniel P. Banks, Waltham George S. Boutwell, Groton John D. Baldwin, Worcester William B. Washburn, Greenfield Henry L. Dawes, Pittsfield

Michigan Senators Zacharia Chandler, Detroit Jacob M. Howard, Detroit Representatives Fernando C. Beaman, Adrian Charles Upson, Coldwater John W. Longyear, Lansing Thomas W. Ferry, Grand Haven Rowland E. Trowbridge, Birmingham John F. Driggs, East Saginaw

Nebraska Senators John M. Thayer,15 Omaha Thomas W. Tipton,16 Brownville Representatives Turner M. Marquette,17 Plattsmouth Nevada Senators James W. Nye, Carson City William M. Stewart, Virginia City Representatives Delos R. Ashley, Virginia City

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15. Elected but did not take his seat until March 4, 1867. 16. Elected but did not take his seat until March 4, 1867. 17. Took his seat March 2, 1867.

T h e T h i r t y - N i nt h C o n g r e s s : M e m b e r s h i p

New Hampshire Senators Daniel Clark,18 Manchester George G. Fogg,19 Concord Aaron H. Cragin, Lebanon Representatives Gilman Marston, Exeter Edward H. Rollins, Concord James W. Patterson, Hanover

John W. Chanler, New York City James Brooks,26 New York City William E. Dodge,27 New York City William A. Darling, New York City William Radford, Yonkers Charles H. Winfield, Goshen John H. Ketcham, Dover Edwin N. Hubbell, Coxsackie Charles Goodyear, Schoharie John A. Griswold, Troy Orlando Kellogg,28 Elizabethtown Robert S. Hale,29 Elizabethtown Calvin T. Hulburd, Brasher Falls James M. Marvin, Saratoga Springs Demas Hubbard, Smyrna Addison H. Laflin, Herkimer Roscoe Conkling, Utica Sidney T. Holmes, Morrisville Thomas T. Davis, Syracuse Theodore M. Pomeroy, Auburn Daniel Morris, Penn Yan Giles W. Hotchkiss, Binghamton Hamilton Ward, Belmont Roswell Hart, Rochester Burt Van Horn, Newfane James M. Humphrey, Buffalo Henry Van Aernam, Franklinville

New Jersey Senators William Wright,20 Newark Frederick T. Frelinghuysen,21 Newark John P. Stockton,22 Trenton Alexander G. Cattell,23 Camden Representatives John F. Starr, Camden William A. Newell, Allentown Charles Sitgreaves, Phillipsburg Andrew J. Rogers, Newton Edwin R. V. Wright, Hudson City New York Senators Ira Harris, Albany Edwin D. Morgan, New York City Representatives Stephen Tabor, Roslyn Teunis G. Bergen, New Utrecht James Humphrey,24 Brooklyn John W. Hunter,25 Brooklyn Morgan Jones, New York City Nelson Taylor, New York City Henry J. Raymond, New York City

18. Resigned July 27, 1866. 19. Appointed to fill vacancy caused by the resignation of Daniel Clark and took his seat December 3, 1866. 20. Died November 1, 1866. 21. Appointed to fill vacancy caused by the death of William Wright and took his seat December 3, 1866; he was subsequently elected. 22. Served until March 27, 1866, when the Senate voted to retroactively exclude him from the Senate. 23. Elected to fill vacancy caused by the Senate declaring the seat of John P. Stockton vacant. 24. Died June 16, 1866. 25. Elected to fill vacancy caused by the death of James Humphrey and took his seat December 4, 1866.

North Carolina Senators Vacant Representatives30 Vacant

Ohio Senators John Sherman, Jefferson Benjamin F. Wade, Mansfield

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26. Served until April 7, 1866, and was succeeded by William E. Dodge, who contested his election. 27. Successfully contested the election of James Brooks and took his seat April 7, 1866. 28. Died August 24, 1865. 29. Elected to fill vacancy caused by the death of Orlando Kellogg and took his seat December 3, 1866. 30. Credentials of Alexander H. Jones and Lewis Hawes were presented and referred to the Joint Committee on Reconstruction, but no further action was taken.

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Alexander H. Coffroth,31 Somerset William H. Koontz,32 Somerset Abraham A. Barker, Edenburg Stephen F. Wilson, Wellsboro Glenni W. Scofield, Warren Charles V. Culver, Franklin John L. Dawson, Brownsville James K. Moorhead, Pittsburgh Thomas Williams, Pittsburgh George V. Lawrence, Monongahela City

Representatives Benjamin Eggleston, Cincinnati Rutherford B. Hayes, Cincinnati Robert C. Schenck, Dayton William Lawrence, Bellefontaine Frank C. Le Blond, Celina Reader W. Clarke, Batavia Samuel Shellabarger, Springfield James R. Hubbell, Delaware Ralph P. Buckland, Fremont James M. Ashley, Toledo Hezekiah S. Bundy, Reeds Mill William E. Finck, Somerset Columbus Delano, Mount Vernon Martin Welker, Wooster Tobias A. Plants, Pomeroy John A. Bingham, Cadiz Ephraim R. Eckley, Carrolton Rufus P. Spalding, Cleveland James A. Garfield, Hiram

Rhode Island Senators Henry B. Anthony, Providence William Sprague, Providence Representatives Thomas A. Jenckes, Providence Nathan F. Dixon, Westerly South Carolina Senators Vacant Representatives Vacant

Oregon Senators James W. Nesmith, Salem George H. Williams, Portland Representative at Large James H. D. Henderson, Eugene City

Tennessee33 Senators Joseph S. Fowler,34 Nashville David T. Patterson,35 Greeneville Representatives Nathaniel G. Taylor,36 Happy Valley Horace Maynard,37 Knoxville William B. Stokes,38 Liberty Edmund Cooper,39 Shelbyville William B. Campbell,40 Lebanon

Pennsylvania Senators Charles R. Buckalew, Bloomsburg Edgar Cowan, Greensburg Representatives Samuel J. Randall, Philadelphia Charles O’Neill, Philadelphia Leonard Myers, Philadelphia William D. Kelley, Philadelphia M. Russell Thayer, Chestnut Hill Benjamin M. Boyer, Norristown John M. Broomall, Media Sydenham E. Ancona, Reading Thaddeus Stevens, Lancaster Myer Strouse, Pottsville Philip Johnson, Easton Charles Denison, Wilkes-­Barre Ulysses Mercur, Towanda George F. Miller, Lewisburg Adam J. Glossbrenner, York

31. Served until July 18, 1866, when he was succeeded by William H. Koontz, who contested the election. 32. Successfully contested the election of Alexander H. Coffroth and took his seat July 18, 1866. 33. Readmitted to representation by joint resolution on July 24, 1866. 34. Took his seat July 25, 1866; term to expire March 3, 1871. 35. Took his seat July 28, 1866; term to expire March 3, 1869. 36. Took his seat July 24, 1866. 37. Took his seat July 24, 1866. 38. Took his seat July 24, 1866. 39. Took his seat July 25, 1866. 40. Took his seat December 3, 1866. 18

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Samuel M. Arnell,41 Columbia Isaac R. Hawkins,42 Huntingdon John W. Leftwich,43 Memphis

Wisconsin Senators James R. Doolittle, Racine Timothy O. Howe, Green Bay Representatives Halbert E. Paine, Milwaukee Ithamar C. Sloan, Janesville Amasa Cobb, Mineral Point Charles A. Eldridge, Fond du Lac Philetus Sawyer, Oshkosh Walter D. McIndoe, Wausau

Texas Senators Vacant Representatives Vacant

Vermont Senators Solomon Foot,44 Rutland George F. Edmunds,45 Burlington Jacob Collamer,46 Woodstock Luke P. Poland,47 St. Johnsbury Representatives Frederick E. Woodbridge, Vergennes Justin S. Morrill, Strafford Portus Baxter, Derby Line

1 US Senate, Opening Day of Thirty-­Ninth Congress December 4, 1865*

This being the day prescribed by the Constitution of the United States for the meeting of Congress, the Senate assembled in the Senate Chamber, in the Capitol, at the city of Washington. ... The PRESIDENT pro tempore [Hon. La Fayette S. Foster] at twelve o’clock called the Senate to order. ... Mr. WRIGHT. Mr. President, I desire to present the credentials of Hon. John P. Stockton, of New Jersey, elected a Senator by the Legislature of that State to serve for six years from the 4th of March last. I ask that the credentials be read. ... Mr. COWAN. Before the oaths are administered, I beg leave to present the protest of several members of the Legislature of New Jersey, protesting against the right of Mr. Stockton to take his seat here as a Senator. I do not desire to raise the question as to whether he may not be sworn, because I believe his credentials are prima facie sufficient for that purpose, but I desire that these papers may be laid before the Senate and referred to the Committee on the Judiciary when that committee shall be organized, in order that the prayer of the

Virginia Senators Vacant Representatives Vacant

West Virginia Senators Peter G. Van Winkle, Parkersburg Waitman T. Willey, Morgantown Representatives Chester D. Hubbard, Wheeling George R. Latham, Grafton Kellian V. Whaley, Point Pleasant

41. Took his seat December 3, 1866. 42. Took his seat December 3, 1866. 43. Took his seat July 25, 1866. 44. Died March 28, 1866. 45. Appointed to fill vacancy caused by the death of Solo­ mon Foot and took his seat April 5, 1866; he was subsequently elected. 46. Died November 9, 1865. 47. Appointed to fill vacancy caused by the death of Jacob Collamer and took his seat December 4, 1865; he was subsequently elected.

* Cong. Globe, 39th Cong., 1st Sess., 1 (Dec. 4, 1865). 19

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memorialists may be heard and such order taken upon it as the Senate in their wisdom may decree. The PRESIDENT pro tempore. The protest will be received. ... Mr. SUMNER submitted the following concurrent resolution declaratory of the adoption of the constitutional amendment abolishing slavery; which was ordered to lie on the table and be printed:

than three fourths of the Legislatures to which the proposition was made have ratified such amendment: Now, therefore, Be it resolved by the Senate, (the House of Representatives concurring,) That the amendment abolishing slavery has become, and is, a part of the Constitution of the United States.

2 US House, Opening Day of Thirty-­ Ninth Congress, Exclusion of Former Rebel States, Appointing Joint Committee on Reconstruction

Whereas the Congress, by a vote of two thirds of both Houses, did heretofore propose to the Legislatures of the several States, for ratification, an amendment to the Constitution in the following words, to wit:

“Article XIII “Sec. 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. “Sec. 2. Congress shall have power to enforce this article by appropriate legislation.”

December 4, 1865*

This being the day prescribed by the Constitution for the meeting of Congress, the members of the House of Representatives assembled in their Hall, and at twelve o’clock, m., were called to order by Hon. Edward McPherson, Clerk of the last House of Representatives. ... The roll was then called, . . . During the calling of the roll, when the Clerk had reached the name of Hon. William E. Niblack, of Indiana, Mr. MAYNARD rose and said: Mr. Clerk, I beg to say that in calling the roll of members— The CLERK. The Clerk will be compelled to object to any interruption of the call of the roll. Mr. MAYNARD. Does the Clerk decline to hear me? The CLERK. I decline to have any interruption of the call of the roll. The call of the roll was then concluded. The CLERK stated that, one hundred and seventy-­ six members having answered to their names, a quorum was present. Mr. MORRILL. I move that the House do now proceed to the election of a Speaker of the Thirty-­Ninth Congress. Mr. MAYNARD. Before that motion is put— Mr. STEVENS. I call the gentleman to order.

And whereas, at the time when such amendment was submitted as well as since, there were sundry States which, by reason of rebellion, were without Legislatures, so that, while the submission was made in due constitutional form, it was not, as it could not be, made to all the States, but to “the Legislatures of the several States,” in obedience both to the letter and spirit of the provision of the Constitution authorizing amendments, there being a less number of Legislatures of States than there were States; and whereas, since the Constitution expressly authorizes amendments to be made, any construction thereof which would render the making of amendments at times impossible, must violate both its letter and its spirit; and whereas, to require the ratification to be by States without Legislatures as well as by “the Legislatures of the States,” in order to be pronounced valid, would put it in the power of a long-­continued rebellion to suspend, not only the peace of the nation, but its Constitution also; and whereas, from the terms of the Constitution, and the nature of the case, it belongs to the two Houses of Congress to determine when such ratification is complete; and whereas more

* Cong. Globe, 39th Cong., 1st Sess., 3 (Dec. 4, 1865).

20

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ernor of that State as the Governor of Pennsylvania is Governor of the State of Pennsylvania. By what right has the Virginia delegation been excluded by the Clerk of the House? I wish the Clerk would tell me. He has given no reason for such exclusion, and I should be happy to yield the floor for a moment to enable him to state why both Tennessee and Virginia have been excluded from the list he has made. The CLERK. With the consent of the gentleman I will state that if it be the desire of the House to have my reasons, I will give them; but I have not felt justified or called upon to give any reasons; I have acted in accordance with my views of duty, and I am willing to let the record stand. Mr. STEVENS. It is not necessary. We know all. ... Mr. BROOKS. . . . We know all the reasons, says the gentleman from Pennsylvania, and we do not want to hear them recited. Why, this is not parliamentary propriety, if it is even decency. I should know but little if I had not the record before me of the resolution adopted by the Republican majority of this House, that Tennessee, Louisiana, and Virginia were to be excluded, and excluded without debate. ... Mr. STEVENS. I offer the following resolution, and call the previous question upon it:

The CLERK. The Clerk rules, as a matter of order, that he cannot recognize any gentleman whose name is not upon his roll. Mr. BROOKS. Mr. Clerk, I hope that motion will not prevail until it be settled who are members of this House—whether the honorable gentleman from Tennessee, [Mr. Maynard,] holding in his hand, I presume, the certificate of the Governor of that State, is entitled to be heard on his credentials or not. I trust that we shall not proceed to any revolutionary step like that without at least hearing from the honorable gentleman from Tennessee. For, if Tennessee is not in the Union, and has not been in the Union, and is not a loyal State, and the people of Tennessee are aliens and foreigners to this Union, by what right does the President of the United States usurp his place in the White House and in the capital of the country when an alien, as he must be, a foreigner, and not from a State in the Union? I trust there will not be such rapidity of motion as that proposed. I trust that the honorable gentleman from Tennessee will be permitted to be heard. For, if a precedent can be established by the Clerk, and he can make a rule to exclude members from the floor of this House by his mere arbitrary will, this then ceases to be a Congress, and the Clerk of the House, but a servant of the House, is omnipotent over its organization. Is not the State of Tennessee in the Union? ... Mr. Clerk, in the organization of the House it becomes necessary first to know who has a right to vote as to that organization. If the delegation from Tennessee—especially if the honorable gentleman from Tennessee, who would address the House if permitted by the Clerk, is not a loyal man and is not from a State in the Union, what man is loyal? In the darkest and most doubtful period of the war, when an exile from his own State, I heard his eloquent voice on the banks of the St. Lawrence arousing the people of my own State to discharge their duties to the country. Yet there are honorable gentlemen who will not allow him to be heard upon this floor, although holding in his hand a certificate from the Governor of the State of Tennessee. And then there is a State of Virginia which the Clerk has not read; I mean the old State of Virginia, and not Western Virginia—the State over which Governor Peirpoint presides, over which he has presided, and to which position he was elected during the war, whose loyalty no man doubts, and who is as much the Gov-

Resolved by the Senate and the House of Representatives in Congress assembled, That a joint committee of fifteen members shall be appointed, nine of whom shall be members of the House and six members of the Senate, who shall inquire into the condition of the States which formed the so-­called confederate States of America, and report whether they or any of them are entitled to be represented in either House of Congress, with leave to report at any time by bill or otherwise; and until such report shall have been made and finally acted upon by Congress, no member shall be received into either House from any of the said so-­called confederate States; and all papers relating to the representation of the said States shall be referred to the said committee without debate.

... The question was taken; and it was decided in the affirmative—yeas 133, nays 36, not voting 13; 21

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eigners. Congress shall provide for ascertaining the number of said voters. A true census of the legal voters shall be taken at the same time with the regular census.

3 US House, Thaddeus Stevens, Proposed Amendments

Equality before the Law.

December 5, 1865*

Mr. STEVENS also introduced the following joint resolution; which was read a first and second time, and ordered to be referred to the Committee on the Judiciary, when the same shall have been appointed:

Rebel Debt.

Mr. STEVENS introduced the following joint resolution; which was read a first and second time, and ordered to be referred to the Committee on the Judiciary, when the same shall have been appointed:

Resolved by the Senate and House of Representatives in Congress assembled, That the following amendment to the Constitution of the United States shall be proposed, and when ratified by the Legislatures of three fourths of the States shall be valid to all intents and purposes as part of the Constitution of the United States: Article XIII. All national and State laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race and color.

Resolved by the Senate and House of Representatives of the United States in Congress assembled, That the following amendment to the Constitution of the United States shall be proposed, and when ratified by the Legislatures of three fourths of the States shall be valid to all intents and purposes as part of the Constitution of the United States: Neither the United States nor any State in the Union shall ever assume or pay any part of the debt of the so-­called confederate States of America, or of any State, contracted to carry on war with the United States.

4 US House, John Bingham, Proposed Amendment

...

December 6, 1865†

Apportionment of Representation.

Mr. STEVENS also introduced the following joint resolution; which was read a first and second time, and ordered to be referred to the Committee on the Judiciary, when the same shall have been appointed:

Rebel Debt.

Mr. BINGHAM also introduced a joint resolution providing for an amendment to the Constitution of the United States forbidding the payment or assumption by the United States or by any State of any debt which has been or may hereafter be contracted in aid of any rebellion against the United States; which was read a first and second time, and ordered to be referred to the Committee on the Judiciary, when appointed, and to be printed.

Resolved by the House of Representatives, (the Senate concurring,) That the following amendment to the Constitution of the United States shall be proposed to the several States, and when ratified by the Legislatures of three fourths of the States shall be valid to all intents and purposes as part of the Constitution of the United States: Representatives shall be apportioned among the States which may be within the Union according to their respective legal voters; and for this purpose none shall be named as legal voters who are not either natural-­born citizens or naturalized for* Cong. Globe, 39th Cong., 1st Sess., 10 (Dec. 5, 1865).

Equality before the Law.

Mr. BINGHAM also introduced a joint resolution to amend the Constitution of the United States so as to empower Congress to pass all necessary and proper laws to secure to all persons in every State of the Union equal protection in their rights, life, liberty, and property;

22

† Cong. Globe, 39th Cong., 1st Sess., 14 (Dec. 6, 1865).

A. Drafting, doc. 5

which was read a first and second time, and ordered to be referred to the Committee on the Judiciary, when appointed, and to be printed.

confederate States; and all papers relating to the representation of said States shall be referred to the said committee without debate.”

... Mr. President, the words proposed to be stricken out refer to the joint committee of the two Houses of Congress matters which the Constitution confides to each House separately. Each House is made by the Constitution the judge of the elections, returns, and qualifications of its own members. Under this resolution, I apprehend, it would be necessary to refer to this joint committee the credentials of persons claiming seats in this body, referring them not only to a committee composed in part of others than members of this body, but composed of a majority of others than members of this body. I know it may be argued that this contemplates the reference only of the question whether a State has a right to be represented, not the question whether a person claiming to represent it, and perhaps that construction might obtain; but at least the resolution, as it reads, is open to a doubtful construction, and that the Senate should avoid. ... The PRESIDENT pro tempore. The question is on concurring in the resolution as amended, upon which the yeas and nays have been ordered. The question being taken by yeas and nays, resulted—yeas 33, nays 11;†

5 US Senate, Appointing Joint Committee on Reconstruction December 12, 1865*

Mr. ANTHONY. I move that the Senate take up the resolution from the House of Representatives, appointing a committee to inquire into the condition of the States which formed the so-­called confederate States of America. The motion was agreed to; and the Senate proceeded to consider the following resolution from the House of Representatives:

Be it resolved by the Senate and House of Representatives in Congress assembled, That a joint committee of fifteen members shall be appointed, nine of whom shall be members of the House and six members of the Senate, who shall inquire into the condition of the States which formed the so-­called confederate States of America, and report whether they or any of them, are entitled to be represented in either House of Congress, with leave to report at any time, by bill or otherwise; and until such report shall have been made, and finally acted on by Congress, no member shall be received into either House from any of the said so-­called confederate States; and all papers relating to the representation of said States shall be referred to the said committee without debate.

... I move further to amend the resolution by striking out all after the word “otherwise.” The words proposed to be stricken out were read, as follows: “And until such report shall have been made, and finally acted on by Congress, no member shall be received into either House from any of the so-­called * Cong. Globe, 39th Cong., 1st Sess., 24 (Dec. 12, 1865).

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† [On December 13, 1865, the House of Representatives concurred in the amended resolution. See Cong. Globe, 39th Cong., 1st Sess., 47 (Dec. 13, 1865). —Ed.]

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6 Joint Committee on Reconstruction, Membership

7 US Senate, Freedmen’s Bureau Bill, Black Codes

Members on the part of the Senate.

Mr. WILSON. I move to take up Senate bill No. 9, to maintain the freedom of the inhabitants in the States declared in insurrection and rebellion by the proclamation of the President of the 1st of July, 1862. The motion was agreed to. ... The PRESIDENT pro tempore. The reading of the bill is asked for. It will be read. The Secretary read it, as follows:

1865–1867* Mr. “ “ “ “ and “

William P. Fessenden James W. Grimes, Ira Harris, Jacob M. Howard, Reverdy Johnson, George H. Williams,

Members on the part of the House of Rep’s. Mr. “ “ “ “ “ “ “ and “

Thaddeus Stevens Elihu B. Washburne, Justin S. Morrill, Henry Grider, John A. Bingham, Roscoe Conkling, George S. Boutwell, Henry T. Blow, Andrew J. Rogers,

December 13, 1865†

of Maine [Chair]. “ Iowa. “ New York. “ Michigan. “ Maryland. “ Oregon.

Be it enacted, &c., That all laws, statutes, acts, ordinances, rules, and regulations, of any description whatsoever, heretofore in force or held valid in any of the States which were declared to be in insurrection and rebellion by the proclamation of the President of the 1st of July, 1862, whereby or wherein any inequality of civil rights and immunities among the inhabitants of said States is recognized, authorized, established, or maintained, by reason or in consequence of any distinctions or differences of color, race, or descent, or by reason or in consequence of a previous condition or status of slavery or involuntary servitude of such inhabitants, be, and are hereby, declared null and void, and it shall be unlawful to institute, make, ordain, or establish, in any of the aforesaid States declared to be in insurrection and rebellion, any such law, statute, act, ordinance, rule, or regulation, or to enforce or to attempt to enforce the same.

of Penn’a. “ Illinois. “ Vermont. “ Kentucky. “ Ohio. “ New York. “ Massachusetts. “ Missouri. “ New Jersey.

... Mr. WILSON. Before the question is taken on the motion of reference, I desire very briefly to explain the bill and the reason for its introduction. The bill is based upon the proclamation of the President of July 1, 1862, which declared certain States to be in insurrection and rebellion. The proclamation of the President of the 22d of September, 1862, declaring emancipation, pledged the faith of the Government of the United States that

* Benjamin B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction, 39th Congress, 1865–67 (first published: Columbia University, 1914; Lawbook Exchange, 2005), 38–39. Subsequently referred to as Journal of the Joint Committee. 24

† Cong. Globe, 39th Cong., 1st Sess., 39–42 (Dec. 13, 1865).

A. Drafting, doc. 7

the executive government, including the Army and Navy, would maintain the freedom of the persons declared to be free; and this pledge was repeated in the proclamation of the 1st of January, 1863. The Government of the United States, therefore, stands pledged to three and a half millions of persons to maintain their freedom. Whatever differences of opinion may exist in regard to the right of suffrage, I am sure there can be no difference of opinion among honest and just men in regard to maintaining the civil rights and immunities of these freedmen; they should stand at any rate like the non-­voting white population in those States. It has been said that the slave codes and the laws of these States in regard to persons of color fell with slavery, but in fact those laws are being executed, and in some of them in the most merciless manner. In several of these States new laws are being framed containing provisions wholly inconsistent with the freedom of the freedmen. A bill is pending before the Legislature of South Carolina making these freedmen servants, providing that the persons for whom they labor shall be their masters, that the relation between them shall be the relation of master and servant. The bill, as originally reported, provided that the freedmen might be educated; but that provision has already been stricken out, and the bill now lies over waiting for events here. That bill makes the colored people of South Carolina serfs, a degraded class, the slaves of society. The Senate of Georgia, the telegraph tells us this morning, has passed a bill containing degrading and arbitrary provisions. It regulates contracts between master and servant. It provides that if over one month, the contract must be made in writing. Work hours, from sunrise to sunset. The servant is responsible for damaging the master’s property. Wages are forfeited by leaving. The employer may discharge servants for disobedience, drunkenness, immorality, or want of respect. Leaving services or enticing servants away is a misdemeanor, punishable by a fine of $500 or imprisonment for four months. In Mississippi the Legislature passed a bill in which it provided— “That if the laborer shall quit the service of the employer before expiration of his term of service, without just cause, he shall forfeit his wages for that year, up to the time of quitting. “That every civil officer shall, and every person may, arrest and carry back to his or her legal

25

employer any freedman, free negro, or mulatto, who shall have quit the service of his or her employer before the expiration of his term of service without good cause, and said officer or person shall be entitled to receive, for arresting and carrying back every deserting employé aforesaid, the sum of five dollars, and ten cents per mile from the place of arrest to the place of delivery, and the same shall be held by the employer, and held as a set off for so much against the wages of said deserting employé, provided that said arrested party after being so returned may appeal to a justice of the peace or member of the board of police of the county, who, on notice to the alleged employer, shall try summarily whether said appellant is legally employed by the alleged employer, and has good cause to quit said employer; either party shall have the right of appeal to the county court, pending which the alleged deserter shall be remanded to the alleged employer, or otherwise disposed of as shall be right and just, and the decision of the county court shall be final. ... “That if any person shall, or shall attempt to, persuade, entice, or cause any freedman, free negro, or mulatto to desert from the legal employment of any person before the expiration of his term of service, or shall employ any such deserting freedman, free negro, or mulatto, or shall give or sell to any such deserting freedman, free negro, or mulatto, any food, raiment, or other thing, he shall be guilty of a misdemeanor, and, upon conviction, he shall be fined not less than twenty-­five dollars and not more than two hundred dollars and the costs; and if said fine and costs shall not be immediately paid, the court shall sentence said convict to not exceeding two months’ imprisonment in the county jail, and he shall, moreover, be liable to the party injured in damages: Provided, If any person shall, or shall attempt to, persuade, entice, or cause any freedman, free negro, or mulatto, to desert from the legal employment of any person, with the view to employ said freedman, free negro, or mulatto without the limits of the State, such person, on conviction, shall be fined not less than fifty dollars and not more than five hundred dollars and the costs, and if said fine and costs shall not be immediately paid, the court shall sentence said convict to not exceeding six months’ imprisonment in the county jail.”

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This arbitrary and inhuman act makes the freedmen the slaves of society, and it is far better to be the slave of one man than to be the slave of arbitrary law. This act also forbids the leasing of lands or houses outside of the cities, thus making them landless and homeless. ... A bill is now pending in the Legislature of Louisiana, which provides— “That any adult freedman or woman shall furnish themselves with a comfortable home and visible means of support within twenty days after the passage of this act. “That any freedman or woman failing to obtain a home and support, as provided in the first section of this act, shall be immediately arrested by any sheriff or constable in any parish, or sheriff, constable, or police officer in any city or town in said parish where said freedman may be, and by them delivered over to the recorder of the parish in which they are arrested, and by him hired out by public advertisement to some citizen, being the highest bidder, for the remainder of the year in which they are hired. ... “That in case of the death of the employer, his heirs, or he who acquires his property, is based by the contract with the laborers in the condition the deceased was, and the laborer on his part is bound to the new proprietor according to the terms of the previous contract. In case of the laborer leaving his employer’s service without his consent, when taken will be assigned to labor on some public work without compensation until his employer reclaims him.”

... I have prepared this bill to declare these laws in the States in insurrection and rebellion null and void, and if the bill should pass, the Army and the Freedmen’s Bureau can arrest the execution of these arbitrary laws. . . . This bill is not based on the constitutional amendment, but on the fact that these States are in insurrection and rebellion. ... Mr. COWAN. I simply wish to say that I have not moved this reference* because I did not sympathize with the design or desire the attainment of the end con* [Earlier in the discussion Cowan moved the reference of the bill to the Judiciary Committee. —Ed.]

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templated by the Senator from Massachusetts. I am in favor, and exceedingly desirous that by some means or other the natural rights of all people in the country shall be secured to them, no matter what their color or complexion may be, and may be secured to them in such a way as that States themselves cannot hereafter wrest them away from them. I am in favor of the position that the courts of the country shall be open to everybody, Jews, Gypsies, Chinese, negroes, all men of every color and condition, and that they shall be competent as witnesses, unless excluded by crime or want of that religious belief which does exclude in some States of the Union; but I doubt whether the proper mode to attain that end is by legislation in Congress. I think the only way that it can be attained, and securely attained, is by an amendment of the Constitution, and I am in favor of that measure, and that I believe can be carried through during the next month. ... Mr. WILSON. ... I believe that the constitutional amendment has been adopted, and that under the second section of that amendment we have the power to pass not only a bill that shall apply these provisions to the rebel States, but to Kentucky, to Maryland, to Delaware, and to all the loyal States. But this bill is confined entirely to the States declared by the President to be in insurrection and rebellion, and applies to that population whom we have made free by presidential proclamation. ... Mr. SHERMAN. Mr. President, I sympathize heartily with the purpose of the bill of the Senator from Massachusetts. I believe it is the duty of Congress to give to the freedmen of the southern States ample protection in all their natural rights. With me it is a question simply of time and manner. I submit to the Senator from Massachusetts whether this is the time for the introduction of this bill. I believe it would be wiser to postpone all action upon this subject until the proclamation of the Secretary of State shall announce that the constitutional amendment is a part of the supreme law of the land. When that is done, there will then be, in my judgment, no doubt of the power of Congress to pass this bill, and to make it definite and general in its terms. . . . I must confess my surprise at one or two recent dispatches issued from high officers of the Government in regard to the construction of the constitutional amendment. To me it is plain and obvious. The first section provides that—

A. Drafting, doc. 7

“Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

This section secures to every man within the United States liberty in its broadest terms. The second section provides that— “Congress shall have power to enforce this article by appropriate legislation.”

Here is not only a guarantee of liberty to every inhabitant of the United States, but an express grant of power to Congress to secure this liberty by appropriate legislation. Now, unless a man may be free without the right to sue and be sued, to plead and be impleaded, to acquire and hold property, and to testify in a court of justice, then Congress has the power, by the express terms of this amendment, to secure all these rights. To say that a man is a freeman and yet is not able to assert and maintain his right, in a court of justice, is a negation of terms. Therefore the power is expressly given to Congress to secure all their rights of freedom by appropriate legislation. The reason why this power was given is also drawn from the history of a clause of the Constitution. By this clause of the Constitution, one which has always been a part of our fundamental law, it is provided that— “The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.”

This clause gives to the citizen of Massachusetts, whatever may be his color, the right of a citizen of South Carolina, to come and go precisely like any other citizen. There never was any doubt about the construction of this clause of the Constitution—that is, that a man who was recognized as a citizen of one State had the right to go anywhere within the United States and exercise the immunity of a citizen of the United States; but the trouble was in enforcing this constitutional provision. In the celebrated case of Mr. Hoar, who went to South Carolina, he was driven out, although he went there to exercise a plain constitutional right, and although he was a white man of undisputed character. This constitutional provision was in effect a dead letter to him. The reason was that there was no provision in the Constitution by which Congress could enforce this right. Although here was a guarantee that the citizen of

27

one State should have the rights of a citizen in all the States, yet there was no express power conferred upon Congress to secure this right, and no law has ever yet been framed that secured the right of a citizen to travel wherever he chose within the limits of the United States. To avoid this very difficulty, that of a guarantee without a power to enforce it, this second section of the constitutional amendment was adopted, which does give to Congress in clear and express terms the right to secure, by appropriate legislation, to every person within the United States, liberty. It seems to me, therefore, as a question of time, it is better to postpone all legislation on this subject until the constitutional amendment is declared to be a part of the fundamental law. ... And I think we should at as early a day as possible announce to the people lately in insurrection precisely what we mean to do with them. In my judgment the Congress of the United States has now to impose conditions upon which those States shall be restored to their old relations to and in the Union. I want to see these conditions gravely considered, deliberately discussed, and fixed after debate; and I wish to see them plainly prescribed either by amendments to the Constitution or in some definite way, that the people of the southern States may know precisely what we intend to demand of them; and then when we have made our demands we shall be satisfied if they comply with them. ... Mr. SAULSBURY. I do not wish to go beyond the limits of propriety in discussing this question, and I should not say a word had it not been for some of the extraordinary and alarming principles avowed here to-­ day. The honorable Senator from Massachusetts who has introduced this bill, having relation upon its face entirely to the States which are denominated “States lately in rebellion,” has expressed the opinion that Congress has the power by its legislation to enter my State and to legislate for my people and for the people of Maryland and for the people of other States which it is not pretended have ever been in revolt; and we are now told that this power is to be derived from the closing paragraph of the act for the amendment of the Constitution. I wish the country to note the fact that when that proposed amendment was before this body there was no Senator then, according to my recollection, that avowed this doctrine. Gentlemen told us that they simply wished to amend the Constitution so as to get clear of slavery, but no

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Senator then, according to my recollection, stated to the country that it was meant under this latter clause of that act to give to the General Government the powers of a consolidated Government, to wipe out the States of this Union from existence, and to vest in Congress the power to legislate for the States.

stitution of the United States proposed, as aforesaid, has been ratified by the legislatures of the States of Illinois, Rhode Island, Michigan, Maryland, New York, West Virginia, Maine, Kansas, Massachusetts, Pennsylvania, Virginia, Ohio, Missouri, Nevada, Indiana, Louisiana, Minnesota, Wisconsin, Vermont, Tennessee, Arkansas, Connecticut, New Hampshire, South Carolina, Alabama, North Carolina, and Georgia; in all twenty-­seven states; And whereas the whole number of states of the United States is thirty-­ six; and whereas the before specially-­named states, whose legislatures have ratified the said proposed amendment, constitute three-­fourths of the whole number of states in the United States: Now, therefore, be it known, that I, William H. Seward, Secretary of State of the United States, by virtue and in pursuance of the second section of the act of congress, approved the twentieth of April, eighteen hundred and eighteen, entitled “An act to provide for the publication of the laws of the United States and for other purposes,” do hereby certify that the amendment aforesaid has become valid, to all intents and purposes, as a part of the Constitution of the United States. In testimony whereof, I have hereunto set my hand, and caused the seal of the Department of State be affixed. Done at the city of Washington, the eighteenth day of December, in the year [L.S.] of our Lord one thousand eight hundred and sixty-­five, and of the Independence of the United States of America the ninetieth. William H. Seward. Secretary of State.

8 Secretary of State William Seward, Proclamation of Ratification of the Thirteenth Amendment December 18, 1865*

To all to whom these presents may come, greeting: Know ye, that whereas the congress of the United States on the 1st of February last passed a resolution which is in the words following, namely: “A resolution submitting to the legislatures of the several states a proposition to amend the Constitution of the United States. “Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both houses concurring,) That the following article be proposed to the legislatures of the several states as an amendment to the Constitution of the United States, which, when ratified by three fourths of said legislatures, shall be valid, to all intents and purposes, as a part of the said constitution, namely:

9 US Senate, Lyman Trumbull, Freedmen’s Bureau Bill

“Article XIII “Section 1. Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist in the United States, or any place subject to their jurisdiction. “Sec. 2. Congress shall have power to enforce this article by appropriate legislation.”

December 19, 1865†

Mr. TRUMBULL. I desire to give notice that I shall to-­ morrow, or on some early day thereafter, ask leave to introduce a bill to enlarge the powers of the Freedmen’s Bureau so as to secure freedom to all persons within the United States, and protect every individual in the full

And whereas it appears from official documents on file in this department that the amendment to the Con* George P. Sanger, ed., United States Statutes at Large (Boston: Little, Brown, 1866), 13:​774–75 (Appendix, Proclamations and Executive Orders, No. 52).

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† Cong. Globe, 39th Cong., 1st Sess., 77 (Dec. 19, 1865).

A. Drafting, doc. 10

enjoyment of the rights of person and property and furnish him with means for their vindication. In giving this notice I desire to say that it is given in view of the adoption of the constitutional amendment abolishing slavery. Whatever diversity of opinion there may be as to the actual adoption of that amendment at this time in consequence of the abnormal condition of the Legislatures in some of the States which have ratified it, there can be no question that it will soon receive the ratification of a sufficient number of States, and probably before there will be time to take action on this bill, to place its validity beyond question. I have never doubted that, on the adoption of that amendment, it would be competent for Congress to protect every person in the United States in all the rights of person and property belonging to a free citizen; and to secure these rights is the object of the bill which I propose to introduce. I think it important that action should be taken on this subject at an early day for the purpose of quieting apprehensions in the minds of many friends of freedom lest by local legislation or a prevailing public sentiment in some of the States persons of the African race should continue to be oppressed and in fact deprived of their freedom, and for the purpose also of showing to those among whom slavery has heretofore existed that unless by local legislation they provide for the real freedom of their former slaves the Federal Government will, by virtue of its own authority, see that they are fully protected. The bill which I desire to introduce is intended to accomplish these objects. I hope there may be no necessity for enforcing such a bill in any part of the Union; but I consider that under the constitutional amendment Congress is bound to see that freedom is in fact secured to every person throughout the land; he must be fully protected in all his rights of person and of property; and any legislation or any public sentiment which deprives any human being in the land of those great rights of liberty will be in defiance of the Constitution, and if the States and local authorities, by legislation or otherwise, deny these rights, it is incumbent on us to see that they are secured.

10 US House, Passage of Proposed Amendment on the Rebel Debt December 19, 1865*

Mr. WILSON, of Iowa, from the Committee on the Judiciary, reported back joint resolution of the House No. 9, to amend the Constitution of the United States, with an amendment. ... The amendment reported by the committee is as follows: Be it resolved by the Senate and House of Representatives of the United States in Congress assembled, (two-­thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid to all intents and purposes as a part of said Constitution, namely: Article —. No tax, duty, or impost shall be laid, nor shall any appropriation of money be made, by either the United States, or any one of the States thereof, for the purpose of paying, either in whole or in part, any debt, contract, or liability whatsoever, incurred, made, or suffered by any one or more of the States, or the people thereof, for the purpose of aiding rebellion against the Constitution and laws of the United States.

... Mr. BINGHAM. The amendment as reported by the committee simply restrains the United States and the States from collecting taxes or appropriating moneys for the payment of any rebel debt. I suggest to the gentleman that it might be well, in order to secure the object intended, to add to the proposed amendment the words, “Nor shall the United States or any State of the Union ever assume or pay any part of such debt or liabilities.”

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* Cong. Globe, 39th Cong., 1st Sess., 84–87 (Dec. 19, 1865). [Although not acted on in the Senate, the substance of the proposal ultimately became section 4 of the proposed Fourteenth Amendment. —Ed.]

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... Mr. NIBLACK. I wish to inquire of the gentleman from Iowa whether, as there are so many other propositions now pending, and I suppose before his committee, to amend the Constitution of the United States in many particulars, it would not be better that when any single proposition is reported back, it should be postponed till some future time, and the amendments shall all come up at one time and be made the special order from day to day until disposed of ? Gentlemen will then have a better opportunity to give the subject attention. The proposed amendments will then all be grouped together so that we can compare them and be better enabled to comprehend their force and the correlative effect one upon the other of the different amendments proposed. In this way we have to consider them disjointedly and in a very unsatisfactory manner. I suggest, therefore, to the gentleman the propriety of grouping all these proposed amendments together and making them the special order for some time during the session, and then we can devote our time to them until disposed of. ... The question was taken; and it was decided in the affirmative—yeas 150, nays 11, not voting 21;

11 Elizabeth Cady Stanton, “This Is the Negro’s Hour,” National Anti-­ Slavery Standard (New York, NY) December 30, 1865, p. 3*

To the Editor of the Standard: Sir,—By an amendment of the Constitution, ratified by three-­fourths of the loyal States, the black man is declared free. The largest and most influential political party is demanding Suffrage for him throughout the Union, which right in many of the States is already conceded. Although this may remain a question for politi* [The title is a reference to Wendell Phillips’s declaration that however much he personally might wish for a future women’s suffrage amendment, “this hour belongs exclusively to the negro.” See vol. 1, 2B, doc. 22. —Ed.]

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cians to wrangle over for five or ten years, the black man is still, in a political point of view, far above the educated women of the country. The representative women of the nation have done their uttermost for the last thirty years to secure freedom for the negro, and so long as he was lowest in the scale of being we were willing to press his claims; but now, as the celestial gate to civil rights is slowly moving on its hinges, it becomes a serious question whether we had better stand aside and see “Sambo” walk into the kingdom first. As self-­preservation is the first law of nature, would it not be wiser to keep our lamps trimmed and burning, and when the Constitutional door is open, avail ourselves of the strong arm and blue uniform of the black soldier to walk in by his side, and thus make the gap so wide that no privileged class could ever again close it against the humblest citizen of the Republic? “This is the negro’s hour.” Are we sure that he, once entrenched in all his inalienable rights, may not be an added power to hold us at bay? Have not “black male citizens” been heard to say they doubted the wisdom of extending the right of Suffrage to women? Why should the African prove more just and generous that his Saxon compeers? If the two millions of Southern black women are not to be secured in their rights of person, property, wages, and children, their emancipation is but another form of slavery. In fact, it is better to be the slave of an educated white man, than of a degraded, ignorant black one. We who know what absolute power the statute laws of most of the States give man, in all his civil, political, and social relations, do demand that in changing the status of the four millions of Africans, the women as well as the men should be secured in all the rights, privileges, and immunities of citizens. It is all very well for the privileged order to look down complacently and tell us, “This is the negro’s hour; do not clog his way; do not embarrass the Republican party with any new issue; be generous and magnanimous; the negro once safe, the woman comes next.” Now, if our prayer involved a new set of measures, or a new train of thought, it would be cruel to tax “white male citizens” with even two simple questions at a time; but the disfranchised all make the same demand, and the same logic and justice that secures Suffrage to one class gives it to all. The struggle of the last thirty years has not been merely on the black man as such, but on the broader

A. Drafting, doc. 12

ground of his humanity. Our Fathers, at the end of the first revolution, in their desire for a speedy readjustment of all their difficulties, and in order to present to Great Britain, their common enemy, an united front, accepted the compromise urged on them by South Carolina, and a century of wrong, ending in another revolution, has been the result of their action. This is our opportunity to retrieve the errors of the past and mould anew the elements of Democracy. The nation is ready for a long step in the right direction; party lines are obliterated, and all men are thinking for themselves. If our rulers have the justice to give the black man Suffrage, woman should avail herself of that new-­born virtue to secure her rights; if not, she should begin with renewed earnestness to educate the people into the idea of universal suffrage. E. Cady Stanton. New York, Dec. 26, 1865.

12 US House, James G. Blaine, Proposed Suffrage-­Based Apportionment Amendment January 8, 1866*

Mr. BLAINE. Since the beginning of the present session, Mr. Chairman, we have had several propositions to amend the Federal Constitution with respect to the basis of representation in Congress. These propositions have differed somewhat in phrase, but they all embrace substantially the one idea of making suffrage instead of population the basis of apportioning Representatives; or in other words, to give to the States in future a representation proportioned to their voters instead of their inhabitants. The effect contemplated and intended by this change is perfectly well understood, and on all hands frankly avowed. It is to deprive the lately rebellious States of the unfair advantage of a large representation in this House, based on their colored population, so long as that population shall be denied political rights by the legislation of those States. The proposed constitutional amend* Cong. Globe, 39th Cong., 1st Sess., 141–42 (Jan. 8, 1866).

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ment would simply say to those States, while you refuse to enfranchise your black population you shall have no representation based on their numbers; but admit them to civil and political rights and they shall at once be counted to your advantage in the apportionment of Representatives. The direct object thus aimed at, as it respects the rebellious States, has been so generally approved that little thought seems to have been given to the incidental evils which the proposed constitutional amendment would inflict on a large portion of the loyal States— evils, in my judgment, so serious and alarming as to lead me to oppose the amendment in any form in which it has yet been presented. As an abstract proposition no one will deny that population is the true basis of representation; for women, children, and other non-­voting classes may have as vital an interest in the legislation of the country as those who actually deposit the ballot. Indeed, the very amendment we are discussing implies that population is the true basis, inasmuch as the exclusion of the black people of the South from political rights has suggested this indirectly coercive mode of securing them those rights. Were the negroes to be enfranchised throughout the South to-­day, no one would insist on the adoption of this amendment; and yet if the amendment shall be incorporated in the Federal Constitution its incidental evils will abide in the loyal States long after the direct evil which it aims to cure may have been eradicated in the southern States. If voters instead of population shall be made the basis of representation certain results will follow, not fully appreciated perhaps by some who are now urgent for the change. I will confine my examination of these results to the nineteen free States whose statistics are presented in the census of 1860; and the very radical change which the new basis of representation would produce among and between those States forms the ground of my opposition to it. The ratio of voters to population differs very widely in different sections, varying in the States referred to from a minimum of nineteen per cent. to a maximum of fifty-­eight per cent., and the changes which this fact would work in the relative representation of certain States would be monstrous. For example, California has a population of 358,110, and Vermont 314,369, and each has three Representatives on this floor to-­ day. But California has 207,000 voters and Vermont has 87,000. Assuming voters as the basis of apportionment, and allowing to Vermont three Representatives, California would be entitled to eight. The great State of Ohio,

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with nearly seven times the population of California, would have but little more than two and a half times the number of Representatives; and New York, with quite eleven times the population of California, would have in the new style of apportionment less than five times as many members of this House. California it may be said presents an extreme case, but no more so than will continually recur for the next century under the stimulus to the emigration of young voters from the older States to the inviting fields of the Mississippi valley and the Pacific slope. But cases less extreme than California will present quite as clearly the injurious working of the proposed change. Take two States—one in the East and one in the West—not greatly differing in aggregate population, for example, Massachusetts and Indiana—the former with 1,221,432 inhabitants, the latter with 1,328,710. Massachusetts has to-­day ten Representatives on this floor and Indiana has eleven, an exactly fair apportionment. But Massachusetts has only 227,429 voters, while Indiana has 316,824, and therefore on the new basis, if Massachusetts should retain her ten Representatives Indiana would be allowed about fifteen, and if Indiana should be confined to her eleven, Massachusetts would be reduced to seven. And I might adduce many other instances showing the gross inequalities of representation to which the proposed amendment would subject the loyal States. Mr. STEVENS. Will the gentleman allow me to ask him a question? Mr. BLAINE. Certainly. Mr. STEVENS. What is the cause of this disparity of men and women in Massachusetts and in the New England States? Is it not that the men go to the western States as emigrants? Mr. BLAINE. I suppose it is. Mr. STEVENS. Very well; is not Massachusetts represented there, then? Mr. BLAINE. Not according to some harangues we hear in this House from gentlemen representing that section on the tariff, as my distinguished friend on the Committee of Ways and Means knows very well. They go there, become identified with what they term western interests, and, I am sorry to say, attack New England and New England interests. Mr. GRINNELL. Not all of them. Mr. BLAINE. And there are other objections, Mr. Chairman, to the proposed constitutional amendment.

Basing representation on voters—unless Congress should be empowered to define their qualifications— would tend to cheapen suffrage everywhere. There would be an unseemly scramble in all the States during each decade to increase by every means the number of voters, and all conservative restrictions, such as the requirement of reading and writing now enforced in some of the States, would be stricken down in a rash and reckless effort to procure an enlarged representation in the national councils. Foreigners would be invited to vote on a mere preliminary “declaration of intention,” and the ballot, which cannot be too sacredly guarded, and which is the great and inestimable privilege of the American citizen, would be demoralized and disgraced everywhere. And the worst feature of all is, that there is no need whatever of precipitating the evils I have referred to. The great end of depriving the South of the representation which is based on the colored population until that population is enfranchised, can be very readily secured without accompanying it with these offensive inequalities of representation among the loyal States. The Constitution may be amended so as to prevent the one evil without involving others of greater magnitude, and I venture to express the belief that the proposition submitted by me this morning, and on my motion referred to the committee on reconstruction, will, if adopted, secure the desired result. Let me briefly explain that proposition. The Constitution of the United States, article one, section two, clause three, reads as follows to the first period: “Representatives and direct taxes shall be apportioned among the several States which may be included within this Union according to their respective numbers, which shall be determined by (adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons.)”

The portion which I have included in parentheses has become meaningless and nugatory by the adoption of the constitutional amendment, which abolishes the distinction between “free persons” and “all other persons,” and being thus a dead letter might as well be formally struck out; and in its stead I propose to insert the words following included in parentheses, so that the clause as amended will read thus: 32

A. Drafting, doc. 14

“Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by (taking the whole number of persons except those to whom civil or political rights or privileges are denied or abridged by the constitution or laws of any State on account of race or color.)”

citizens of the United States, of the age of twenty-­one years. ... The further consideration of the subject was postponed till this evening. The Chairman submitted the following: Resolved, That, in the opinion of this Committee, the insurgent States cannot, with safety to the rights of all the people of the United States, be allowed to participate in the Government until the basis of representation shall have been modified, and the rights of all persons amply secured, either by new provisions, or the necessary changes of existing provisions, in the Constitution of the United States, or otherwise. On motion of Mr. Stevens, the further consideration of the resolution was postponed for the present.

This is a very simple and very direct way, it seems to me, of reaching the result aimed at without embarrassment to any other question or interest. It leaves population as heretofore the basis of representation, does not disturb in any manner the harmonious relations of the loyal States, and it conclusively deprives the southern States of all representation in Congress on account of the colored population so long as those States may choose to abridge or deny to that population the political rights and privileges accorded to others. The adoption of this amendment as a part of the Federal Constitution would, I venture to predict, secure the right of suffrage to the colored population throughout the South in a very few years. And I doubt if in any other mode that right can be secured so speedily, so certainly, and so enduringly.

14 US House, John Bingham, Proposed Amendment to Grant Congress Power to Secure “Equal Personal Rights” January 9, 1866†

13 Joint Committee, Proposed Apportionment Amendment, Exclusion of “Insurgent States”

Mr. BINGHAM. ... I thank the President for reminding Congress of this watchword, “equal and exact justice to all men,” which was familiar to the people in the purer and better days of the Republic. The spirit, the intent, the purpose of our Constitution is to secure equal and exact justice to all men. That has not been done. It has failed to be done in the past. It has failed in respect of white men as well as black men. It has failed to be done at times in respect of some of the most distinguished citizens of the Republic. Was justice done to your martyr President when he was assassinated in the capital? Time was, within the memory of every man now within hearing of my voice, when it was entirely unsafe for a citizen of Massachusetts or Ohio who was known to be the friend of the human race, the avowed advocate of the foundation principle of our Constitution—the absolute equality of all men

January 9, 1866*

Mr. Stevens submitted a joint resolution, upon which he asked immediate action by the Committee, proposing to submit for ratification to the several States the following amendment to the Constitution of the United States: Representatives shall be apportioned among the several States, which may be included within this Union, according to the number of their respective legal voters; and for this purpose none shall be considered as legal voters who are not either natural born or naturalized * Journal of the Joint Committee, 40–41.

† Cong. Globe, 39th Cong., 1st Sess., 157–58 (Jan. 9, 1866).

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before the law—to be found anywhere in the streets of Charleston or in the streets of Richmond. To be sure, it was not because the Constitution of the United States sanctioned any infringement of his rights in that behalf, but because in defiance of the Constitution its very guarantees were disregarded. I call the attention of the House to this fact merely for the purpose of suggesting for their consideration, that in view of all that has happened; in view of the fact that many of the States—I might say, in some sense, all the States of the Union—have flagrantly violated the absolute guarantees of the Constitution of the United States to all its citizens, it is time that we take security for the future, so that like occurrences may not again arise to distract our people and finally to dismember the Republic. When you come to weigh these words, “equal and exact justice to all men,” go read, if you please, the words of the Constitution itself: “The citizens of each State (being ipso facto citizens of the United States) shall be entitled to all the privileges and immunities of citizens (supplying the ellipsis “of the United States”) in the several States.” This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States. This guarantee of your Constitution applies to every citizen of every State of the Union; there is not a guarantee more sacred, and none more vital in that great instrument. It was utterly disregarded in the past by South Carolina when she drove with indignity and contempt and scorn from her limits the honored representative of Massachusetts, who went thither upon the peaceful mission of asserting in the tribunals of South Carolina the rights of American citizens. I propose, with the help of this Congress and of the American people, that hereafter there shall not be any disregard of that essential guarantee of your Constitution in any State of the Union. And how? By simply adding an amendment to the Constitution to operate on all the States of this Union alike, giving to Congress the power to pass all laws necessary and proper to secure to all persons—which includes every citizen of every State—their equal personal rights; and if the tribunals of South Carolina will not respect the rights of the citizens of Massachusetts under the Constitution of their common country, I desire to see the Federal judiciary clothed with the power to take cognizance of the question, and assert those rights by solemn judgment, inflicting upon the offenders such penalties as will compel a decent respect for this guarantee to all the citizens of every State.

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Having said this much touching security for the future, allow me to add that I repel with scorn, come from what source it may, the suggestion that I cooperate with any party that proposes to impose an unequal or unjust burden upon any State in this Republic. I know, and you, sir, know, and every loyal citizen of this Republic has come to know, that the divinest feature of your Constitution is the recognition of the absolute equality before the law of all persons, whether citizens or strangers; and the equality of every State within the limits of this Republic, subject only to the exception made by reason of slavery, now happily abolished. The President, therefore, might well say, as he does say in his message, that “the American system rests on the assertion of the equal right of every man to life, liberty, and the pursuit of happiness; to freedom of conscience, to the culture and exercise of all his faculties.” I propose, then, sir, by amending the Constitution, to provide for the efficient enforcement, by law, of these “equal rights of every man,” and upon the assertion of which, we are told by the President, the American system rests. In doing this I would impose no restraint upon South Carolina that shall not rest with equal weight upon the State of Ohio. I ask that South Carolina, and that Ohio as well, shall be bound to respect the rights of the humblest citizen of the remotest State of the Republic when he may hereafter come within her jurisdiction. Who makes objection to that, or who can justly object to it? These, then, are some of the matters that are before this House for consideration. And it strikes me that they pertain quite as much to the House as to the Executive. I undertake to say that the President of the United States will be found cooperating with the representatives of the people in their endeavor to introduce into the Constitution not that which will mar it, but that which will perfect it and enable the people hereafter to secure and reap for themselves and for their posterity forever the great ends for which that Constitution was ordained. It was ordained to form a more perfect Union, but only as a means to the attainment of all its declared purposes. It is a declared purpose of the Constitution “to insure domestic tranquility.” How? By affording protection by law to the rights of all, in every State of the Union, and upon every sea the world over wherever your flag floats. Not merely “to establish a more perfect Union;” not merely to insure domestic tranquility; not merely “to provide for the common defense,” was the Constitution ordained; but also to “establish justice.” It stands

A. Drafting, doc. 16

written, sir, on the forefront of that imperishable instrument that “in order to establish justice, we, the people of the United States, do ordain this Constitution.” Well might the President demand, as he does demand in his message, “equal and exact justice to all men.” That is precisely what is proposed to be accomplished. I repel every insinuation or intimation, come from what quarter it may, that the representatives of the people have manifested thus far the slightest disposition to interfere with the prerogatives, if gentlemen please so to term the powers, of the Executive. I deny that the representatives of the people have taken any step indicating any such purpose, or any purpose to raise an issue or create a conflict between the President and Congress. But I may say further, that if the day ever comes when the President of the United States finds in this House no other supporters than those who combined together at Chicago in 1864 to bury him where they hoped that even the hand of resurrection itself could never again find him, then God help the President and save him from his friends. [Applause.]

16 US Senate, Lyman Trumbull, Reporting Amendments to Civil Rights Bill January 12, 1866†

Mr. TRUMBULL. I move that the Senate now proceed to the consideration of Senate bill No. 61, to protect all persons in the United States in their civil rights, and furnish the means of their vindication. I will state that in calling up this bill it is not my intention to press it to a vote or to any definite action upon it further than to have the amendments reported by the Judiciary Committee, which are entirely of a verbal character, acted upon, and then shall be willing that the bill be postponed to a future day. I should like to have the bill read, and those amendments which are entirely verbal disposed of, and then let the bill be postponed. The motion was agreed to; and the Senate, as in Committee of the Whole, proceeded to consider the bill. It declares 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 condition 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 equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding. Any person who under cover of any law, statute, ordinance, regulation, or custom, shall subject or cause to be subjected any inhabitant of any State or Territory to the deprivation of any right secured or protected by the act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by

15 US Senate, Lyman Trumbull, Judiciary Committee Reports S. Nos. 60 & 61 (Freedmen’s Bureau and Civil Rights Bills) January 11, 1866*

Reports from Committees.

Mr. TRUMBULL, from the Committee on the Judiciary, to whom was referred the bill (S. No. 60) to enlarge the powers of the Freedmen’s Bureau, reported it with amendments. He also, from the same committee, to whom was referred the bill (S. No. 61) to protect all persons in the United States in their civil rights, and furnish the means of their vindication, reported it with amendments. Mr. TRUMBULL. I desire to give notice that when these bills shall have been printed, with the amendments, I will call the attention of the Senate to them at an early day. * Cong. Globe, 39th Cong., 1st Sess., 184 (Jan. 11, 1866).

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† Cong. Globe, 39th Cong., 1st Sess., 211 (Jan. 12, 1866).

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reason of his color or race, than is prescribed for the punishment of white persons, is to be deemed guilty of a misdemeanor, and on conviction to be punished by a fine not exceeding $1,000, or imprisonment not exceeding one year, or both, in the discretion of the court. The district courts of the United States, within their respective districts, are to have, exclusively of the courts of the several States, cognizance of all crimes and offenses committed against the provisions of the act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the act; and if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court against any such person, or against any officer, civil or military, or other person, for any arrest or imprisonment, trespasses, or wrongs done or committed, by virtue or under color of authority derived from this act, or the act to “enlarge the powers of the Freedmen’s Bureau,” such defendant is to have the right to remove such cause for trial to the proper district or circuit court in the manner prescribed by the “Act relating to habeas corpus and regulating judicial proceedings in certain cases,” approved March 3, 1863. The jurisdiction in civil and criminal matters hereby conferred on the district and circuit courts of the United States is to be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry it into effect; but in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of the cause, civil or criminal, is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern these courts in the trial and disposition of such cause, and if of a criminal nature, in the infliction of punishment on the party found guilty. The district attorneys, marshals, and deputy marshals of the United States, the commissioners appointed by the circuit and territorial courts of the United States, with powers of arresting, imprisoning, or bailing offenders against the laws of the United States, the officers and agents of the Freedmen’s Bureau, and every other officer who may be specially empowered by the President of the United States, and by the act specially autho-

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rized and required, at the expense of the United States, to institute proceedings against all and every person who shall violate its provisions, and cause him or them to be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States or territorial court as by the act has cognizance of the offense. With a view to affording reasonable protection to all persons in their constitutional rights of equality before the law, without distinction of race or color, or previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, and to the prompt discharge of the duties of the act, it is to be the duty of the circuit courts of the United States and the superior courts of the Territories of the United States, from time to time, to increase the number of commissioners so as to afford a speedy and convenient means for the arrest and examination of persons charged with a violation of the act. These commissioners shall have concurrent jurisdiction with the judges of the circuit and district courts of the United States, and the judges of the superior courts of the Territories, severally and collectively, in term time and vacation, upon satisfactory proof being made, to issue warrants and precepts for arresting and bringing before them all offenders against the provisions of the act, and on examination to discharge, admit to bail, or commit them for trial, as the facts may warrant. It is to be the duty of all marshals and deputy marshals to obey and execute all warrants and precepts issued under the provisions of the act, when to them directed; and should any marshal or deputy marshal refuse to receive such warrant or other process when tendered, or to use all proper means diligently to execute the same, he is on conviction to be fined in the sum of $1,000, to the use of the person upon whom the accused is alleged to have committed the offense, on the motion of such person, by the circuit or district court for the district of such marshal. And the better to enable the commissioners to execute their duties faithfully and efficiently, in conformity with the Constitution of the United States and the requirements of the act, they are empowered, within their counties, respectively, to appoint in writing, under their hands, any one or more suitable persons, from time to time, to execute all such warrants and other process as may be issued by them in the lawful performance of their respective duties; and the persons so appointed to execute any warrant or process are to have authority to summon and call to their aid the bystanders or posse comitatus of

A. Drafting, doc. 16

the proper county, or such portion of the land or naval forces of the United States, or of the militia, as may be necessary to the performance of the duty with which they are charged, and to insure a faithful observance of the clause of the Constitution which prohibits slavery, in conformity with the provisions of the act, and these warrants are to run and be executed by those officers anywhere in the State within which they are issued. Any person who shall knowingly and wilfully obstruct, hinder, or prevent any officer, or other person charged with the execution of any such warrant or process, or any person or persons lawfully assisting him or them, from arresting any person for whose apprehension such warrant or process may have been issued, or shall rescue or attempt to rescue such person from the custody of the officer, other person or persons, or those lawfully assisting, when so arrested pursuant to the authority herein given, or shall aid, abet, or assist any person so arrested, directly or indirectly, to escape from the custody of the officer or other person legally authorized, or shall harbor or conceal any person for whose arrest a warrant or process shall have been issued, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant has been issued for the apprehension of such person, is, for either of these offenses, to be subject to a fine not exceeding $1,000, and imprisonment not exceeding six months, by indictment and conviction in the district court of the United States in which the offense may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States; and in case of the escape of the person for whose arrest such warrant or process was issued, is moreover to forfeit and pay, by way of civil damages, to the party claiming to have been grieved by this act, the sum of $1,000, to be recovered by action of debt, in any of the courts within whose jurisdiction the offense may have been committed. The district attorneys, the marshals, their deputies, and the clerks of the district and territorial courts, are to be paid for their services the like fees as may be allowed to them for similar services in other cases; and in all cases where the proceedings are before a commission, he is to be entitled to a fee of ten dollars in full for his services in each case, inclusive of all services incident to the arrest and examination. The person or persons authorized to execute the process to be issued by such commissioners for the arrest of offenders against the provisions of the act, are to be entitled to a fee of

five dollars for each person he or they may arrest and take before the commissioner, fees as may be deemed reasonable by the commissioner for such other additional services as may be necessarily performed by him or them, such as attending to the examination, keeping the prisoner in custody, and providing him with food and lodging during his detention, and until the final determination of the commissioner, and in general for performing such other duties as may be required in the premises; such fees to be made up in conformity with the fees usually charged by the officers of the courts of justice within the proper district or county, as near as may be practicable, and paid out of the Treasury of the United States, on the certificate of the judge of the district within which the arrest is made, and to be recoverable from the defendant as part of the judgment in case of conviction. Whenever the President of the United States shall have reason to believe that offenses have been or are likely to be committed against the provisions of the act within any judicial district, he may, in his discretion, direct the judge, marshal, and district attorney, of the district, to attend at such place, within the district, and for such time as he may designate, for the purpose of the more speedy arrest and trial of persons charged with a violation of the act; and it shall be the duty of every judge or other officer, when any such requisition shall be received by him, to attend at the place and for the time therein designated. And the President of the United States, or such person as he may empower for that purpose, is to have authority to employ such part of the land or naval forces of the United States, or of the militia, as shall be necessary, to prevent the violation and enforce the due execution of the act.

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17 Joint Committee, Proposed Amendments, Apportionment, Power to Secure to All Persons “Equal Protection in Their Rights of Life, Liberty and Property” January 12, 1866*

The Committee met pursuant to adjournment; absent Mr. Rogers. The consideration of the joint resolution submitted by Mr. Stevens was resumed. ... Mr. Morrill moved the following as a substitute for the original proposition: Representatives and direct taxes shall be apportioned among the several States, which may be included within this Union, according to their respective numbers of persons, deducting therefrom all of any race or color, whose members or any of them are denied any of the civil or political rights or privileges. Mr. Williams gave notice that at a proper time he should move the following substitute: Representatives and direct taxes shall be apportioned among the several States of the Union according to their respective numbers, excluding negroes, Indians, Chinese and all persons, not white, who are not allowed the elective franchise by the Constitutions of the States in which they respectively reside. Mr. Conkling gave a similar notice in regard to the following substitute: 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 citizens of the United States; provided that whenever in any State civil or political rights or privileges shall be denied or abridged on account of race or color, all persons of such race or color shall be excluded from the basis of representation or taxation. * Journal of the Joint Committee, 43–47.

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Mr. Boutwell gave a similar notice in regard to the following substitute: Representatives and direct taxes shall be apportioned among the several States, which may be included within this Union, according to the respective number of citizens of the United States in each State; and no State shall make any distinction in the exercise of the elective franchise on account of race or color. ... Mr. Johnson submitted the following resolution: Resolved, That, in the opinion of this Committee, representatives should be apportioned among the several States according to their respective numbers of legal voters. The question was taken, by yeas and nays, and it was decided in the negative, yeas 6, nays 8, absent and not voting 1, as follows: Yeas—Messrs. Grimes, Johnson, Stevens, Washburne, Bingham and Blow—6. Nays—The Chairman, Messrs. Harris, Howard, Williams, Morrill, Grider, Conkling and Boutwell—8. Absent and not voting, Mr. Rogers—1. So the resolution was not agreed to. Mr. Morrill submitted the following: Ordered, That a sub-­committee of five members, including the Chairman of the Committee on the part of the Senate, and the Chairman of the Committee on the part of the House, (Messrs. Fessenden and Stevens) be appointed, to which shall be referred the various propositions submitted by members of this Committee in relation to apportionment of representatives in Congress, with instructions to prepare and report to this Committee a proposition upon that subject. The motion was agreed to. Mr. Bingham submitted the following proposed amendment of the Constitution of the United States, and moved that the same be referred to the sub-­ committee just authorized: The Congress shall have power to make all laws necessary and proper to secure to all persons in every state within this Union equal protection in their rights of life, liberty and property. The motion was agreed to. Mr. Stevens submitted the following proposed amendment of the Constitution, and moved that the same be referred to the sub-­committee just authorized: All laws, state or national, shall operate impartially and equally on all persons without regard to race or color. The motion was agreed to.

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... The Chairman announced the following as members of the sub-­committee: Messrs. Fessenden and Stevens (named in the order of the Joint Committee) and Messrs Howard, Conkling and Bingham.

18 US Senate, Debate, Freedmen’s Bureau Bill January 19, 1866*

The Senate, as in Committee of the Whole, resumed the consideration of the bill (S. No. 60) to enlarge the powers of the Freedmen’s Bureau. Mr. HENDRICKS. I was not able, Mr. President, to agree with the Committee on the Judiciary in its conclusion to recommend this bill to the favorable consideration of the Senate, and I had intended rather fully to examine its provisions, but find my health is such to-­ day that I shall not be able very fully to consider it. I intend, however, briefly to discuss what I think are the prominent features of the bill. It is entitled “A bill to enlarge the powers of the Freedmen’s Bureau.” It should be entitled “A bill to enlarge the powers and extend the jurisdiction of the Freedmen’s Bureau,” and then the title would accurately define the force of the bill. Upon the title itself, as indicating the purpose of the bill, I wish to ask Senators what are the reasons in favor of the enactment of this proposed law. Why shall we now extend the powers of the Freedmen’s Bureau? ... The most remarkable sections of the bill, however, are the seventh and eighth, and to those sections I will ask the very careful attention of Senators; for I think if we can pass those two sections and make them a law, then indeed this Government can do anything. It will be useless to speak any longer of limitations upon the powers of the General Government; it will be idle to speak of the reserved power of the States; State rights and State power will have passed away if we can do what is proposed in the seventh and eighth sections of this bill. The seventh section is in these words: * Cong. Globe, 39th Cong., 1st Sess., 314–23 (Jan. 19, 1866).

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Sec. 7. And be it further enacted, That whenever, in any State or district in which the ordinary course of judicial proceedings has been interrupted by the rebellion, and wherein, in consequence of any State or local law, ordinance, police, or other regulation, custom, or prejudice, any of the civil rights or immunities belonging to white persons, including the 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 have full and equal benefit of all laws and proceedings for the security of person and estate, are refused or denied to negroes, mulattoes, freedmen, refugees, or any other persons, on account of race, color, or any previous condition of slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, or wherein they or any of them are subjected to any other or different punishment, pains, or penalties, for the commission of any act or offense than are prescribed for white persons committing like acts or offenses, it shall be the duty of the President of the United States, through the Commissioner, to extend military protection and jurisdiction over all cases affecting such persons so discriminated against.

The language is very comprehensive. We propose, first, to legislate against the effects of “local law, ordinance, police, or other regulation;” then against “custom,” and lastly, against “prejudice,” and to provide that if “any of the civil rights or immunities belonging to white persons” are denied to any person because of color, then that person shall be taken under the military protection of the Government. I do not know whether that will be understood to extend to Indiana or not. . . . We do not allow to colored people there many civil rights and immunities which are enjoyed by the white people. It became the policy of the State in 1852 to prohibit the immigration of colored people into that State. I am not going to discuss the question whether that was a wise policy or not. At the time it received the approval of my judgment. Under that constitutional provision, and the laws enacted in pursuance of it, a colored man coming into the State since 1852 cannot acquire a title to real estate, cannot make certain contracts, and no negro man is allowed to intermarry with a white woman. These are civil rights that are denied, and yet this bill proposes if they are still denied in any State whose courts have

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been interrupted by the rebellion, the military protection of the Government shall be extended over the person who is thus denied such civil rights or immunities. I understand, from the remarks of the Senator who introduced this bill, when he gave notice of its introduction, that he places the power of Congress to enact this law under the amendment to the Constitution abolishing slavery. I will consider that argument very briefly. That constitutional amendment was in these words: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. “Sec. 2. Congress shall have power to enforce this article by appropriate legislation.”

It is claimed that under this second section Congress may do anything necessary, in its judgment, not only to secure the freedom of the negro, but to secure to him all civil rights that are secured to white people. I deny that construction, and it will be a very dangerous construction to adopt. The first section abolishes slavery. The second section provides that Congress may enforce the abolition of slavery “by appropriate legislation.” What is slavery? It is not a relation between the slave and the State; it is not a public relation; it is a relation between two persons whereby the conduct of the one is placed under the will of the other. It is purely and entirely a domestic relation, and is so classed by all law writers; the law regulates that relation as it regulates other domestic relations. This constitutional amendment broke asunder this private relation between the master and his slave, and the slave then, so far as the right of the master was concerned, became free; but did the slave, under that amendment, acquire any other right than to be free from the control of his master? The law of the State which authorized this relation is abrogated and annulled by this provision of the Federal Constitution, but no new rights are conferred upon the freedman. Then, sir, to make a contract is a civil right which has ordinarily been regulated by the States. The form of that contract and the ceremonies that shall attend it are not to be regulated by Congress, but by the States. Suppose that it becomes the judgment of the State that a contract between a colored man and a white man shall be evidenced by other solemnities and instruments than are required between two white men, shall not the State be allowed to make such a provision? Is it a civil right

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to give evidence in courts? Is it a civil right to sit upon a jury? If it be a civil right to sit upon a jury, this bill will require that if any negro is refused the privilege of sitting upon a jury, he shall be taken under the military protection of the Government. Is the right to marry according to a man’s choice a civil right? Marriage is a civil contract, and to marry according to one’s choice is a civil right. Suppose a State shall deny the right of amalgamation, the right of a negro man to intermarry with a white woman, then that negro may be taken under the military protection of the Government; and what does that mean? Under the seventh section, in such a case as that, when you have taken the negro under the military protection of the Government, perhaps sent a squad of men after him, what is then to be done when he is thus protected? What is meant by taking him under the protection of the Government? Does it mean that this military power shall enforce his civil right, without respect to the prohibition of the local law? In other words, if the law of Indiana, as it does, prohibits under heavy penalty the marriage of a negro with a white woman, may it be said a civil right is denied him which is enjoyed by all white men, to marry according to their choice, and if it is denied, the military protection of the colored gentleman is assumed, and what is the result of it all? I suppose they are then to be married in the camp of the protecting officer without regard to the State laws. ... My judgment is that under the second section of the constitutional amendment we may pass such a law as will secure the freedom declared in the first section, but that we cannot go beyond that limitation. ... Mr. TRUMBULL. Mr. President, I feel it incumbent on me to reply to some of the arguments presented by the Senator from Indiana against this bill. ... What was the object of the constitutional amendment abolishing slavery? It was not, as the Senator says, simply to take away the power of the master over the slave. Did we not mean something more than that? Did we not mean that hereafter slavery should not exist, no matter whether the servitude was claimed as due to an individual or the State? The constitutional amendment abolishes just as absolutely all provisions of State or local law which make a man a slave as it takes away the power of his former master to control him. If the construction put by the Senator from Indiana upon the amendment be the true one, and we have

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merely taken from the master the power to control the slave and left him at the mercy of the State to be deprived of his civil rights, the trumpet of freedom that we have been blowing throughout the land has given an “uncertain sound,” and the promised freedom is a delusion. Such was not the intention of Congress, which proposed the constitutional amendment, nor is such the fair meaning of the amendment itself. With the destruction of slavery necessarily follows the destruction of the incidents to slavery. When slavery was abolished, slave codes in its support were abolished also. Those laws that prevented the colored man going from home, that did not allow him to buy or to sell, or to make contracts; that did not allow him to own property; that did not allow him to enforce rights; that did not allow him to be educated, were all badges of servitude made in the interest of slavery and as a part of slavery. They never would have been thought of or enacted anywhere but for slavery, and when slavery falls they fall also. The policy of the States where slavery has existed has been to legislate in its interest; and out of deference to slavery, which was tolerated by the Constitution of the United States, even some of the non-­slaveholding States passed laws abridging the rights of the colored man which were restraints upon liberty. When slavery goes, all this system of legislation, devised in the interest of slavery and for the purpose of degrading the colored race, of keeping the negro in ignorance, of blotting out from his very soul the light of reason, if that were possible, that he might not think, but know only, like the ox, to labor, goes with it. Now, when slavery no longer exists, the policy of the Government is to legislate in the interest of freedom. Now, our laws are to be enacted with a view to educate, improve, enlighten, and Christianize the negro; to make him an independent man; to teach him to think and to reason; to improve that principle which the great Author of all has implanted in every human breast, which is susceptible of the highest cultivation, and destined to go on enlarging and expanding through the endless ages of eternity. I have no doubt that under this provision of the Constitution we may destroy all these discriminations in civil rights against the black man; and if we cannot, our constitutional amendment amounts to nothing. It was for that purpose that the second clause of that amendment was adopted, which says that Congress shall have authority, by appropriate legislation, to carry into effect the article prohibiting slavery. Who is to decide what

that appropriate legislation is to be? The Congress of the United States; and it is for Congress to adopt such appropriate legislation as it may think proper, so that it be a means to accomplish the end. If we believe a Freedmen’s Bureau necessary, if we believe an act punishing any man who deprives a colored person of any civil rights on account of his color necessary—if that is one means to secure his freedom, we have the constitutional right to adopt it. If in order to prevent slavery Congress deem it necessary to declare null and void all laws which will not permit the colored man to contract, which will not permit him to testify, which will not permit him to buy and sell, and to go where he pleases, it has the power to do so, and not only the power, but it becomes its duty to do so. That is what is provided to be done by this bill. Its provisions are temporary; but there is another bill on your table, somewhat akin to this, which is intended to be permanent, to extend to all parts of the country, and to protect persons of all races in equal civil rights. But, says the Senator from Indiana, we have laws in Indiana prohibiting black people from marrying whites, and are you going to disregard these laws? Are our laws enacted for the purpose of preventing amalgamation to be disregarded, and is a man to be punished because he undertakes to enforce them? I beg the Senator from Indiana to read the bill. One of its objects is to secure the same civil rights and subject to the same punishments persons of all races and colors. How does this interfere with the law of Indiana preventing marriages between whites and blacks? Are not both races treated alike by the law of Indiana? Does not the law make it just as much a crime for a white man to marry a black woman as for a black woman to marry a white man. and vice versa? I presume there is no discrimination in this respect, and therefore your law forbidding marriages between whites and blacks operates alike on both races. This bill does not interfere with it. If the negro is denied the right to marry a white person, the white person is equally denied the right to marry the negro. I see no discrimination against either in this respect that does not apply to both. Make the penalty the same on all classes of people for the same offense, and then no one can complain.*

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* [The Senate passed the Freedmen’s Bureau Bill on January 25, 1866, on a vote of 37 to 10 (3 absent). See Cong. Globe, 39th Cong., 1st Sess., 421 (Jan. 25, 1866). The House followed suit and passed the bill on February 6, 1866, on a vote of 136 to 33 (13 not voting). See Cong. Globe, 39th Cong., 1st Sess., 688 (Feb. 6, 1866). —Ed.]

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19 Joint Committee, Proposed Amendments, Vote on Apportionment Amendment January 20, 1866*

The Committee met pursuant to call of its Chairman; absent, Mr. Johnson. ... The Chairman, from the sub-­committee on the basis of representation, reported that the sub-­committee had directed him to report the following for the action of the Joint Committee; the first two as alternative propositions, one of which, with the third proposition, to be recommended to Congress for adoption: “Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled, two-­thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, which, when they, or either of them, shall be ratified by three fourths of the said Legislatures, shall be valid as part of the Constitution; viz: Article A. Representatives and direct taxes shall be apportioned among the several States within this Union, according to the respective numbers of citizens of the United States in each State; and all provisions in the Constitution 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. Or the following: Article B. Representatives and direct taxes shall be apportioned among the several States which shall be included within this Union, according to their respective numbers, 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 representation. * Journal of the Joint Committee, 49–54.

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Article C. Congress 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 persons in every State equal protection in the enjoyment of life, liberty and property.” The Joint Committee proceeded to consider the report of the sub-­committee. Mr. Stevens moved the last article be separated from whichever of the other two should be adopted by the Committee, and be considered by itself. The question was taken by yeas and nays, and decided in the affirmative, yeas 10, nays 4; absent and not voting 1, as follows: Yeas—Messrs. Grimes, Williams, Stevens, Washburne, Morrill, Bingham, Conkling, Boutwell, Blow and Rogers—10. Nays—the Chairman, Messrs., Harris, Howard and Grider—4. Absent and not voting—Mr. Johnson—1. So the motion was agreed to. Mr. Stevens moved that the Committee take the second named of the alternative proposed articles as the basis of their action. The question was taken by yeas and nays, and it was decided in the affirmative, yeas 11, nays 3, absent and not voting 1, as follows: Yeas—Messrs, Grimes, Harris, Williams, Stevens, Washburne, Morrill, Bingham, Conkling, Boutwell, Blow and Rogers—11. Nays—The Chairman, Messrs., Howard and Grider —3. Absent and not voting—Mr. Johnson—1. So the motion was agreed to. Mr. Stevens moved to amend the proposed article by adding the following: “And whenever the words ‘citizens of the United States’ are used in the Constitution of the United States, they shall be construed to mean all persons born in the United States, or naturalized, excepting Indians.” Pending the consideration of which Mr. Conkling moved to amend the proposed article by striking out the words “citizens of the United States in each State,” and inserting in lieu thereof the words “persons in each State, excluding Indians not taxed.” The question was taken by yeas and nays, and it was decided in the affirmative, yeas 11, nays 3, absent and not voting 1, as follows: Yeas—Messrs. Grimes, Harris, Howard, Williams,

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Washburne, Morrill, Grider, Conkling, Boutwell, Blow and Rogers—11. Nays—The Chairman and Messrs. Stevens and Bingham—3. Absent and not voting—Mr. Johnson—1. So the amendment was adopted. Mr. Morrill moved to further amend by striking out the word “creed” wherever it occurred in the proposed article. The amendment was adopted. Mr. Stevens withdrew his amendment. The question was upon agreeing to the proposed article as amended, which was as follows: “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; provided 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.” The question was taken by yeas and nays, and it was decided in the affirmative, yeas 13, nays 1, absent and not voting 1, as follows: Yeas—The Chairman, Messrs. Grimes, Harris, Howard, Williams, Stevens, Washburne, Morrill, Grider, Bingham, Conkling, Boutwell and Blow—13. Nay—Mr. Rogers—1. Absent and not voting—Mr. Johnson—1. So the proposed article as amended was agreed to. Pending the call of yeas and nays. Messrs. Howard and Grider each said, that although they voted in the affirmative, they desired to be understood as retaining their right to support, in their respective Houses, some proposition more in accordance with their views, should they deem it advisable to do so. On motion of Mr. Bingham it was Ordered, That the Chairman of the Senate portion of the Joint Committee (Mr. Fessenden), and the Chairman of the House portion of the Joint Committee (Mr. Stevens), be instructed to report as early as practicable to their respective Houses, the proposed amendment to the Constitution of the United States, this day agreed upon by the Joint Committee, and recommend its adoption of the same. Mr. Rogers asked and obtained leave to submit to the House of Representatives a report setting forth the

views of the minority of the Joint Committee upon the proposed amendment. Adjourned to meet on call of the Chairman.

20 US House, Debate, Apportionment Amendment January 22, 1866*

Mr. STEVENS. I am instructed by the joint committee on reconstruction, which is authorized to report at any time, to report a joint resolution proposing an amendment to the Constitution of the United States. The joint resolution was read a first and second time. It is as follows: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States; which, when ratified by three fourths of the said Legislatures, shall be valid as part of said Constitution, namely: Article —. 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: Provided, 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.

The question was upon ordering the joint resolution to be engrossed and read a third time. Mr. STEVENS. Mr. Speaker, I will say one word on this subject. I will not make a speech, because every member here has, I suppose, for the last six weeks had this question under consideration. There are twenty-­two States whose Legislatures are now in session, some of which will adjourn within two or three weeks. It is very desirable, if this amendment is 43

* Cong. Globe, 39th Cong., 1st Sess., 351, 353–59 (Jan. 22, 1866).

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to be adopted, that it should go forth to be acted upon by the Legislatures now in session. It proposes to change the present basis of representation to a representation upon all persons, with the proviso that wherever any State excludes a particular class of persons from the elective franchise, that State to that extent shall not be entitled to be represented in Congress. It does not deny to the States the right to regulate the elective franchise as they please; but it does say to a State, “If you exclude from the right of suffrage Frenchmen, Irishmen, or any particular class of people, none of that class of persons shall be counted in fixing your representation in this House. You may allow them to vote or not, as you please; but if you do allow them to vote, they will be counted and represented here; while if you do not allow them to vote, no one shall be authorized to represent them here; they shall be excluded from the basis of representation.” As I said before, I shall not make a speech upon what every man understands, what is contained in a nutshell, unless some gentleman on the other side of the House desires to discuss this question. ... Mr. ROGERS. Mr. Speaker, in order that I may be placed right with regard to the position which I took in the committee upon this question, I state to the House that there was no agreement upon my part, either express or implied, that this debate should be confined to any particular number of persons on either side, and I am here upon the Democratic theory that a question of this importance ought not to be passed upon by this House without allowing all persons upon both sides full opportunity for debate. Sir, this is a question different from those which have usually been brought to the attention of the people of this country. It is the first time since the formation of the Government of the United States that any proposition of this kind or of a similar character has ever been offered to the House of Representatives or to the people of the United States for their ratification. It is a proposition to change the organic law of the land with regard to one of the fundamental principles which was laid down by our fathers at the formation of the Constitution as an axiom of civil and political liberty, that taxation and representation should always go together. If gentlemen will examine this proposed amendment of the Constitution they will see that it is in violation of that great doctrine which was proclaimed by the fathers of the Republic when they enunciated the Declaration of Inde-

pendence, and protested against the tyranny and despotism of England, because she attempted to tax the people of the colonies without allowing them representation in the councils of the kingdom. The amendment now under consideration proposes the very same identical thing that the Parliament of England proposed when it attempted to inflict upon the American colonies taxation without allowing the people of the colonies to have representatives in the Parliament of England to represent them upon the question whether they should be taxed by the mother country or not. When the Constitution of the United States was made, our fathers, in pursuance of the object of the Revolution, and in the exercise of their wisdom, embodied in it the doctrine that representation should not be based upon the voting population of the country, but that it should be solely and wholly based upon the numbers of the people, without regard to sex or color, adding to those who were persons and citizens within the meaning of the organic law a representation for three fifths of the slave population of this country. This joint resolution now under consideration contains a proviso which saps the very foundation and principles upon which the genius and institutions of this country have rested from the commencement of its political existence. The proviso reads: Provided, 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.

In other words, it inflicts upon the States a penalty for refusing to the colored population an unqualified right of suffrage which it does not inflict upon them for refusing the same thing to the white population. While it denies representation to the States for their negroes, it inflicts upon them taxation without representation, and in that indirect way compels the States to adopt unqualified negro suffrage in order to allow them their rights under the present organic law. ... What is there more democratic and republican in the institutions of this country than that the people of all classes, without regard to whether they are voters or not, white or black, who make up the intelligence, wealth, and patriotism of the country, shall be represented in the councils of the nation? Every man in this House knows perfectly well in the several States a per44

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son under the age of twenty-­one years cannot vote, unnaturalized citizens cannot vote, and the whole class of females, constituting nearly one half of the population of this country, cannot vote; yet for these persons the States are entitled to representation. Yet, because there are in certain States negroes, men of an inferior race, men who by the laws of God are stamped with an inferiority so indelible that nothing can wipe it out, it is proposed that such States shall only enjoy their full right to representation here on the condition that they will allow to these negroes the unqualified right of suffrage on a perfect equality with the white citizen. ... It will not do to attempt to deny what is the object of this bill. This amendment is to constitute one of the barriers, to be devised by the committee of fifteen, to keep the South out of the Union. It is one of the points of that committee. Its object is to keep the States out. ... Mr. CONKLING. ... A purely arbitrary agreement was made and inserted in the Constitution, an agreement with nothing to support it but the consent of the parties, based upon the facts as they then stood. It was agreed in substance that the free people of all the States should be counted alike, and should all have their fair share of power as thus ascertained, and that then the free people of the slaveholding States should have as much power beside as would be measured by counting every slave as three fifths of a “person;” direct taxes to follow the same rule. The power thus agreed upon could not be exercised by the fractional persons themselves, but as somebody else owned them, it was so arranged that that same somebody else should own the political power also. The covenant, whether wise or not, was operative as long as there was anything for it to operate upon. That time is past. The provision has become impotent. The fall of slavery has superseded it. We have nothing now to rely upon in its place but the residue of the second section of the first article of the Constitution. That section, owing to the rupture of the technical tie of slavery, would, as it stands, work out results now which, when the Constitution was made, were condemned by the judgment of all. “Free persons” was the term employed to describe all who had political rights and standing, because only slaves had neither.

But now a new anomaly exists. Four million people are suddenly among us not bound to any one, and yet not clothed with any political rights. They are not slaves, but they are not, in a political sense, “persons.” No figment of slavery remains with which to spell out a right in somebody else to wield for them a power which they may not wield themselves. This was one of the appurtenances of property in man, and has been extinguished by constitutional amendment, if it was not destroyed before. This emancipated multitude has no political status. Emancipation vitalizes only natural rights, not political rights. Enfranchisement alone carries with it political rights, and these emancipated millions are no more enfranchised now than when they were slaves. They never had political power. Their masters had a fraction of power as masters. But there are no masters now. There are no slaves now. The whole relationship in which the power originated and existed is gone. Does this fraction of power still survive? If it does, what shall become of it? Where is it to go? We are told the blacks are unfit to wield even a fraction of power, and must not have it. That answers the whole question. If the answer be true, it is the end of controversy. There is no place logically for this power to go save to the blacks; if they are unfit to have it, the power would not exist. It is a power astray, without a rightful owner. It should be resumed by the whole nation at once. It should not exist; it does not exist. This fractional power is extinct. A moral earthquake has turned fractions into units, and units into ciphers. If a black man counts at all now, he counts five fifths of a man, not three fifths. Revolutions have no such fractions in their arithmetic; war and humanity join hands to blot them out. Four millions, therefore, and not three fifths of four millions, are to be reckoned in here now, and all these four millions are, and are to be, we are told, unfit for political existence. Did the framers of the Constitution ever dream of this? Never, very clearly. Our fathers trusted to gradual and voluntary emancipation, which would go hand in hand with education and enfranchisement. They never peered into the bloody epoch when four million fetters would be at once melted off in the fires of war. They 45

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never saw such a vision as we see. Four millions, each a Caspar Hauser, long shut up in darkness, and suddenly led out into the full flash of noon, and each, we are told, too blind to walk, politically. No one foresaw such an event, and so no provision was made for it. The three-­ fifths rule gave the slaveholding States over and above all their just representation, eighteen Representatives beside, by the enumeration of 1860. The new situation will enable those States when relationships are resumed, to claim twenty-­eight Representatives beside their just proportion. Twenty-­eight votes to be cast here and in the Electoral College for those held not fit to sit as jurors, not fit to testify in court, not fit to be plaintiff in a suit, not fit to approach the ballot box. Twenty-­eight votes, to be more or less controlled by those who once betrayed the Government, and for those so destitute, we are assured, of intelligent instinct as not to be fit for free agency. Shall all this be? Shall four million beings count four millions, in managing the affairs of the nation, who are pronounced by their fellow-­beings unfit to participate in administering government in the States where they live, or in their counties, towns, or precincts; who are pronounced unworthy of the least and most paltry part in local political affairs? Shall one hundred and twenty-­seven thousand white people in New York cast but one vote in this House, and have but one voice here, while the same number of white people in Mississippi have three votes and three voices. Shall the death of slavery add two fifths to the entire power which slavery had when slavery was living? Shall one white man have as much share in the Government as three other white men merely because he lives where blacks outnumber whites two to one? Shall this inequality exist, and exist only in favor of those who without cause drenched the land with blood and covered it with mourning? Shall such be the reward of those who did the foulest and guiltiest act which crimsons the annals of recorded time? No, sir; not if I can help it. ... Mr. SHELLABARGER. Mr. Speaker, I have desired at some point to interrupt the gentleman and to ask him a question. I have been a little fearful that the last part of the amendment might be construed to give powers to the States regulating the matter of the elective franchise, which they did not even now possess, in the way of excluding an entire race from the right of the elective 46

franchise. As our Constitution now is, we have at least this restraint on the power of the States, to wit, that they cannot so limit that franchise that the State shall cease to be republican, cease to be based upon the voice of the people. Now I was fearful—and I do not mean to take up the gentleman’s time—the introduction of this clause, giving inferential power to the States to exclude a race, attaching as the only consequence that that exclusion should prevent them from being represented, might be mischievous by reason of authorizing States at pleasure to disfranchise whole races of men, and to concentrate the power in the few. This authorization of the disfranchisement of race being introduced into the Constitution might be held to modify the present sense of the clause relating to the States being republican, and might thus tend to lessen the power of the people. If worthy of it, I would like to hear the gentleman upon this matter. Mr. CONKLING. Any suggestion from the gentleman from Ohio is always worthy of respect. He says the Constitution does contain one guaranty, at least, against such a contingency as he points to; and the whole strength of the argument is this: because the amendment says whenever any State shall deny or abridge the elective franchise on account of race and color, an implication is suggested in which there is danger. If there is an implication, and if there is a recognition, or even an authorization such as the gentleman supposes, do we not see, at least, that nothing more is suggested than has always been permitted with universal acquiescence by the courts and the nation? The right to exclude class has been construed into the Constitution or in spite of the Constitution already, and all the restraint we now have would remain, I think. ... The amendment is common to all States and equal for all; its operation will of course be practically only in the South. No northern State will lose by it, whether the southern States extend suffrage to blacks or not. Even New York, in her great population, has so few blacks that she could exclude them all from enumeration and it would make no difference in her representation. If the amendment is adopted, and suffrage remains confined as it is now, taking the census of 1860 as the foundation of the calculation, and the number of Representatives as it then stood, the gains and losses would be these: Wisconsin, Indiana, Illinois, Michigan, Ohio, Pennsylvania, Massachusetts, New Jersey, and Maine,

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would gain one Representative each, and New York would gain three; Alabama, Kentucky, North Carolina, South Carolina, and Tennessee, would each lose one; Georgia, Louisiana, and Virginia would each lose two, and Mississippi would lose three. It has been insisted that “citizens of the United States” and not “persons” should be the basis of representation and apportionment. These words were in the amendment as I originally drew it and introduced it, but my own judgment was that it should be “persons,” and to this the committee assented. There are several answers to the argument in favor of “citizens” rather than “persons.” The present Constitution is, and always was, opposed to this suggestion. “Persons,” and not “citizens,” have always constituted the basis. Again, it would narrow the basis of taxation and cause considerable inequalities in this respect, because the number of aliens in some States is very large, and growing larger now, when emigrants reach our shores at the rate of more than a State a year. Again, many of the large States now hold their representation in part by reason of their aliens, and the Legislatures and people of these States are to pass upon the amendment. It must be made acceptable to them. For these reasons the committee has adhered to the Constitution as it is, proposing to add to it only so much as is necessary to meet the point aimed at. I have thus, Mr. Speaker, endeavored to maintain a proposition to which I have given some thought, not, however, with a view to speaking upon it until within a few hours. I have passed over some things which might easily be said in its favor. It does not go as far as many persons think it ought, it goes further than many persons will admit it should. I believe it a wise and salutary provision, a solid block needed in the foundation of our structure, for the sake of the white man and the black. Those who lend a helping hand to put it in its place will, I think, deserve well of their country. He who does most toward incorporating it in the Constitution may hope to be heir to the praise once not well bestowed, Urbem lateritiam invenit, marmoriam reliquit.

21 US House, Debate, Apportionment Amendment, Women’s Suffrage Petition January 23, 1866*

The SPEAKER stated the regular order of business to be on the following joint resolution: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States; which, when ratified by three fourths of the said Legislatures, shall be valid as part of said Constitution, namely: Article —. 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: Provided, 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.

Mr. STEVENS. I move to insert the word “therein,” so that it will read as follows: Provided, That whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation.

I now demand the previous question. Mr. JENCKES. I ask the gentleman a question concerning the construction of the proposed amendment to the Constitution. If it bears the construction I conceive it may, I shall be obliged to vote against it. Perhaps the gentleman can answer the question satisfactorily. The proviso is, that whenever the elective franchise shall be denied or abridged in any State on account of race or * Cong. Globe, 39th Cong., 1st Sess., 376–89 (Jan. 23, 1866).

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color, all persons therein of such race or color shall be excluded from the basis of representation. It says nothing about the qualification of property. Suppose this amendment is adopted by three fourths of the States, and becomes a part of the fundamental law of the land, and after its adoption the State of South Carolina should reinstate the constitution of 1790, striking out the word “white” and reestablishing the property qualification of fifty acres of land, or town lots, or the payment of a tax, there would then be no discrimination of color in the State of South Carolina, yet the number of electors would not be enlarged five hundred, and the basis of representation would be exactly as it is, with the addition of two fifths of the enfranchised freedmen. A Representative to this House would be reelected by the same voting constituency as now, perhaps with the addition of five hundred black men in the State. If it bears this construction, and I believe it does, I shall vote against it. If any of the States should establish property qualification based upon lands, then the same oligarchy would be enthroned on the whole basis of representation, entitled to a larger number of Representatives than now in this House, and elected by a slightly enlarged number of qualified electors, giving power more firmly to that very aristocracy we have sought to overthrow. Mr. STEVENS. All I can say is that if the law applies impartially to all, then no matter whether it cuts out white or black. Mr. FARNSWORTH. Suppose the State of South Carolina should provide by law that no negro should hold real estate. Mr. STEVENS. Then the amendment operates. I demand the previous question. Mr. BROOKS. Let me put a question. The proviso reads that whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation. There are in California and Oregon something like one hundred thousand coolies. They are increasing and going into the western States to build railroads. Are they included? Mr. STEVENS. I understand that if they are excluded by the laws of California because they are Chinese, this amendment operates upon them because they are excluded on account of race. Mr. BROOKS. They will not be counted in the basis of representation?

Mr. STEVENS. Not at all; it was so intended; the word “race” was inserted for that purpose. Mr. BROOKS. One other question. Why exclude the Indian? Is he not a man and a brother? A Member. The Constitution now excludes him. Mr. STEVENS. “Excluding Indians not taxed.” Mr. BROOKS. We exclude them at this time, but are not Indians our brethren? Mr. STEVENS. The Constitution of the United States has always excluded them. Mr. BROOKS. Why not, as we are amending the Constitution, embrace the Indian as a man and a brother? Mr. STEVENS. Because they are a tribal race, have their own separate governments, and, as a general rule, are not citizens. Mr. BROOKS. Not in Kansas, Dakota, Montana, Nebraska, and a number of other Territories. Mr. CONKLING. They are taxed there. Mr. BROOKS. No, they are not; they are excluded from voting. There are no Indians that vote in Dakota; Representatives and Delegates from that quarter know that very well. Why not embrace them all, as we are making a liberal Constitution? Mr. STEVENS. We have not done it for fear the gentleman from New York [Mr. Brooks] and others would make that an objection. [Laughter.] I call the previous question. ... Mr. BROOKS. Yes, if the States exclude them from the elective franchise; and the States of California and Oregon and Nevada are to be deprived of representation according to their population upon the floor of this House by the introduction of this amendment. I asked him also if the Indian was not a man and a brother, and I obtained no satisfactory answer from the honorable gentleman. I speak now, in order to make his resolution consistent, for no one hundred thousand coolies or wild savages, but I raise my voice here in behalf of fifteen million of our countrywomen, the fairest, brightest portion of creation, and I ask why they are not permitted to be represented under this resolution? Mr. CONKLING. They are. Mr. BROOKS. Persons are. Mr. CONKLING. I thought they were persons. Mr. BROOKS. And so they are, but they are excluded from all voting. Why, in organizing a system of liberality and justice, not recognize in the case of free women as well as free negroes the right of representation? 48

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Mr. STEVENS. The gentleman will allow me to say that this bill does not exclude them. It does not say who shall vote. Mr. BROOKS. I comprehend all that; but the whole object of this amendment is to obtain votes for the negroes. That is its purport, tendency, and meaning; and it punishes those who will not give a vote to the negro in the southern States of our Union. That is the object of the resolution, and the ground upon which it is presented to this House and to the country. This is a new era; this is an age of progress. Indians are only Indians, but negroes are men and brothers; and why not, in a resolution like this, include the fair sex too, and give them the right to representation? Will it be said that this sex does not claim a right to representation? Many members here have petitions from these fifteen million women, or a large portion of them, for representation, and for the right to vote, an equal right with the stronger sex, who they say are now depriving them of it. To show that such is their wish and desire, I will send to the Clerk’s desk to be read certain documents, to which I ask the attention of the honorable gentleman from Pennsylvania, [Mr. Stevens,] for in one of them he will find he is somewhat interested. The Clerk read, as follows:

—

A Petition for Universal Suffrage. To the Senate and House of Representatives: The undersigned, women of the United States, respectfully ask an amendment of the Constitution that shall prohibit the several States from disfranchising any of their citizens on the ground of sex. In making our demand for suffrage, we would call your attention to the fact that we represent fifteen million people—one half the entire population of the country—intelligent, virtuous, native-­born American citizens; and yet stand outside the pale of political recognition. The Constitution classes us as “free people,” and counts us whole persons in the basis of representation, and yet are we governed without our consent, compelled to pay taxes without appeal, and punished for violations of law without choice of judge or juror. The experience of all ages, the declarations of the fathers, the statute laws of our own day, and the fearful revolution through which we have just passed, all prove the uncertain tenure of life, liberty, and property so long as the ballot, the only weapon of self-­protection, is not in the hand of every citizen. Therefore, as you are now amending the Constitution, and, in harmony with advancing civilization, placing new safeguards round the individual rights of four million emancipated slaves, we ask that you extend the right of suffrage to woman, the only remaining class of disfranchised citizens, and thus fulfill your constitutional obligation “to guaranty to every State in the Union a republican form of government.” As all partial application of republican principles must ever breed a complicated legislation as well as a discontented people, we would pray your honorable body, in order to simplify the machinery of Government and insure domestic tranquillity, that you legislate hereafter for persons, citizens, tax-­ payers, and not for class or caste. For justice and equality your petitioners will ever pray. E. CADY STANTON, New York. SUSAN B. ANTHONY, Rochester, New York.

Standard Office, 48 Beekman Street, New York, January 20, 1866. Dear Sir: I send you the inclosed copy of petition and signatures sent to Thaddeus Stevens last week. I then urged Mr. Stevens, if their committee of fifteen could not report favorably to our petition, they would, at least, not interpose any new barrier against woman’s right to the ballot. Mrs. Stanton sent you a petition; I trust you will present that at your earliest convenience. The Democrats are now in minority. May they drive the Republicans to do good works—not merely to hold the rebel States in check until negro men shall be guarantied their right to a voice in their governments, but to hold the party to a logical consistency that shall give every responsible citizen in every State equal right to the ballot. Will you, sir, please send me whatever is said or done with our petitions? Will you also give me names of members whom you think would present petitions for us? Respectfully yours, SUSAN B. ANTHONY. Hon. James Brooks

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ANTOINETTE BROWN BLACKWELL , New York. LUCY STONE, Newark, New Jersey. ERNESTINE L. ROSE, New York. JOANNA S. MORSE, 48 Livingston street, Brooklyn. ELIZABETH R. TILTON, 48 Livingston street, Brooklyn. ELLEN M. SQUIER , 34 St. Felix street, Brooklyn. MARY FOWLER GILBERT, 294 West Nineteenth street, New York. MARY E. GILBERT, 294 West Nineteenth street, New York. MATTIE GRIFFITH, New York. THE SPEAKER. The ten minutes of the gentleman from New York [Mr. Brooks] have expired. Mr. BROOKS. I will only say that at the proper time I will move to amend—or if I do not I would suggest to some gentleman on the other side to move it—this proposed amendment by inserting the words “or sex” after the word “color,” so that it will read: Provided, That whenever the elective franchise shall be denied or abridged in any State on account of race or color or sex, all persons of such race or color or sex shall be excluded from the basis of representation.

Mr. STEVENS. Is the gentleman from New York [Mr. Brooks] in favor of that amendment? Mr. BROOKS. I am if negroes are permitted to vote. Mr. STEVENS. That does not answer my question. Is the gentleman in favor of the amendment he has indicated? Mr. BROOKS. I suggested that I would move it at a convenient time. Mr. STEVENS. Is the gentleman in favor of his own amendment? Mr. BROOKS. I am in favor of my own color in preference to any other color, and I prefer the white women of my country to the negro. [Applause on the floor and in the galleries promptly checked by the Speaker.] ... Mr. FARNSWORTH. I desire to occupy but a few moments of the time of this House in reference to this

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subject. We have learned by experience that it is necessary that whatever is put in the Constitution, and whatever laws we make in reference to the rights of the men in the rebellious States, must be so hedged about with guards and protections, they must be so plain and so clear, that “the wayfaring man though a fool may not err therein,” or else they will in some cunning manner devise a way of avoiding them. We adopted an amendment to the Constitution that slavery should not hereafter exist in this country except as a punishment for crime. Yet we find those States now reducing these men to slavery again as a punishment for crime, and declaring for every little petty offense the black man may commit that he shall be sold into bondage. So that even that constitutional provision which we made, and which was intended to knock the shackles off every man who was not guilty of crime in the United States, is avoided and got around by these cunning rebels. Now, sir, it is necessary, it seems to me, that whatever constitutional provision we may make should be made clear, manifest, certain. If possible, we should make it enforce itself, so that by no cunningly devised scheme or shift can they nullify it. It seems to me that the resolution reported by the joint committee on reconstruction is not so clear as it ought to be; I am afraid that it will be worthless. Several points have been made, several reasons have been given, among others the one suggested by the gentleman from Rhode Island [Mr. Jenckes] and the gentleman from Maine [Mr. Blaine] in reference to the property qualification. So, too, a State may enact that a man shall not exercise the elective franchise except he can read and write, making that law apply equally to the whites and blacks, and then may also enact that a black man shall not learn to read and write, exclude him from their schools, and make it a penal offense to instruct or to teach him, and thus prevent his qualifying to exercise the elective franchise according to the State law. And they may do in regard to the elective franchise just what they are doing now in regard to slavery. They may provide that no man shall exercise the elective franchise who has been guilty of a crime; and then they may denounce these men as guilty of a crime for every little, imaginary, petty offense. They may declare that no man shall exercise the right of voting who has not a regular business or occupation by which he may obtain a livelihood, and then they may declare that the black man has no settled occupation and no business. It seems to me, therefore, necessary that we should, by some provision in this amendment, settle this beyond a peradventure,

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so that none of these shifts or devices may defeat the purpose of the enactment. But, Mr. Speaker, there is another objection to this proposition, which lies deeper than those I have already mentioned; and while I do not say that I will not vote for this as the best thing that we can do under the circumstances, yet I do say that if I vote for it I shall do so very reluctantly. And I protest here that I will not accept any such constitutional amendment as this as a substitute for that full measure of justice which it is our duty to mete out. I will not promise that hereafter I will not propose and vote for and advocate with whatever power I possess a measure which will give to all the people of the States that which is their due. Sir, I will not admit that any State has the right to disfranchise a portion of its citizens; and if this proposition makes, expressly or by implication, any such admission, I cannot vote for it. I know it is said that the States have exercised the right of restricting suffrage, and they do now in many of the northern States restrict it, and deny the right of voting to certain classes of citizens. Yet by no vote of mine shall there be incorporated in the Constitution a provision which shall, even by implication, declare that a State may disfranchise any portion of its citizens on account of race or color. We have no right to give our countenance to any such injustice. ... Mr. BAKER. ... I am reluctant to indorse an amendment to the Constitution, framed in this day of growing liberty, framed by the party of progress, intended to make representative power in this Government correspond with the quantum of political justice on which it is based, and yet which leaves any State in the Union perfectly free to narrow her suffrage to any extent she pleases, imposing proprietary and other disqualifying tests, and still strengthening her aristocratic power in the Government by the full count of her disfranchised people, provided only she steers clear of a test based on race or color. Nor am I to be answered that such would not probably be the practical fact, though the power existed to make it so. In framing an amendment of our fundamental law, which may exist for centuries without a change, we should be exceedingly modest in undertaking to prejudge that power left to a State to very materially narrow its suffrage, and yet retain its undiminished weight in the system, would never be exercised by such State. The wiser course, it appears to me, now we have taken

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it in hand, is to put the right thing in the Constitution, so wording it that no considerable body of the people in any State can be disfranchised, no matter on what account, and still be numbered in her basis of representation. Then the mischief we are aiming at will be removed—not scotched—removed with the glad sanction of the people; and the guarantee of its removal will be in the terms of the Constitution itself, and not left to the fortuitous pleasure of particular States, free to go on, in great measure, as heretofore, excluding their people from suffrage and yet having them counted in the basis of their representation. The fundamental idea is to leave the primary basis of representation where it was placed by our fathers, the whole body of the people, then excluding from the count according to disfranchisement by the States, no matter whether for race or color or other cause. No State should reserve in her basis of representation persons disfranchised and not represented, no matter on what ground she so excludes them. ... Mr. TRIMBLE. ... Sir, this amendment is to operate for weal or for woe upon a people who have been lately in rebellion against the Constitution of the United States; who have no voice here to-­day to plead for them, because their rights and privileges upon this floor are denied them. Would it not be well, would it not be in the spirit of harmony and concession, a spirit, too, that has to some extent characterized the action of parties before in power throughout this whole conflict, to wait before they pass this amendment until that people can be heard upon this floor? Mr. LYNCH. Will the gentleman yield for a moment? Mr. TRIMBLE. For what purpose? Mr. LYNCH. To ask a question. Mr. TRIMBLE. Certainly. Mr. LYNCH. I want to ask the gentleman, why do not the men he is speaking for have the privilege of being on this floor? Why are they not here now? Mr. TRIMBLE. I will answer. They have the right, in my judgment, under the Constitution, to be here. Many of them are now about this Capitol with the broad seal of their States now in the hands of a committee of this House, giving them authority and power to take seats on this floor, as much as you and I or any one else; but they are kept out by the voice of this House. Mr. LYNCH. The gentleman misapprehends my question. It is, by whose fault they are not here to-­day. Mr. TRIMBLE. By whose fault? Why, it is because the

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doors of this House are closed against them by the party in power. Mr. LYNCH. Does it not go further back than that? Mr. TRIMBLE. I do not propose to go further back. [Laughter.] I hope the gentleman is satisfied. Mr. LYNCH. I am. Mr. TRIMBLE. ... Sir, this proposition and all kindred propositions, in my judgment, are in direct opposition to the plain provisions of the Constitution itself, to the reserved rights of the States, which are sacred, and should be so regarded by Congress and the people. What are the principles upon which this Government has rested? Sir, this Government was formed by coequal States, who delegated to the General Government all the powers necessary and proper to secure the great end of protecting the general interests of the whole, reserving to the States all powers not delegated by the Constitution to the Federal Government. Why do I say this? Because it is the language of the Constitution itself. It declares that—

stitution by the people of the North, in my judgment there never would have been a slaveholders’ rebellion. But by the acts of those northern States, in the passage of personal liberty bills in violation of the Constitution, these men were enabled to seize on those unconstitutional acts as pretexts by which to fire the people of the South and precipitate them into rebellion; and well did they work upon their prejudices for that purpose. In my judgment, in 1860 and 1861, in some of the States of the South, that much-­abused section of country, there was a large majority in favor of the Constitution and the Union; and if they could have been made to believe that their rights would have been secure under that Constitution, they could not have been drawn into revolution. What were the issues presented in the South to the people in 1860 and 1861? Said the men who proposed to precipitate the people into revolution, “Will you stand here and act with the party in power, with an Administration selected upon a sectional issue, selected for the avowed purpose of destroying the South, and striking down our rights, not only in the Territories, but in the District of Columbia, in the navy-­yards and the arsenals, and in the States themselves?” Maynard, and other men like him, stood up and said, “Gentlemen, the object and purpose of the party in power is to stand by the Constitution and by the rights of the people North and South.” They repudiated this idea, and denied that these were the issues that were in question. And what did Congress then say upon that subject? And how different are the acts of the majority here to-­ day from this resolution, which I will read, expressing the will and pleasure of Congress in 1861:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Hence the powers not delegated to the Federal Government by the States still rest in the States, and there is no power on earth that can deprive the States of them. While I say that, I do not desire to be understood as defending the doctrine of secession. While I desire to maintain the municipal sovereignty of the States, their inherent and exclusive right to regulate, order, and control their own domestic affairs, also the right to representation in Congress according to the Constitution, I have ever opposed the doctrine of secession. When the doctrine was before the country I opposed it with all the power that I possessed, and I intend to be understood as yielding to the Federal Government every right and power delegated and necessary for her to protect the States and the people thereof respectively. Let her—the Federal Government—exercise the powers delegated and peculiar to her, the States all power no surrendered to the General Government by the Constitution. In that way there will be no question about which any State can make any complaint, or the rights of any citizen or State be invaded. Had there been no violation of the spirit of the Con-

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“Resolved, That the present deplorable civil war has been forced upon the country by the disunionists of the southern States now in revolt against the constitutional Government, and in arms around the capital; that in this national emergency Congress banishes all feelings of mere passion or resentment and will recollect only its duty to the whole country; that this war is not waged upon our part in any spirit of oppression nor for any purpose of conquest or subjugation, nor purpose of overthrowing or interfering with the rights or established institutions of those States, but to defend and maintain the supremacy of the Constitution and to preserve the Union with all the dignity, equality, and rights of the several States unimpaired; that as soon as these objects are accomplished the war ought to cease.”

A. Drafting, doc. 22

This was the declaration of the Congress of the United States; it was the declaration of every political party in this country up to the contest of 1864, when I believe there was a party met in convention in Cleveland, which proposed not to have anything to do with the then distinguished leader of the Republican party—the Chief Magistrate of the United States. They proposed at first to nominate a candidate upon the square issue of negro suffrage in the States. The convention that assembled in Baltimore, from caution or some other cause, did not put in their platform or present to the people any such issue; and so far as I know no political party in this country has ever gone before the people on any such issue. You, my friends, here, were elected in the midst of the most terrific and gigantic civil strife that ever existed; you were elected without regard to this issue of negro suffrage at the dictation of Congress in the States, against the will of the people in such States; you were elected upon the idea of maintaining the Union and standing by the Constitution. And why is not this spirit exhibited here to-­day? Why not pour oil upon the troubled waters and bring back these States with the rights privileges under this Constitutions of our fathers? Why keep them out while you legislate and make a Constitution for them? This matter of amending the Constitution is a very grave matter, even when all to be affected by it are represented, and it should be considered with calmness and with consideration. And the Representatives of the people, before they present this amendment, or any other amendment to the Constitution, for their consideration and ratification, should go before them and argue these propositions pro and con. And then let them return here after that deliberation and consideration, and present their views upon the subject. This is a grave question, and one which ought not to be entered upon without due consideration. Now, sir, as I have intimated before, the party in power have changed front; they have changed entirely their tactics. They are to-­day revolution against the Constitution, ignoring, denouncing principles contained in their own acts in Congress, in their national and State conventions. Where, I ask, will this system of amendment stop? Some eighty amendments are now pending in the two Houses of Congress. When and where will the party in power pause? Sir, a spectator coming into this House and observing the course of legislation would be led to suppose that there are no others than the blacks to be legislated for. It is they who claim exclusive attention.

A large portion of the white citizens of this country, inhabiting the fairest portion of God’s creation, are denied representation here, and no eloquent voice is raised in their behalf to-­day; but the African has numberless champions to plead in favor of his right to vote in the States of the South at the will of Congress.

22 US House, Debate, Apportionment Amendment January 24, 1866*

The SPEAKER stated the regular order of business to be the consideration of the following joint resolution reported by the joint committee on reconstruction: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States; which, when ratified by three fourths of the said Legislatures, shall be valid as part of said Constitution, namely: Article —. 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: Provided, 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.

... Mr. ELIOT. I ask unanimous consent to submit the following amendment: Amend the instructions so as to read as follows: 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

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* Cong. Globe, 39th Cong., 1st Sess., 403–7 (Jan. 24, 1866).

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persons in each State, excluding Indians not taxed; and the elective franchise shall not be denied or abridged in any State on account of race or color.

There was no objection, and the amendment was received. Mr. ELIOT. Mr. Speaker, when the resolution was offered by the committee, and the amendment was proposed which has been the subject of discussion for two or three days, I was very much inclined to lend it my favor because of one consideration, that by the operation of that amendment we should have incorporated into our organic law what would be a great improvement on the past. There is no doubt in my mind on that point. But, after considering the language of the amendment, I am frank to say that I cannot bring myself to record my vote in its favor, and without going into any protracted discussion I shall proceed to state distinctly the grounds of my objection. First, the amendment as it is now reported from the committee is objectionable to my mind because it admits by implication that a State has the right to disfranchise large masses of its citizens. I know perfectly well that the power to do so has been exercised; that States have exerted the power of disfranchisement and abridging the rights of suffrage because of race or color; but no man can show that in that Constitution which the fathers made, and under which we have lived, the right is recognized in any State to disfranchise large masses of its citizens because of race. And I do not want now, at this day, that the Congress of the United States, for the purpose of effecting a practical good, shall put into the Constitution of the land any language which would seem to recognize that right. I think this does so, because it says distinctly, if you shall disfranchise, then the race or color operated against shall not be counted in the basis of representation; thus impliedly saying that States may disfranchise because of race or color if they are content to pay the penalty; that they may disfranchise men of color if they are content to have them excluded from the basis of representation. I do not think that is right. I think we are undertaking to serve God and Mammon. I think we are tampering with political sin; and I think we have no more right to do that than to commit moral sin. I therefore desire, if this shall become the law, it shall be so amended that it shall state in distinct language the political principle which my friend from Pennsylvania [Mr. Stevens] firmly believes, as well as I do, to be right.

The next objection I have to the amendment is this, that it enables a State, consistently with its provisions, by making the right to vote depend upon a property qualification, to exclude large classes of men of both races. A State may legislate in such way as to be in fact an oligarchy, and not a republican State. South Carolina may legislate so as to provide that no man shall have the right to vote unless he possesses an annual income of $1,000, and holds real estate to the amount of five hundred acres. Every one sees that that would exclude multitudes of all classes of citizens, making the State no longer republican but oligarchical. Yet gentlemen say that under the Constitution Congress is bound to see to it that each State shall have a republican form of government. The third objection I have to this amendment is that it controls by implication that power, because, while the Constitution now says that Congress shall guaranty to every State a republican form of government, this amendment as reported by the committee admits by implication that, although a State may so legislate as to exclude these multitudes of men, not on account of race or color, but on account of property, yet, nevertheless, she would have a republican form of government, and that Congress will not and ought not to interfere. Now, sir, I have been in the hope that in the course of this discussion, these difficulties which have occurred to me would be met and obviated. I confess I have not heard them answered; and for the reasons I have briefly stated I shall be compelled to vote against the proposition as it now stands reported from the committee. The amendment which I propose will commend itself to the judgment of the House, as I believe, as both radical and right, if any amendment ought to be made, and while I do not say that I will consent to no other amendment, I believe that this as offered by me substantially effects the change which should be made in our organic law.

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A. Drafting, doc. 23

recently made. At the time of its introduction the able chairman of that committee seemed to think that this body was prepared to pass upon it almost immediately. I have no doubt that he and the other members of that committee were satisfied—truly, sincerely, earnestly, and honestly satisfied—that that proposition was the best provision that could be framed for an amendment. To my mind, sir, objections arose at once; and I regret that a measure is to be pressed here that may raise the question of the construction of other portions of the Constitution, when, it seems to me, language can be found in which to couch the amendment so as not to infringe upon any of the barriers of the Constitution. The amendment as reported would, at least impliedly, give to the States the power to discriminate as to those who shall be allowed the elective franchise. In some method of amending the Constitution I shall concur with the other members of this House; and while I may object to some features of the amendment introduced by the gentleman from Pennsylvania, I have no kind of doubt that one can be so framed as to command the votes of two thirds of the members of this House. But I do hope that any amendment which we may pass will be so framed that no objection can be raised that it trenches upon any other portions of the Constitution which are not intended to be affected. Now, sir, I shall proceed to explain my own objection to this amendment. While the basis of representation contemplated by the body of this resolution is to me somewhat objectionable, yet, if we can agree upon nothing else, I shall assent to it and vote for it. To my mind, a better basis of representation would be the male citizens of the United States; for what we are seeking is a basis of representation, without regard to those who shall be allowed to vote in the States. I shall not, however, dwell long upon the question as between the two kinds of bases for representation, provided the odious feature which is contained in the proviso shall be removed. But, sir, I give notice that, if the proviso of this amendment be retained, if it cannot be changed so as to obviate this objection, I, with my convictions, must necessarily vote against this amendment. The clause of the Constitution, as proposed to be amended, will read thus:

23 US House, Debate, Apportionment Amendment, Speech of John Bingham January 25, 1866*

The SPEAKER stated the regular order of business to be the consideration of the following joint resolution reported by the joint committee on reconstruction: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States; which, when ratified by three fourths of the said Legislatures, shall be valid as part of said Constitution, namely: Article —. 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: Provided, That whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation.

... Mr. HIGBY. Mr. Speaker, I do not propose, upon this occasion, to go into a general debate or discussion upon all the questions that are now before Congress; that is, as to the general condition of the country, and what method should be pursued in order to restore the Union. But, sir, in what little I have to say, I shall confine myself exclusively to the question before the House, and seek some other occasion to speak, if I speak at all, upon the general question. A very important proposition was reported a few days since from the committee on reconstruction by the chairman of that committee. It contemplates the amendment of the Constitution of the United States on a subject second only in importance, in my estimation, to that embraced in the amendment which has been so * Cong. Globe, 39th Cong., 1st Sess., 422–35 (Jan. 25, 1866).

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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

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persons in each State, excluding Indians not taxed: Provided, That whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation. Now, sir, in immediate connection with that, I will read that portion of the Constitution with which, in my judgment, this proviso directly conflicts, and which we may as well blot out if we pass this resolution with this proviso. In section four of article four of the Constitution I find this language: “The United States shall guaranty to every State in this Union a republican form of government.”

Now, sir, we are to consider these things as they will be practically applied. We must take the country as we find it, and try to adapt the Constitution to it. I grant that, if there is any State of the Union that has but one race, and that the white race, with no prospect of its ever having any other, and where a proviso of this character would have no effect whatever to exclude any one, this proviso might not be so objectionable so far as regards that State. But I do say that, by implication, it gives the power to any State to exclude a whole class on account of race or color. I believe that my friend here from Ohio, [Mr. Bingham,] to whom I intend to yield a portion of my time, will attempt to explain how it is that a Government can be republican in form, and yet exclude, if need be, one half of the population from the elective franchise. ... Now, my hope, my wish is that this joint resolution shall go back to the committee. I do not wish it disposed of here, to be voted down. I want, if it is possible, that it shall be so framed that it shall receive the full constitutional majority required, and be a proposition that shall operate with full force in all those States that now have a great population excluded from the rights of citizenship. Mr. STEVENS. If the gentleman proposes to send it back to the committee without instructions, I would ask him what we are to do. There are not quite as many views upon this floor as there are members; but the number lacks very little of it. And how are we to gather up all those views spread through all this discussion, and accommodate all, when each view would now probably receive from one to three votes in its favor? Mr. HIGBY. I have only this to say; with my views of the Constitution, I never can vote for this proposition

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with this provisio in it in its present language. I say that it gives a power to the States to make governments that are not republican in form. Mr. STEVENS. I say to my friend that if I thought that according to any portion, or verse, or chapter of Lindley Murray, by any fair construction of language, such an interpretation could be given as he gives, I would vote against it myself. But I do not believe there is anything in that objection. Mr. HIGBY. “Provided, 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.” Mr. STEVENS. May I ask my friend one question? Does that take from or add to any powers which the States now have? Mr. HIGBY. I beg pardon of the gentleman; he cannot get rid of this proposition in that way. I ask him distinctly if it does not acknowledge a power in a State to do such a thing. Mr. STEVENS. Yes, sir, it does acknowledge it, and it has always existed under the Constitution. Mr. HIGBY. I do not acknowledge that it is in the Constitution as it now is. Mr. STEVENS. Then we do not give it to them. Mr. FARNSWORTH. Will the gentleman from California [Mr. Higby] allow me to make a suggestion to him? Mr. HIGBY. My time is limited, and I have promised to yield a portion of it to the gentleman from Ohio, [Mr. Bingham.] Mr. FARNSWORTH. I desire but a moment. Mr. HIGBY. Very well; I will yield. Mr. FARNSWORTH. My suggestion is this: the Constitution now provides that Congress shall not until a certain year deny to any of the States the right to import slaves—that is the meaning of it. Now, the language of that provision of the Constitution did not give the right to the States to engage in piracy. Yet the States did understand that the Constitution authorized them to continue this piracy until the year named, and they did continue to import slaves and sell them. And can it not be implied from language not so clear, not so strong, that by this amendment a State is given the right to disfranchise the half of her people? Mr. STEVENS. Nobody understood it so; everybody understood that without that prohibition they had the right, and with that prohibition it was restrained from a certain time; nothing more.

A. Drafting, doc. 23

Mr. HIGBY. I now yield the remainder of my time to the gentleman from Ohio, [Mr. Bingham.] The SPEAKER pro tempore, (Mr. Wentworth.) There are fifteen minutes left of the time to which the gentleman from California [Mr. Higby] is entitled. Mr. BINGHAM. I thank the honorable gentleman [Mr. Higby] for yielding me the floor, and I hope it will be the pleasure of the House to extend the time, as I shall not be able in the fifteen minutes allowed me by the gentleman’s courtesy to present properly my views of the important question before us. I stand here this day impressed with the belief that amendments to the Constitution of the United States are imperiously demanded by reason of the changed condition of the country. If the loyal people who have by arms saved the Republic shall not insure its safety by laws as well, then I fear in vain have the bravest and the noblest and the best of its sons gone down in its defense amid the tempest and the shock of battle. Unless this Congress, charged as it is, like the first Continental Congress, with the care of the liberties of all, shall perform the duty enjoined upon it, and send to the people the necessary constitutional provisions and guarantees for the future safety of the Republic, I apprehend that there are men how within these walls who may learn, when it is too late, that the ballot in the hand of the conspirator is more dangerous to the safety of the Republic than the bayonet. If the amendment reported by the joint committee of the two Houses, or that proposed to be substituted by my honorable colleague, [Mr. Schenck,] be all that this House proposes to do in this regard, then I can only say for myself that I tremble for the future of my country. But is it all that this House proposes to do? Have gentlemen forgotten that but the other day this House, with singular unanimity—by all the votes, I believe, that it can command save six—sent to the Senate a proposed amendment to the Constitution, which, however, informally expressed, is intended by the authority of the whole people to declare by the organic law that neither the United States nor any State of this Union shall ever assume or pay any debt or liability contracted or incurred in aid of the late rebellion, or which may hereafter be contracted or incurred in aid of any rebellion against the United States? Does it not suggest itself to the mind of every gentleman now within the hearing of my voice that the safety of the Republic requires that not simply that amendment shall pass into your Constitution, but that there should be added to it the provi-

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sion that no State in this Union shall ever lay one cent of tax upon the property or head of any loyal man for the purpose of paying tribute and pension for life to those who rendered service or received wounds in the prosecution of this great, unmatched, and atrocious rebellion against your country? Does it not occur also to the considerate minds of gentlemen that it would be well to place the further limitation upon these several States, if they are to be restored to their equal position in the union of the States, as I trust they are to be at no distant day, that no State in this Union shall levy tribute upon its people for the purpose of indemnifying, in whole or in part, any rebel against losses or damages incurred either in the prosecution of the rebellion or inflicted on rebels in its suppression? I ask gentlemen to consider that, as your Constitution stands to-­day, there is no power, express or implied, in this Government to limit or restrain the general power of taxation in the States. And are gentlemen, admitting this fact, as it is now stated, to be true, to sit here and deliberate for one moment whether it is necessary to place such a limitation upon these States if they are to be restored, and especially if they are to be restored on the basis claimed by gentlemen on that side of the House who oppose this amendment—restored with the governing power in every one of the eleven rebel States in the hands of the very men who but yesterday waged war against the life of the Republic? But, sir, even that amendment, desirable as it is, is yet not all that, in my mind, the safety of the Republic requires, and our duty and our oaths alike enjoin upon us to present to the people. Why, sir, I may be allowed to say here, without violating any rule of this House, that the joint committee of fifteen, representing both branches of Congress, do not themselves consider that they have wholly discharged their duty in this behalf to the country. It is not for me to say here what they have done, or to anticipate what they may do in the premises, further than to say that I doubt not they will discharge their whole duty. But I may say that the committee has under consideration another general amendment to the Constitution which looks to the grant of express power to the Congress of the United States to enforce in behalf of every citizen of every State and of every Territory in the Union the rights which were guarantied to him from the beginning, but which guarantee has unhappily been disregarded by more than one State of this Union, defiantly disregarded, simply because of a want of power in Congress to enforce that guarantee. I do not doubt, sir,

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that if the committee shall succeed in presenting in fit and proper form this proposed amendment to the Constitution, it will receive the assent, I might almost say, of every gentleman in this House. Why should it not? I understand very well, Mr. Speaker, that there are gentlemen for whom I have the profoundest respect, not only for their great attainments, but for their generous and patriotic motives, who contend, against all past constructions and all past experience, that the Congress of the United States has the power, implied necessarily, to enforce all the guarantees of the Constitution. In my judgment, unless some such general provision as that to which I have referred be adopted, it is in vain that you hope for future safety or future peace in the country; and I beg leave to say to gentlemen who reason in the manner I have indicated, and therefore seek to evade the discharge of this great duty incumbent upon us, that, notwithstanding the respect to which their opinions are entitled, the continued construction of every department of this Government, legislative, executive, and judicial, from that day on which Washington, for the first time, before God and his country, took the oath to “preserve, protect, and defend the Constitution of the United States,” has conceded that no such power is vested in the Federal Government. Gentlemen will pardon me for further reminding them of the special express powers of the Constitution, and that the general express grant is that Congress shall have power to make all laws necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof. In what I have said upon the limitations of power, I do not express my own opinion, but the opinions of others and the uniform construction. Sir, your Constitution declares that no person shall be deprived of life without due process of law; yet, in support of what I have just said on the necessity of an additional grant of power, allow me to remind the House of the fact that this highest right which pertains to man or citizen, life, has never yet been protected, and is not now protected, in any State of this Union by the statute law of the United States. And if to-­morrow, sir, your President, because of his supposed fidelity, and I might add of his real fidelity to his duty, in so far as I understand his position, crossed the line of your exclusive jurisdiction in this District into the State of Maryland, into the county of Charles, and were to be there

set upon by the whole body of the community and murdered, for no fault of his, but simply because of his supposed fidelity to his duty, your Government is powerless by law to avenge his death in any of your civil tribunals of justice. And this results from the accepted construction that this Government has not the power by law to enforce in the States this guarantee of life. I repeat then, sir, in view of the facts stated, that it is well for the Representatives of the people to consider that in passing this amendment they take but one step toward the attainment of the object sought to be attained by all the several propositions proposed, to secure to each citizen and each State alike their equal rights in the Union. Mr. Speaker, touching this and all other amendments to the Constitution, by giving them my support, I do not subject myself to the gratuitous imputation of the gentleman from Illinois [Mr. Marshall] who spoke yesterday, of a want of reverence either for the Constitution or its illustrious founders. I beg leave, at all events, to say, with all possible respect for that gentleman, that I do not recognize the right of any man upon this floor, who was a representative of that party which denied the right to defend the Constitution of his country by arms against armed rebellion, to become my accuser. In seeking to amend, not to mar, the Constitution of the United States, we ought to have regard to every express or implied limitation upon our power imposed by that great instrument. When gentlemen object to amending the Constitution, when they talk sneeringly about tinkering with the Constitution, they do not remember that it is one of the express provisions of that instrument that Congress shall have power to propose amendments to the Legislatures of the several States. Do gentlemen mean by the logic to which we have listened for the past five days on this subject of our right to amend, that we are not to add anything to the Constitution and that we are to take nothing from it? I prefer to follow, in this supreme hour of the nation’s trial, the lead of a wiser and nobler spirit, who by common consent was called while he lived “the Father of his Country,” and, now that he is dead, is still reverenced as “the Father of his Country,” and to be hailed I trust by the millions of the future who are to people this land of ours as “the Father of his Country.” In his Farewell Address, his last official utterance, Washington used these significant words, which I repeat to-­day for the consideration of gentlemen: 58

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“The basis of our political systems is the right of the people to make and to alter their constitutions of government.”

ognized as distinctly in your Constitution as it is proclaimed in your Declaration. In the first article, second section of the Constitution of your country, it is provided that Representatives in Congress “shall be chosen every two years by the people of the several States,” thus affirming that the law-­making power can only exist by the consent of the governed, as the right of the people. Who are “the people” of the several States referred to in the Constitution? The term “the people” is borrowed literally from the Articles of Confederation, adopted, as the House knows, ten years before the Constitution, as articles of perpetual union between the several States then and since known as the United States. It is a term which had a definite and clearly understood meaning on the day that the Convention incorporated it into the Constitution of the United States. It meant generally the whole body of free citizens, and specially as the political power all free male citizens of full age in every State of the Union. I asked the attention of the House the other day to the fact, and I call their attention to it now, that in the Articles of Confederation it was expressly provided in words as follows:

We propose, sir, simply to act in accordance with this suggestion of Washington. We propose, in presenting these amendments, to alter, in so far as the changed condition of the country requires, the fundamental law, in order to secure the safety of the Republic and furnish better guarantees in the future for the rights of each and all. The SPEAKER. The hour has expired. Mr. BROOMALL. I hope the gentleman from Ohio will be allowed to finish his remarks. Mr. BINGHAM. I shall be obliged to the House; it is a favor which I have seldom asked. There was no objection, and it was ordered accordingly. Mr. BINGHAM. Mr. Speaker, I am for the pending amendment to the Constitution of my country, and the other amendments to which I have already referred. I am for this and for the other essential amendments indicated, for the sake of the Union, and for the sake of the Constitution of the Union. Beyond that, if I know my own mind or my own heart, I have no feeling on this question. It towers above all party consideration; it touches the life of the Republic, and not the miserable inquiry whether this or that party shall be successful in the coming contest. It is for this House to decide whether amendments are necessary to the safety of the country and the protection of the people. I am for the proposed amendment from a sense of right—that absolute, eternal verity which underlies your Constitution. The right is the law of the Republic. So it was proclaimed in your imperishable Declaration by the words, all men are created equal; they are endowed by their Creator with the rights of life and liberty: to secure these rights Governments are instituted among men, deriving their just powers from the consent of the governed; and by those other words, these States may do what free and independent States may of right (not of wrong but of right) do. The Constitution recognizes this limitation upon the States that they may do, subject to the Constitution of the United States, what free States may of right do. That which is right and just limits every sovereignty, in law, whether it be obeyed or disobeyed. Every nationality is bound to respect the just and the right. This truth rec-

“The free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States.”

Can any one fail to perceive that the terms “the people of the several States,” (article four,) borrowed literally from the Confederation and embodied in your Constitution, must mean the free citizens of each State? Who does not know that under the Confederation the majority of male free citizens of full age held the right to the elective franchise in every State then in the Union? I appeal to every gentleman in this House to bear witness, that in every State of the original thirteen, on the day that the Convention embodied in the Constitution the words, “the people of the several States,” the majority of free male citizens of full age, by the express terms of the State constitutions and their statute laws, held the political power of the several States. The employment of those terms in the Constitution of the United States was therefore but the clearest declaration that under the Constitution of the United States, as it had been under the Confederation, the right to exercise the elective franchise, to elect Representatives, was the right of the majority of free male citizens over twenty-­ one years of age, and that this right of the people should 59

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continue while the Constitution of the United States continued and remained unchanged. The words “free persons” are also used in your Constitution; therefore by the words “free citizens” and “free persons,” as used in your Constitution and in the Articles of Confederation, it was necessarily implied that there were citizens in the Republic not free, but bond. It was understood by the framers of the Constitution, and was expected by them and intended, that the day would come when the prefix “free” before “persons” in that instrument should cease to be operative and become meaningless. Sir, the Constitution was framed with a view to that result, and to make it inevitable. It was hoped that the day of deliverance to the bond citizens of the Republic would come, not by violence, but by force of public opinion, operating on the minds and consciences of the people and speaking finally, either by the action of each State or through an amended Constitution, as the supreme law of the land. If gentlemen doubt upon this subject, they will pardon me for asking their consideration to one or two provisions of the Constitution of the United States. First, the ninth section of the first article provides that—

slave States admitted into this Union. It meant that no new States should be admitted under the Constitution armed with the power to practice that injustice in common with the then existing States for twenty years. The provision “on the same terms with the original States” was rejected; and what was the result? My own noble Commonwealth, Ohio, was admitted into the Union in 1802, six years before the Constitution could speak against the foreign slave trade carried on by the original States. Ohio was admitted as every man knows, only on the express condition that she should not then or forever after engage in either the domestic or foreign slave trade. I think, sir, I have said enough and more than enough to justify the remark that it was intended by the framers of the Constitution that the day should come when the words “free person” in the Constitution would cease to be operative, for the simple reason that all would be free and none bond in the United States. Mr. Speaker, touching the construction which I have put upon the words of the Constitution I beg to call the attention of the House to a few authorities to show that by the terms “the people of the several States” the Constitution did guaranty to the majority of free citizens in every State in this Union the right to control, by suffrage, the future power of their States and the future power of the Republic, but that by the guarantee the majority did not become empowered to take away the equal rights of the minority who were their peers. I read from Story, (3d Story, page 565:)

“The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808.”

“It has always been well understood among jurists in this country that the citizen of each State constitute the body-­politic of each community, called ‘the people of the States;’ and that the citizens of each State in the Union are ipso facto citizens of the United States.”

This was simply a provision to the end that the Constitution, as to the foreign slave trade by any of the States then existing, should not take effect, until 1808. In section three, article four, it is provided as follows: “New States may be admitted by the Congress into this Union.”

The attempt was made in the Convention to add to this provision for the admission of new States the words “on the same terms with the original States,” thereby securing to every new State admitted before 1808 the reserved power, not right, but power, to unite with the States then existing in the wild and guilty traffic in slaves both by land and sea. Thank God, the great body of the Convention rejected with scorn the proposition. What did that rejection mean? They struck out on the 29th of August, 1787, the words, “upon the same terms with the original States.” What did that mean? It meant that there should be no

Rawle writes as follows:

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“The citizens of each State constituted the citizens of the United States when the Constitution was adopted. The rights which appertain to them as citizens of those respective Commonwealths accompanied them in the formation of the great compound Commonwealth which ensued. They became citizens of the latter, without ceasing to be citizens of the former; and he who was subsequently born a citizen of a State became at the moment of his birth a citizen of the United States.”—Rawle on the Constitution, p. 86.

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Chancellor Kent says:

“If a slave born in the United States be manumitted, or otherwise lawfully discharged from bondage, or if a black man be born within the United States and born free, he becomes thenceforward a citizen.” —2 Kent’s Commentaries, fourth edition, p. 257, note.

I might as well say in this connection that the majority of the Supreme Court of the United States, even in the Dred Scott decision, were compelled to recognize the principle for which I contend this day. I read from that opinion: “The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing. They both describe the political body, who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives.” * * * * “It is true, every person, and every class and description of persons, who were at the time of the adoption of this Constitution recognized as citizens in the several States, became also citizens of the new political body.”—19 Howard, Supreme Court Reports, p. 404.

Mr. Speaker, the Constitution of our country has been amended. The day anticipated by the framers of the Constitution has come, when there are none but free citizens in the Republic—the bond having become free. The day of the freedman’s deliverance has come, not without suffering, not without sorrow, not without martyrdom, not without broken altars and broken hearts, not without storm and tempest, such as had not been since man was upon the earth; not without darkness, thick darkness that might be felt, and fire running along the ground. Though in terror, though in anguish, the day has come, and all are free in the Republic by the sovereign will of the whole people. Every slave the moment he is emancipated becomes a “free citizen,” in the words of the Confederation, becomes a “free person,” which embraces all citizens, in the words of our Constitution, becomes equal before the law with every other citizen of the United States. What, then, sir, is the result? Simply this, that the Constitution must be amended! I agree, if the late rebel States would make no denial of right to the emancipated citizens no amendment would be needed. But they will make denial. The question is therefore directly before

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us, whether any of the States which shall be reorganized and admitted to exercise all the powers of a State in this Union to-­day under the Constitution of our country, by which it is declared that all the citizens of the Republic are free, and that bond citizens are no longer to be found in any State or Territory in this Union, shall be permitted to have representation upon this floor, when by the fundamental law or by the statute law of such State the minority of the citizens of the State disfranchise the majority of its free male citizens of full age? That was not so when our Constitution was adopted. There was then no State in this Union wherein any considerable portion of the free citizens of the United States, being male persons over twenty-­one years of age, were disfranchised. I but state a matter of fact within the knowledge of every gentleman here when I say that in at least five of the States of the Union there was no distinction made at all on account of color between free citizens of the United States in the exercise of the elective franchise. At that day no State would dare to assert any such power in a minority of the majority of free citizens. The question, then, that underlies this controversy is this, whether we will stand by the Constitution in its original intent and spirit, or like cravens abandon it. I assert it here to-­ day, without fear of contradiction, that the amendment pending before this House is an amendment conforming exactly to the spirit of the Constitution and according to the declared intent of its framers. If there is any gentleman who is still in doubt upon this subject, I ask him to consider the fact to which I before referred, and which is indisputable, that no State was admitted into this Union at the time of the organization of the Government, which either directly or indirectly intimated that a majority of the free male citizens of the United States within its limits should be or lawfully could be disfranchised by the minority. The House cannot assent that any State shall do that under the Constitution of the United States. Mr. ELDRIDGE. Will the gentleman allow me a moment? Mr. BINGHAM. I hope the gentleman will excuse me. The House has kindly extended my time, and I desire to conclude my remarks in as brief time as may be. After I shall have done so, if the House is disposed, I will hear anything the gentleman may have to say. I have endeavored to make the point clear that the issue now before this House is whether the Constitution shall be so amended as to secure to the free citizens of each State equal rights. The point raised upon

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the proposition reported by the committee is whether the declared intent of the Constitution of your fathers shall be enforced, or whether it shall be basely surrendered, by admitting that when all are free, a minority of the citizens of a State may disfranchise a majority of the male citizens of full age of the United States within such State. I deny their right to do so. I might go further in this argument, and say, with the late Chancellor Kent, that whenever the majority of a State inserted the word “white” as a condition of the exercise of the elective franchise “it deserved consideration whether such exclusion would not be opposed to the Constitution of the United States.” I believe that the free citizens of each State were guarantied, and intended to be guarantied by the terms of the Constitution, all—not some, “all”—the privileges of citizens of the United States in every State. That is the express provision of the Constitution. But the question now presented is a very different one from the case just supposed, of the majority of free citizens restricting some of the rights of a minority. My friend from California [Mr. Higby] has informed us that there are one hundred thousand more free colored citizens of the United States in the State of Mississippi to-­ day than there are of white citizens; that there are one hundred thousand more free colored citizens of the United States in South Carolina than there are of white citizens, and then we are gravely told that we must not press this amendment because we are abandoning the Constitution and the intent of our fathers. That is a new discovery, one for which the Democracy ought to take out letters patent, that it was ever intended that a minority of free citizens should disfranchise the majority of free male citizens, of full age, in any State of the Union! For myself I will never consent to it. Well, then, some gentlemen asks, why not go for a constitutional amendment which will declare, once for all, that no State in this Union shall make any distinction in the right of voting between male citizens of the United States, resident within its limits and over twenty-­ one years of age, save in the case of persons convicted of infamous crime after due trial? I will answer with all my heart that I am ready to go for that. But a majority of those with whom I am associated think that this is all that is needed at present, in connection with other propositions to be submitted by them. I am content with that. I want the American people by adopting such amendments to declare their purpose to stand by the foundation principle of their own institutions, the abso-

lute equality of all citizens of the United States politically and civilly before their own laws. That is the issue involved in the amendment presented by the committee. Gentlemen will notice that the first clause of the amendment proposed by the committee is in the express language of the Constitution of the United States, except the word “free.” The word “free” in your Constitution has, I said before, become forever meaningless by your amendment to the Constitution declaring that hereafter a slave cannot be or breathe anywhere within the Republic. This joint resolution says: 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.

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That is the exact language of the Constitution. Indians not taxed are excluded, for the reasons suggested by the venerable chairman of the committee [Mr. Stevens] the other day, that they are tribal, are not part of the body-­politic of the United States until they are subject to taxation. It is objected to this resolution, among other things, that you retain the provision of the Constitution for the apportionment of direct taxes. I ask the attention of the House for a moment to the importance of that provision. I know that in the practice of the Government it has been found entirely useless in time of peace. In the present century there have been but three occasions when that grant of power in the Constitution has been exercised, and those three occasions were in time of war. The effect of the amendment of my honorable colleague [Mr. Schenck] is to strike out the third clause of the second section of article on of the Constitution, which declares that direct taxes shall be apportioned among the several States according to the ratio of representation; but his amendment leaves and does not strike out of the Constitution the provisions of the eighth and ninth sections of article one, the first of which is that the Congress shall have power to lay and collect taxes, &c.; and the second of which is that “no capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.” How, then, will the Constitution stand? Why, sir, it seems to me that this fact is a fatal objection to the proposed amendment of my colleague, [Mr. Schenck.] If you are to dispose of the apportionment clause in

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the first article of the Constitution as to the apportionment of direct taxes among the States, you must go further and limit the power of Congress to tax as provided in the eighth section. Take away the power, as my colleague proposes, to apportion direct taxes among the States, and leave the power as my colleague proposes to impose a direct capitation tax, and you introduce into your Constitution an express power to make unequal and unjust laws, which was abhorred by the makers of your Constitution, and against which they intended to provide a perpetual safeguard in the clause for apportionment of all direct taxes among the States. The effect of my colleague’s substitute, if it be adopted, will be this: the apportionment clause of the Constitution as to direct taxes will be stricken out; the granting clause of the eighth and ninth sections, to lay direct taxes, even a capitation tax, will be retained. What will follow? The express power to enact unequal tax laws, such as are sometimes enacted across the waters under the iron rule of England, the imposition of taxes, so as directly to make the rich richer and the poor poorer. Let me explain. You lay a direct tax of one dollar, or five dollars, if you please, per head upon every citizen of the United States, and you strike out the apportionment clause. The result is that the poor man in his hovel, surrounded by his ragged children, his only earthly treasure, is compelled to pay, according to that assessment, for every member of his household; while the single, childless man, with his $100,000 of annual income, pays not a dollar beyond the assessment on his own head. Under the provisions of the third clause of the second section of article one, which my colleague would strike out, that cannot be. Why? Because a capitation tax is a direct tax, and because the third clause, which my colleague proposes to strike out, requires that every direct tax shall be apportioned, not among the people, but among the States of the Union. The moment you so apportion it, it becomes a tax upon property, not upon persons. I think, Mr. Speaker, that if nothing else were said upon the subject, this objection to the proposed substitute of my colleague would of itself be fatal. With my present view of the matter, therefore, I cannot vote for that amendment. Mr. SCHENCK. Will my colleague yield to me one moment, that I may ask him a question? Mr. BINGHAM. Yes, sir. Mr. SCHENCK. Do I understand my colleague to insist that in the ninth section of the first article there is no provision for any direct tax except a capitation tax?

Mr. BINGHAM. No, sir; I do not take that position. Mr. SCHENCK. The language of that section is:

“No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.”

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Mr. BINGHAM. I do not take that ground, nor did I intimate any such position; but I insist that the terms of the ninth section of the first article of the Constitution affirm beyond all question that every capitation tax is a direct tax; and I will say further that the third clause of section second of the first article of the Constitution, which my colleague by his substitute proposes to strike out, requires and enjoins that every capitation as well as every other direct tax shall be apportioned among the States, and that the moment it is apportioned it ceases to be a tax upon the person and becomes a tax upon property. I insist further that, if you strike out the third clause and lay your capitation tax, and assess it without apportionment, not upon property, but upon the person, you thereby adopt a mode of assessment which the fathers of the Constitution wisely forbade, and which I trust the people of the United States will forever prohibit. Now, Mr. Speaker, what more is there of this proposed amendment reported by the joint committee? I have stated that it stands in the very words of the Constitution, omitting the word “free.” What objection, then, can there be on that side of the House to enacting it? “Oh! the proviso,” say the gentlemen—“the proviso which declares 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.” I beg my friend from California, [Mr. Higby,] and my honorable colleague, [Mr. Shellabarger,] to consider that a grant of power by implication cannot be raised by a law which only imposes a penalty, and nothing but a penalty, for the non-­ performance of a duty or the violation of a right. Within the last hundred years, in no country where the common law obtains, I venture to say, has any implication of a grant of power ever been held to be raised by such a law, and especially an implied power, to do an act expressly prohibited by the same law. The guarantee of your Constitution, that the people shall elect their Representatives in the several States, cannot be set aside or impaired by inserting in your Constitution as a penalty for disregarding it the provision that the majority of a State that denies the equal rights of the minority shall suffer a loss of political power.

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I have endeavored to show that the words of the Constitution, the people of “the States shall choose their Representatives,” is an express guarantee that a majority of the free male citizens of the United States in every State of this Union, being of full age, shall have the political power subject to the equal right of suffrage in the minority of free male citizens of full age. There is a further guarantee in the Constitution, of a republican form of government to every State, which I take to mean that the majority of the free male citizens in every State shall have the political power. I submit to my friend that this proviso is nothing but a penalty for a violation on the part of the people of any State of the political right of franchise guarantied by the Constitution to their free male fellow-­citizens of full age. Mr. HIGBY. Will the gentleman yield to me? Mr. BINGHAM. Most cheerfully. Mr. HIGBY. I ask whether under the amendment we propose to adopt as a part of the Constitution of the United States, a State could not, by virtue of the proviso which it contains, have a right to disfranchise any class of citizens on account of race or color? Mr. BINGHAM. I am sorry the gentleman did not notice what I said before he rose, for I think if he had he would not have made the inquiry. I say that the proviso is a penalty, and nothing but a penalty, inflicted on the State if its ruling class disregard and violate the guarantees of the Constitution of the political right of all the free people therein, being male citizens of the United States of full age, to participate in the choice of electors, by imposing on any part of one class special disabilities not imposed on the other class. The guarantee in the first article of the second section of the Constitution rightly interpreted is, as I claim, this, that the majority of the male citizens of the United States of full age in each State shall forever exercise the political power of the State with this limitation, that they shall never by caste legislation impose disabilities upon one class of free male citizens to the denial or abridgment of equal rights. The further provision is that the United States shall guaranty to each State a republican form of government, which means that the majority of male citizens of full age in each State shall govern, not, however, in violation of the Constitution of the United States or of the rights of the minority. Mr. BROMWELL. I ask the gentleman to let me ask him a question. Mr. BINGHAM. Certainly, although it destroys the order of my remarks.

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Mr. BROMWELL. I ask the gentleman whether the pending amendment reported from the committee does not, by forcible implication, if sanctioned by three fourths of the State Legislatures, admit that a majority may disfranchise a minority? Mr. BINGHAM. As I have before stated, and I beg the gentleman’s pardon for asking his attention to the fact, there has not been such a construction, in my opinion, of a law which imposes only a penalty, for centuries, if ever, in any country where the common law obtains. The construction insisted upon by the gentleman amounts to this, that a law which inflicts a penalty or works a forfeiture for doing an act, by implication authorizes the act to be done for doing which the penalty is inflicted. There cannot be such a construction of the proviso. It is a penalty. It says in terms that if any of the States of the United States shall disobey the Constitution; that if they shall make distinctions in violation of the second section of the first article of the Constitution, that as a penalty such State shall lose political power in this House, to the extent of the whole class or race against any part of whom the unjust discrimination has been made. ... One word more about this much-­abused proviso. It offers an inducement to those States lately in rebellion, when they are admitted to their proper positions in the Union, if they would assert their political power, not only to make the franchise universal, but if the necessity exists to which my colleague [Mr. Schenck] referred yesterday, to unbar the gates of knowledge and allow all the citizens of their States the means either of self-­culture, or of culture through the beneficence and kindness of others. It is true that this amendment may not, as it cannot, compel the States to grant the means of mental instruction. This amendment will not accomplish all that we desire, but it will be a step taken toward the attainment of the end. I trust that before this Congress shall conclude its session amendments will be sent out to the people by which the Congress may upon their ratification be empowered to provide by law that hereafter no State shall make it a crime for a man, whether he be black or white, a citizen of the Republic, to learn the alphabet of his native tongue and his rights and duties. ... Mr. NICHOLSON. I think I can safely say that I shall vote, not only against this amendment, but against any and all amendments to the Constitution that may be

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proposed at this time. The temper and disposition of the majority of this House is not such as should characterize statesmen seeking to alter and fix for future ages the organic law of the land; and if they should finally triumph in the mad schemes in which they are engaged, they will succeed in converting that heretofore sacred instrument, reverenced and obeyed till the present dominant party came into power, from a bond of union to a galling yoke of oppression—a thing to be loathed and despised. The object sought by this amendment is to coerce the several States, and especially the southern States, into conferring upon the negro race the right of suffrage. It will not have that effect in the State I have the honor to represent, as her representation will be neither increased nor diminished by any action she may take upon this subject, being entitled, with other States, “to at least one Representative.” But I protest against the attempt to invade and take away the reserved rights of the States, and that most essential one of determining who shall exercise, within their limits, the sovereign power of voting, the right to restrict its exercise as the interest and safety of their respective governments may require. This is but part of the favorite scheme of New England to take away, one by one, all the powers now exercised by the several States, and make this a consolidated Government, a centralized despotism.

24 US House, Debate, Apportionment Amendment, Speech of William Wright (D-­NJ) January 26, 1866*

Mr. WRIGHT. Mr. Speaker, I had intended to have remained a silent spectator of the stirring scenes which we are witnessing in this Hall upon the important subject under consideration. But silence has ceased to be a virtue. To manifest indifference on so important a subject as that under discussion would justify my constituents in charging me with almost criminal neglect. If I understand the object of the amendment now be* Cong. Globe, 39th Cong., 1st Sess., 458–60 (Jan. 26, 1866).

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fore the House, it contemplates a radical change in the organic law of the nation, and in the character and quality of the voting population. ... Sir, only a few days since a bill was introduced to foist over the unfortunate and unrepresented people of the District of Columbia unqualified universal negro suffrage. Through the medium of the previous question is passed through all the forms of law, as far as this House is concerned, in a single hour. Perhaps this measure of “indecent haste,” in the opinion of the radicals, is necessary to carry out their programme, which, in my humble opinion, if successful, will be but the entering wedge to a great design to thwart the President in his plan of reconstruction, to bar the Representative of the southern States from admission by requiring an oath, the constitutionality of which has been doubted, to coerce the southern States into a concession of negro suffrage and negro equality, or to promote a war of races, having for its sole and only object the retention of political power in the hands of the radicals. ... What Congress could not or would not do in making a direct issue with the President upon his humane plan of reconstruction, is now sought by this amendment to be compassed by indirection. It is boldly demanded, in furtherance of this project, that coercion of the southern people will be resorted to to compel them to relinquish the ancient and well-­settled right to regulate the exercise of the elective franchise in their respective States, and give the negroes unqualified free suffrage, or, until these requirements are acceded to, to diminish or to exclude all the Representatives from the non-­consenting States. This bold attempt to substitute numerical force in the place of constitutional law is to my mind subversive of the Government, and an exhibition of tyranny in its worst and most repulsive form. It is a policy that risks all to save all; and I am in doubt as to which will excel in turpitude, the boldness of its conception, or the baseness of its consummation. Sir, the southern States are called conquered territories. A few days ago, on this floor, a telegram announced that the State of Georgia (one of those self-­same conquered territories) had completed the number of States necessary to the adoption of the constitutional amendment for the extinguishment of slavery. This Hall resounded with the plaudits of all within it who approved the act. So anxious were the radicals to carry out their idea that they did not scruple to apply to or coerce three

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of those conquered territories to legalize the emancipation amendment. Now, the Constitution of the United States requires the approval of the Legislatures of three fourths of the States to perfect the adoption of a constitutional amendment. As such the action of these States was legal, and this House committed itself by its acknowledgment and acceptance. They certainly could not receive such a vote as coming from Territories, as that would be clearly in violation of the organic law. But there was no alternative. They had to be received as States within the Union or not at all. The Clerk had even refused to place upon his list either of those three States by whose votes the desired end had been attained. Yet the House refused to keep up the unities, for in five minutes afterward, when the legally elected Representatives from those States offered their credentials, their right of admittance was denied, the doors of this Hall barred against them, and they were turned ignominiously away. I declare here boldly that such shameful inconsistency and injustice will recoil upon all who participated in its consummation. ... Mr. Speaker, what is the real question before us? It is not simply the emancipation of the colored race, but it contemplates their entire enfranchisement, elevating them without regard to necessity or capacity to a political, and necessarily to a personal and social, equality with the white race. I most respectfully aver that this result would promote an injustice. The negroes, left to themselves, secure in their recently acquired freedom, would be perfectly satisfied with their lot but for the officious meddling of political fanatics. To accomplish the complete subjugation of the southern people these latter suddenly become the advocates of negro equality, forgetful of the consequences that may ensue. Once inaugurate that principle, and it will inevitably lead to a war of races, which may God in His infinite mercy avert. The negro in his simple ignorance is content with his lot. Accustomed to obey, and unused to command, he gracefully accepts his fate, and is happy. But that will not answer the purpose of the fanatics. To lose the negro would absorb their capital and force them into involuntary bankruptcy. Discarding the sage counsels of the wise and conservative men of the country, the “sable sons of Ethiopia,” too ignorant to comprehend, and too hopeful to resist, yield readily to fate, and allow themselves to be set up as idols in the worship of fanatical Vandalism, and become the ready victims of political prostitution. They are petted and praised, and learn

from these fanatics for the first time that they are a persecuted race. They are, in their simplicity, made to believe that their wonderful prowess alone secured the suppression of the rebellion, without the slightest aid or assistance from the “poor white trash” truthfully called the Army of the Union; that gallant band of heroes who upheld the flag of the free, fought for and secured the integrity of the Union, suppressed a gigantic insurrection, and gave to the world an example of patriotism and physical power unparalleled and unsurpassed. Flushed with success, exulting over their triumph, they return to their homes expecting to receive the earnest plaudits of a grateful people; but, alas for all human hopes, they were destined to disappointment. They were met at the very threshold with a new enemy—the eternal, everlasting, inevitable “nigger.” It was “nigger” in the field, “nigger” in the fence, “nigger” on the brain, and “nigger” in the atmosphere. For whose benefit, let me ask, was this apparent homage paid? For the negro? Oh! no. He was simply an instrument in the hands of those who expected to profit by the experiment. ... Mr. Speaker, this pretended love for the negro is all sheer hypocrisy. Yet it has been to a certain extent a success. To meet the end in view, the radicals profess an ardent admiration for this inferior race, while in reality they have another object in view. The feeling they exhibit is simulated; it is not love, but hate, deep, persecuting hatred, of the white man of the South.

25 Joint Committee, John Bingham, Proposed Amendment Granting Congress Power to Enforce the Rights of Citizens and All Persons January 27, 1866*

The Committee met pursuant to the call of its Chairman; absent Messrs. Blow and Rogers. Mr. Bingham from the sub-­committee on the powers of Congress, reported back the proposed amendment 66

* Journal of the Joint Committee, 56–58.

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of the Constitution, referred to them, in the following 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 of the United States in any State the same immunities and also equal political rights and privileges.” The Chairman moved to strike out the word “also” in the last clause. The motion was agreed to. Mr. Johnson moved to amend the last clause by striking out the word “any” and inserting the word “every” before the word “state.” The motion was agreed to. Mr. Johnson moved to strike out the word “all” before the word “laws.” The motion was agreed to. Mr. Johnson moved to strike out the last clause of the proposed amendment. The question was taken by yeas and nays, and it was decided in the negative, yeas 4, nays 6, absent and not voting 5, as follows: Yeas—Messrs. Harris, Johnson, Grider and Conk­ling. —4. Nays—the Chairman, Messrs. Williams, Stevens, Mor­rill, Bingham and Boutwell.—6. Absent and not voting—Messrs. Grimes, Howard, Washburne, Blow and Rogers.—5. So the amendment was not agreed to. Mr. Stevens moved that the Chairman be instructed to report the joint resolution as amended to the Senate, and recommend its adoption by Congress. The question was taken by yeas and nays, and it was decided in the negative, yeas 5, nays 5, absent and not voting 5, as follows: Yeas—The Chairman, Messrs. Williams, Stevens, Mor­rill and Bingham—5. Nays—Messrs. Harris, Johnson, Grider, Conkling and Boutwell—5. Absent and not voting—Messrs. Grimes, Howard, Washburne, Blow and Rogers—5. So the motion was not agreed to.

26 US Senate, Debate, Civil Rights Bill, Proposed Addition of Citizenship Clause January 29, 1866*

The PRESIDENT pro tempore. The morning hour having expired, it becomes the duty of the chair to call up the unfinished business of Friday, which is the bill (S. No. 61) to protect all persons in the United States in their civil rights, and furnish the means of their vindication, which is now before the Senate as in Committee of the Whole. ... Mr. TRUMBULL. Before proceeding with the bill under consideration, I desire to offer an amendment, to insert after the word “that,” in the third line of the first section, the words “all persons of African descent born in the United States are hereby declared to be citizens of the United States and;” so the section will read: That all persons of African descent born in the United States are hereby declared to be citizens of the United States, and 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 condition of slavery, &c.

Mr. President, I regard the bill to which the attention of the Senate is now called as the most important measure that has been under its consideration since the adoption of the constitutional amendment abolishing slavery. That amendment declared that all persons in the United States should be free. This measure is intended to give effect to that declaration and secure to all persons within the United States practical freedom. There is very little importance in the general declaration of abstract truths and principles unless they can be carried into effect, unless the persons who are to be affected by them have some means of availing themselves of their benefits. Of what avail was the immortal declaration “that all men are created equal; that they are en67

* Cong. Globe, 39th Cong., 1st Sess., 474–76 (Jan. 29, 1866).

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for the purpose of maintaining and supporting it. Since the abolition of slavery, the Legislatures which have assembled in the insurrectionary States have passed laws relating to the freedmen, and in nearly all the States they have discriminated against them. They deny them certain rights, subject them to severe penalties, and still impose upon them the very restrictions which were imposed upon them in consequence of the existence of slavery, and before it was abolished. The purpose of the bill under consideration is to destroy all these discriminations, and to carry into effect the constitutional amendment. The first section of the bill, as it is now proposed to be amended, declares that all persons of African descent shall be citizens of the United States, and—

dowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness,” and “that to secure these rights Governments are instituted among men,” to the millions of the African race in this country who were ground down and degraded and subjected to a slavery more intolerable and cruel than the world ever before knew? Of what avail was it to the citizen of Massachusetts, who, a few years ago, went to South Carolina to enforce a constitutional right in court, that the Constitution of the United States declared that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States? And of what avail will it now be that the Constitution of the United States has declared that slavery shall not exist, if in the late slaveholding States laws are to be enacted and enforced depriving persons of African descent of privileges which are essential to freemen? It is the intention of this bill to secure those rights. The laws in the slaveholding States have made a distinction against persons of African descent on account of their color, whether free or slave. I have before me the statutes of Mississippi. They provide that if any colored person, any free negro or mulatto, shall come into that State for the purpose of residing there, he shall be sold into slavery for life. If any person of African descent residing in that State travels from one county to another without having a pass or a certificate of his freedom, he is liable to be committed to jail and to be dealt with as a person who is in the State without authority. Other provisions of the statute prohibit any negro or mulatto from having fire-­arms; and one provision of the statute declares that for “exercising the functions of a minister of the Gospel free negroes and mulattoes, on conviction, may be punished by any number of lashes not exceeding thirty-­nine on the bare back, and shall pay the costs.” Other provisions of the statute of Mississippi prohibit a free negro or mulatto from keeping a house of entertainment, and subject him to trial before two justices of the peace and five slaveholders for violating the provisions of this law. The statutes of South Carolina make it a highly penal offense for any person, white or colored, to teach slaves; and similar provisions are to be found running through all the statutes of the late slaveholding States. When the constitutional amendment was adopted and slavery abolished, all these statutes became null and void, because they were all passed in aid of slavery,

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 condition 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 equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.

This section is the basis of the whole bill. The other provisions of the bill contain the necessary machinery to give effect to what are declared to be the rights of all persons in the first section, and the question will arise, has Congress authority to pass such a bill? Has Congress authority to give practical effect to the great declaration that slavery shall not exist in the United States? If it has not, then nothing has been accomplished by the adoption of the constitutional amendment. In my judgment, Congress has this authority. It is difficult, perhaps, to define accurately what slavery is and what liberty is. Liberty and slavery are opposite terms; one is opposed to the other. We know that in a civil government, in organized society, no such thing can exist as natural or absolute liberty. Natural liberty is defined to be the— 68

A. Drafting, doc. 26

“Power of acting as one thinks fit, without any restraint or control, unless by the law of nature, being a right inherent in us by birth, and one of the gifts of God to man in his creation, when he imbued him with the faculty of will.”

There have been several decisions of courts upon this clause of the Constitution. It was decided by the general court of the State of Maryland (Chase and Duval, justices) that this section meant that the citizens of all the States should have the peculiar advantage of acquiring and holding real as well as personal property, and that such property should be protected and secured by the laws of the State in the same manner as the property of the citizens of the State is protected. It meant that such property shall not be liable to any tax or burdens which the property of the citizen is not subject to. It may also mean that, as creditors, they shall be on the same footing with the State creditor in the payment of the debts of a deceased debtor. It secures and protects personal rights. (Campbell vs. Morris, 3 Harris and McHenry, 535.) This clause of the Constitution, according to the decision of the Indiana court made in 1797, “secures and protects personal rights” and gives to every person who is a citizen of one State the same rights to hold property, the same personal rights, that the citizen of that State has. A decision by the supreme court of Massachusetts upon this clause of the Constitution declares that—

But every man who enters society gives up a part of this natural liberty, which is the liberty of the savage, the liberty which the wild beast has, for the advantages he obtains in the protection which civil government gives him. Civil liberty, or the liberty which a person enjoys in society, is thus defined by Blackstone: “Civil liberty is no other than natural liberty, so far restrained by human laws and no further, as is necessary and expedient for the general advantage of the public.”

That is the liberty to which every citizen is entitled; that is the liberty which was intended to be secured by the Declaration of Independence and the Constitution of the United States originally, and more especially by the amendment which has recently been adopted; and in a note to Blackstone’ s Commentaries it is stated that— “In this definition of civil liberty it ought to be understood, or rather expressed, that the restraints introduced by the law should be equal to all, or as much so as the nature of things will admit.”

“The privileges and immunities secured to the people of each State in every other State can be applied only in case of removal from one State into another. By such removal they become citizens of the adopted State without naturalization, and have a right to sue and be sued as citizens; and yet this privilege is qualified and not absolute, for they cannot enjoy the right of suffrage or of eligibility to office, without such term of residence as shall be prescribed by the constitution and laws of the State into which they shall remove. They shall have the privileges and immunities of citizens; that is, they shall not be deemed aliens, but may take and hold real estate; and may, according to the laws of such State, eventually enjoy the full rights of citizenship without the necessity of being naturalized.” —6 Pickering, 92, Abbott vs. Bayley.

Then, sir, I take it that any statute which is not equal to all, and which deprives any citizen of civil rights which are secured to other citizens, is an unjust encroachment upon his liberty; and is, in fact, a badge of servitude which, by the Constitution, is prohibited. We may, perhaps, arrive at a more correct definition of the term “citizen of the United States” by referring to that clause of the Constitution which I have already quoted, and which declares that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” What rights are secured to the citizens of each State under that provision? Such fundamental rights as belong to every free person. Story, in his Commentaries, in commenting upon this clause of the Constitution of the United States, says:

But, sir, the decision most elaborate upon this clause of the Constitution is to be found in Washington’s Circuit Court Reports, in a case which was reserved for consideration after argument. I will read several sentences from the opinion of the circuit judge, because it will be seen that he enumerates the very rights belong-

“The intention of this clause was to confer on citizens, if one may so say, a general citizenship, and to communicate all the privileges and immunities which the citizens of the same State would be entitled to under the like circumstances.”

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ing to a citizen of the United States which are set forth in the first section of this bill. He says: “The next question is, whether this act infringes that section of the Constitution which declares that ‘the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States?’ “The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong of right to the citizens of all free Governments; and which have at all times been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended 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, or 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 the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added the elective franchise, as regulated and established by the laws or consti­ tution of the State in which it is to be exercised.” —Corfield vs. Coryell, 4 Washington’s Circuit Court Reports, page 380.

This judge goes further than the bill under consideration, and he lays it down as his opinion that under this clause of the Constitution, securing to the citizen of each State all the privileges and immunities of citizens of the several States of the United States, a person who is a citizen in one State and goes to another is even

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entitled to the elective franchise; but at all events he is entitled to the great fundamental rights of life, liberty, and the pursuit of happiness, and the right to travel, to go where he pleases. This is a right which belongs to the citizen of each State. Now, sir, if that be so, this being the construction as settled by judicial decisions to be put upon the clause of the Constitution to which I have adverted, how much more are the native-­born citizens of the State itself entitled to these rights! In my judgment, persons of African descent, born in the United States, are as much citizens as white persons who are born in the country. I know that in the slaveholding States a different opinion has obtained. The people of those States have not regarded the colored race as citizens, and on that principle many of their laws making discriminations between the whites and the colored people are based; but it is competent for Congress to declare, under the Constitution of the United States, who are citizens. If there were any question about it, it would be settled by the passage of a law declaring all persons born in the United States to be citizens thereof. That this bill proposes to do. Then they will be entitled to the rights of citizens. And what are they? The great fundamental rights set forth in this bill: the right to acquire property, the right to go and come at pleasure, the right to enforce rights in the courts, to make contracts, and to inherit and dispose of property. These are the very rights that are set forth in this bill as appertaining to every freeman. Mr. VAN WINKLE. If the gentleman will permit me, before he passes from this subject I should like him to explain, if these Africans are not now citizens of the United States, where is the authority by law of Congress to make them citizens? Mr. TRUMBULL. The Constitution of the United States confers upon Congress the right to provide uniform rules of naturalization. Mr. VAN WINKLE. For the admission of foreigners. Mr. TRUMBULL. Not necessarily of foreigners. Mr. VAN WINKLE. For the naturalization of foreigners, if I recollect the language. Mr. TRUMBULL. If the Senator from West Virginia will look into the statutes, he will find that it has happened in the history of the Government more than once that Congress by general act has naturalized a whole people. I think there was an act of that kind in reference to the Stockbridge Indians, an act of that character making citizens of the United States of the people of Texas and the people of Florida I think. There have been

A. Drafting, doc. 26

several general laws of that character; and the authority under the Constitution of the United States to declare who shall be citizens of the United States is, as I understand, vested in Congress and nowhere else. My friend from Massachusetts [Mr. Sumner] has handed me the constitutional clause on this subject, which declares that Congress shall have power “to establish a uniform rule of naturalization.” Nothing is said about foreigners. Mr. VAN WINKLE. I perceived my mistake before the gentleman read the clause. Mr. TRUMBULL. So, sir, I take it that it is competent for Congress to declare these persons to be citizens. They being now free and citizens of the United States, as citizens they are entitled, as I have undertaken to show, to the great fundamental rights belonging to free citizens, and we have a right to protect them in the enjoyment of them. Now, sir, referring again to that other clause of the Constitution upon which there have been judicial constructions, is it not manifest that it was competent for the Congress of the United States to have passed a law that would have protected Mr. Hoar, who went from Massachusetts to South Carolina for the purpose of testing a question in the courts? Would it not have been competent, under these decisions, for Congress to have passed a law punishing any person who should have undertaken to deprive him of this right, and to have vested the proper authorities with power if necessary to call upon the Army and Navy of the United States to protect him in this right? I apprehend it would. Then, under the constitutional amendment which we have now adopted, and which declares that slavery shall no longer exist, and which authorizes Congress by appropriate legislation to carry this provision into effect, I hold that we have a right to pass any law which, in our judgment, is deemed appropriate, and which will accomplish the end in view, secure freedom to all people in the United States. The various State laws to which I have referred—and there are many others—although they do not make a man an absolute slave, yet deprive him of the rights of a freeman; and it is perhaps difficult to draw the precise line, to say where freedom ceases and slavery begins, but a law that does not allow a colored person to go from one county to another is certainly a law in derogation of the rights of a freeman. A law that does not allow a colored person to hold property, does not allow him to teach, does not allow him to preach, is certainly a law in violation of the rights of a freeman, and being so may properly be declared void.

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Without going elaborately into this question, as my design was to state rather than argue the grounds upon which I place this bill, I will only add on this branch of the subject that the clause of the Constitution under which we are called to act in my judgment vests Congress with the discretion of selecting that “appropriate legislation” which it is believed will best accomplish the end and prevent slavery. ... Mr. McDOUGALL. I beg leave to ask the Senator how he interprets the term “civil rights” in the bill. Mr. TRUMBULL. The first section of the bill defines what I understand to be civil rights: the right to make and enforce contracts, to sue and be sued, and to give evidence, to inherit, purchase, sell, lease, hold, and convey real and personal property, and to full and equal benefit to all laws and proceedings for the security of person and property. These I understand to be civil rights, fundamental rights belonging to every man as a free man, and which under the Constitution as it now exists we have a right to protect every man in. Mr. McDOUGALL. Allow me to remark that I think all those rights should be conceded. Do I understand that this bill does not go further than to give protection to the enjoyment of life and liberty and the pursuit of happiness and the protection of the courts, and to have justice administered to all? Do I understand that it is not designed to involve the question of political rights? Mr. TRUMBULL. This bill has nothing to do with the political rights or status of parties. It is confined exclusively to their civil rights, such rights as should appertain to every free man. Having stated this much in regard to the object of the bill and its main features, I submit it to the Senate, and shall not further occupy its attention at the present time, and perhaps not at all unless it should be to reply to suggestions which may be made by others. Mr. SAULSBURY. Mr. President, I regard this bill as one of the most dangerous that was ever introduced into the Senate of the United States, or to which the attention of the American people was ever invited. During the last four or five years I have sat in this Chamber and witnessed the introduction of bills into this body which I thought obnoxious to many very grave and serious constitutional objections; but I have never since I have been a member of the body seen a bill so fraught with danger, so full of mischief, as the bill now under consideration. Deeming it to be of this character, duty to my country, duty to my State, duty to myself as a man,

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as a citizen, and as a legislator, duty to my children, and duty to my fellow-­citizens everywhere, demands that I should utter my protest against its enactment into a law. Before, however, I proceed to consider it in the light of the Constitution as it existed previous to the recent amendment, let me notice the basis of authority for it as claimed by the honorable Senator from Illinois. I presume that honorable Senator would not contend that, independently of the constitutional amendment, Congress had a right to enact this law, although I know that many have claimed powers equally extensive. But from the argument of the honorable Senator, I infer that the sole basis of authority in his judgment for passing the bill is the amendment to the Constitution of the United States abolishing slavery. If that be so, it is admitted that before the adoption of that amendment Congress had not the right to enact such a law as this. Let us consider then for one moment whether the adoption of that amendment gave to Congress such an authority. What was that amendment? That neither slavery nor involuntary servitude should exist in the United States, except as a punishment for crime whereof the party should have been duly convicted. Now, here is a complete answer, in my judgment, to the argument of the honorable Senator, based upon the authority conferred by that amendment. Before and at the time of the adoption of that amendment the people of the United States were composed of persons of different races, the two main portions of which were white and black; the whites were free; a portion of the black population were free and a portion were slaves. In the State of Maryland about one half of the black population were free and one half slaves. In my own State there were about ten free negroes to one slave. In Kentucky and in most of the slaveholding States there were large free negro populations, as we supposed. I should like to know whether persons belonging to the African race in the State of Maryland, and the State of Delaware, and the other slaveholding States, who had been emancipated by their owners either by deed or will, or who were never in bondage, were, at the time of the adoption of the constitutional amendment, free or slave. Were they not freemen? What was the objection urged by many against the enactment of the fugitive slave law? It was that under that enactment a freedman—a free colored man, as they called him, a free negro, as I uniformly call him—might be kidnapped, carried far from his home, and reduced to slavery. Had the Congress of the United States, previous to the adop-

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tion of the amendment, the power to pass this law, to say that the free negroes in the States of Maryland and Delaware, and the other slaveholding States, or the free negroes all over the United States, should be the equals of the white man before the law, and possess the powers which this bill proposes to confer? Had you the power, before the enactment of the constitutional amendment, to pass such a law? If you had not, did the passage of that amendment, setting free that portion who were in slavery, and putting them on an equality in reference to their status with the free negroes that then existed in the United States, give you the power to legislate beyond the persons you set free and in reference to the whole negro race in the United States, a portion of which were free before? Is the amendment to the Constitution so potential that if there was but one slave negro in the United States you could, under and by virtue of the clause which says you may carry the amendment into effect by appropriate legislation, bestow all the rights which this bill proposes to bestow upon the whole free negro population of the United States? Sir, it needs but a statement of the facts to show that under the constitutional amendment you have no such power. If you have the power under it, you had the power before the amendment to do the same thing in reference to that portion of the negro population who were not in a state of slavery but who were free. Mr. President, I will not say that such an exercise of power as is now proposed was not contemplated by those who voted for the amendment to the Constitution; but certainly they did not avow it upon the floor of this Chamber. It does not of itself declare, and human ingenuity cannot torture it into meaning that the Congress of the United States shall invade the States and attempt to regulate property and personal rights within the States any further than refers simply and solely to the condition and status of slavery. I admit that if instead of declaring that hereafter neither slavery nor involuntary servitude shall exist in the United States except as a punishment for crime whereof the party shall have been duly convicted, it had declared that hereafter 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 condition 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 en-

A. Drafting, doc. 27

force contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property—if instead of being the amendment which you passed it had been that, and if then it had said that by appropriate legislation you might carry such an amendment into effect, you would have the power to pass appropriate acts to carry it into effect, because your acts would have had reference and relevancy to the subject-­matter of the amendment. Your acts then would have been constitutional, because there would have been a logical and legal connection between your amendment as it would in that case have existed and your proposed acts to carry it into effect. But Congress has passed no such constitutional amendment as that. The States have simply said by adopting that amendment that the status or condition of slavery in this country shall not longer exist—the condition in which one man belongs to another, which gives to that other a right to appropriate the profits of his labor to his own use and to control his person. That is what it said; and it is said in reference to that, that you may by appropriate legislation exercise power: and it has not said that you may exercise power in reference to anything else. The attempt now under the power given, which relates simply and solely to one subject-­matter, the abolition of the status or condition of slavery, to confer civil rights which are wholly distinct and unconnected with the status or condition of slavery, is an attempt unwarranted by any method or process of sound reasoning.

The yeas and nays were ordered. Mr. COWAN. I should like to have the amendment read. The Secretary read the amendment, which was in section one, line three, after the word “that” to insert “all persons of African descent born in the United States are hereby declared to be citizens of the United States, and;” so that it will read: Be it enacted, &c., That all persons of African descent born in the United States are hereby declared to be citizens of the United States, and 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 condition of slavery, &c.

27 US Senate, Debate, Civil Rights Bill, Amended Citizenship Clause January 30, 1866*

The Senate, as in Committee of the Whole, resumed the consideration of the bill (S. No. 61) to protect all persons in the United States in their civil rights, and furnish the means of their vindication; the pending question being on the amendment of Mr. Trumbull to the first section of the bill. Mr. SAULSBURY. I ask for the yeas and nays on that amendment. * Cong. Globe, 39th Cong., 1st Sess., 497–506 (Jan. 30, 1866).

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Mr. VAN WINKLE. ... I think it needs a constitutional amendment to make these people citizens of the United States. I am not satisfied with the reasons given by the Senator from Illinois yesterday for doing it under the clause of the Constitution authorizing Congress to pass uniform laws of naturalization. I think it is one of the gravest subjects that ever could be submitted to the people of the United States, and it involves not only the negro race, but other inferior races that are now settling on our Pacific coast, and perhaps involves a future immigration to this country of which we have no conception, for a bill has been introduced at the other end of the Capitol to strike out the word “white” from the naturalization laws, so that we may expect to have an influx here of all sorts of people from all countries. I need not pause to say that this would be detrimental to the best interests of our country. I am willing to receive among us, and always have been, those from other countries who are calculated to make good citizens. I am not and never have been willing to receive, if the discrimination could be made, those whose mixture with our race, whether they are white or black, could only tend to the deterioration of the mass; and I avow myself now as opposed to the amendment which is now before the Senate for the reasons that I have already stated. ... The PRESIDING OFFICER, (Mr. Pomeroy in the chair.) The question is on the amendment proposed by the Senator from Illinois. Mr. TRUMBULL. No action having been taken upon that amendment, I desire to withdraw it and to offer

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another in lieu of it to the same purport, changing the phraseology. In the third line of the first section, after the word “that,” I move to insert these words: All persons born in the United States, and not subject to any foreign Power, are hereby declared to be citizens of the United States, without distinction of color and. So that the section will read:

Be it enacted, &c., That all persons born in the United States, and not subject to any foreign Power, are hereby declared to be citizens of the United States, without distinction of color, and 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 condition of slavery, &c.

Mr. GUTHRIE. I will ask the Senator if he intends by that amendment to naturalize all the Indians of the United States? Mr. HOWARD. That is the very question I was about to put. Mr. TRUMBULL. Our dealings with the Indians are with them as foreigners, as separate nations. We deal with them by treaty, and not by law, except in reference to those who are incorporated into the United States as some are, and are taxable and become citizens, and then it would be desirable that it should apply to the Indians so far as those who are domesticated and pay taxes and live in civilized society are concerned. In reference to the other tribes, they will not be embraced by this provision because we have always treated the Indian tribes as nations with whom we made treaties. The intention is not to embrace them. If the Senator from Kentucky thinks the language would embrace them, I should have no objection to changing it so as to exclude the Indians. It is not intended to include them. Mr. GUTHRIE. The right of citizenship is a great boon, and may well be supposed to be given to the Indians if you use language strong enough to give it to them; and as they are mere dependents upon the Government, living in the United States, I think they would be made citizens under such a provision as this. Mr. COWAN. I will ask whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country? Mr. TRUMBULL. Undoubtedly. Mr. COWAN. Then I think it would be proper to hear

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the Senators from California on that question, because that population is now becoming very heavy upon the Pacific coast; and when we consider that it is in proximity to an empire containing four hundred million people, very much given to emigrating, very rapacious in their character, and very astute in their dealings, if they are to be made citizens and to enjoy political power in California, then, sir, the day may not be very far distant when California, instead of belonging to the Indo-­ European race, may belong to the Mongolian, may belong to the Chinese; because it certainly would not be difficult for that empire, with her resources, and with the means she has, to throw a population upon California and the mining districts of that country that would overwhelm our race and wrest from them the dominion of that country. Mr. TRUMBULL. I should like to inquire of my friend from Pennsylvania, if the children of Chinese now born in this country are not citizens? Mr. COWAN. I think not. Mr. TRUMBULL. I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. That is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens. Mr. COWAN. The honorable Senator assumes that which is not the fact. The children of German parents are citizens; but Germans are not Chinese; Germans are not Australians, nor Hottentots, nor anything of the kind. That is the fallacy of his argument. Mr. TRUMBULL. If the Senator from Pennsylvania will show me in the law any distinction made between the children of German parents and the children of Asiatic parents, I might be able to appreciate the point which he makes; but the law makes no such distinction; and the child of an Asiatic is just as much a citizen as the child of a European. Mr. LANE, of Kansas. I desire to call the attention of the chairman of the Committee on the Judiciary to this state of facts: most of the Indians of our State have taken an allotment of lands, and our supreme court have decided that by the act of accepting the allotments, they have separated themselves from their tribal relations; and I suppose the chairman does not intend to make the Indians of Kansas citizens of the United States. Mr. TRUMBULL, They are already citizens of the

A. Drafting, doc. 27

United States if they are separated from their tribes and incorporated in your community. Mr. LANE, of Kansas. But they are not. We do not intend to extend to them the right of citizenship, but our supreme court have decided that their lands are taxable and that they are separated from their tribes. Mr. HENDERSON. I should like to ask the Senator from Kansas if he did not state within the last year or two on the floor of the Senate, that the very best specimens of manhood he had ever seen were a cross between the negro and Indian of his State? Mr. LANE, of Kansas. I said south of Kansas, and I reiterate it now, and I hope the Territorial Committee will introduce a bill having for its object the protection of that magnificent race. Mr. COWAN. Mr. President, I am asked, with quite an air of certainty on the part of the chairman of the Judiciary Committee, whether the children of persons of barbarian races, born in this country, are not from that very fact citizens of this country. I am not prepared upon the moment to furnish authorities upon this point; but I am certainly very clear that in Pennsylvania that is not the law, and never has been the law; and to assert that it is the law, in my judgment, is to betray an utter want of comprehension, an utter inappreciation of the fundamental principles which underlie the whole of our system. Who was it that established this Government? They were people who brought here the charter of their liberties with them; they were the freemen who emigrated to this country and established these governments, and they established them under charters legally granted them by the Crown of Great Britain originally. By the terms of the charters they were the actual possessors of the political power of the colonies, and they alone had the right to say whom they would admit to a coenjoyment of that power with them. It is true that the colonists of this country, when they came here and established their governments, did open the door of these privileges wide to men of their own race from Europe. They opened it to the Irishman, they opened it to the German, they opened it to the Scandinavian races of the North. But where did they open it to the barbarian races of Asia or of Africa? Nowhere. There may be no positive prohibition; but the courts always administered the law upon the basis that it was only the freemen who established this Government and those whom the freemen admitted with them to an enjoyment of political power that were entitled to it. The identical question came up in my State—the

question whether the negro was a citizen, and whether he possessed political power in that State—and it was there decided that he was not one of the original corporators, that he was not one of the freemen who originally possessed political power, and that they had never, by any enactment or by any act of theirs, admitted him into a participation of that power, except so far as to tax him for the support of government. And, Mr. President, I think it a most important question, and particularly a most important question for the Pacific coast, and those States which lie upon it, as to whether this door shall now be thrown open to the Asiatic population. If it be, there is an end to republican government there, because it is very well ascertained that those people have no appreciation of that form of government; it seems to be obnoxious to their very nature; they seem to be incapable either of understanding it or of carrying it out; and I cannot consent to say that California, or Oregon, or Colorado, or Nevada, or any of those States shall be given over to an irruption of Chinese. I, for my part, protest against it. I may say, while I am up, that I am entirely opposed to the whole of this first section; and, in my judgment, it has not a particle of constitutional warrant. As I understand the chairman of the Committee on the Judiciary, he takes his ground upon an amendment to the Constitution of the United States recently passed. The first section of that amendment is in these words: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.”

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Now, Mr. President and gentlemen of the Senate, in all good faith, what was the meaning of that? What was its intent? Can there be any doubt of it? Is there a sane man within the sound of my voice who does not know precisely what was intended by the American people in adopting that amendment to the Constitution? I may say there is no shirking this thing; there is no way of dodging it or avoiding it. We must meet; it and if we are men we will meet it, and we will meet it in the spirit in which it was made. That amendment, every-­body knows and nobody dare deny, was simply made to liberate the negro slave from his master. That is all there is of it. Will the chairman of the Committee on the Judiciary or any-­body else undertake to say that that was to prevent the involuntary servitude of my child to me, of

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my apprentice to me, or the quasi servitude which the wife to some extent owes to her husband? Certainly not. Nobody pretends that it was to be wider in its operation than to cover the relation which existed between the master and his negro African slave. Now, mark it, that particular relation and the breaking of it up, is the subject of that first clause of the amendment, and it does not extend any further, and cannot by any possible implication, contortion, or straining, be made to go further among honest men. That was followed by another clause, and a very proper clause, which everybody at the time understood, and which I have never known anybody to be mistaken about until I came into the Senate of the United States this session. That other clause was this: “Congress shall have power to enforce this article by appropriate legislation.”

Enforce what? The breaking of the bond by which the negro slave was held to his master; that is all. It was not intended to overturn this Government and to revolutionize all the laws of the various States everywhere. It was intended, in other words, and a lawyer would have so construed it, to give to the negro the privilege of the habeas corpus; that is, if anybody persisted in the face of the constitutional amendment in holding him as a slave, that he should have an appropriate remedy to be delivered. That is all. ... Mr. HOWARD. . . . I did not rise intending to go into the general subject, but rose more particularly to say a word in reference to the amendment of the Constitution abolishing slavery, and to the true interpretation to be given to it. I happened to be a member of the Judiciary Committee at the time this amendment was drafted and adopted and reported to the Senate. I recollect very distinctly what were the views entertained by members of that committee at the time it was under consideration before them. And notwithstanding the very vehement style of the Senator from Pennsylvania,* in placing a narrow and utterly ineffectual construction upon it, I take this occasion to say that it was in contemplation of its friends and advocates to give to Congress precisely the power over the subject of slavery and the freedmen which is proposed to be exercised by the bill now under our consideration. It was easy to foresee, and of course we foresaw, that * [That is, Mr. Cowan. —Ed.]

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in case this scheme of emancipation was carried out in the rebel States it would encounter the most vehement resistance on the part of the old slaveholders. It was easy to look far enough into the future to perceive that it would be a very unwelcome measure to them, and that they would resort to every means in their power to prevent what they called the loss of their property under this amendment. We could foresee easily enough that they would use, if they should be permitted to do so by the General Government, all the powers of the State governments in restraining and circumscribing the rights and privileges which are plainly given by it to the emancipated negro. If I understand correctly the interpretation given to the article by the Senator from Delaware and the Senator from Pennsylvania, it is this: that the sole effect of it is to cut and sever the mere legal ligament by which the person and the service of the slave was attached to his master, and that beyond this particular office the amendment does not go; that it can have no effect whatever upon the condition of the emancipated black in any other respect. In other words, they hold that it relieves him from his so-­called legal obligation to render his personal service to his master without compensation; and there leaves him, totally, irretrievably, and without any power on the part of Congress to look after his well-­being from the moment of this mockery of emancipation. Sir, such was not the intention of the friends of this amendment at the time of its initiation here and at the time of its adoption; and I undertake to say that it is not the construction which is given to it by the bar throughout the country, and much less by the liberty-­loving people. ... No, sir, such was not the intention of the advocates of this amendment. Its intention was to make him the opposite of a slave, to make him a freeman. And what are the attributes of a freeman according to the universal understanding of the American people? Is a freeman to be deprived of the right of acquiring property, of the right of having a family, a wife, children, home? What definition will you attach to the word “freeman” that does not include these ideas? The once slave is no longer a slave; he has become, by means of emancipation, a free man. If such be the case, then in all common sense is he not entitled to those rights which we concede to a man who is free? Mr. President, I do not understand the bill which is now before us to contemplate anything else but this, that in respect to all civil rights—and those are some

A. Drafting, doc. 27

of the civil rights which I have just enumerated—there is to be hereafter no distinction between the white race and the black race. It is to secure to these men whom we have made free the ordinary rights of a freeman and nothing else. Its first section declares that: 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 equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

There is no invasion of the legitimate rights of the States. It contemplates nothing of the kind; but it simply gives to persons who are of different races or colors the same civil rights. That is its full extent; it goes no further; and I sincerely trust that this nation, having by an expenditure of blood and treasure unexampled in the history of the human race, having by their chief Executive declared the slaves in the United States forever emancipated and free, and in doing this great act appealed to the favor and approval of a just God; having employed this class of persons to the number of nearly two hundred thousand in the prosecution of our just and righteous war, will not now be found so recreant to duty, so wanting in simple justice, as to turn our backs upon the race and say to them, “We set you free, but beyond this we give you no protection; we allow you again to be reduced to slavery by your old masters, because it is the right of the State which has enslaved you for two hundred years thus to do.” Sir, let me tell you and the Senators who have advocated the opposite side of this question that if we fail in this high duty, if we fail to redeem this solemn pledge which we have given to the slave, to the world, and in the presence of Almighty God, the time is not far distant when we shall reap the fruits of our treachery and imbecility in woes which we have not yet witnessed, in terrors of which even the civil war that has just passed has furnished no example. The PRESIDENT pro tempore. The question is on the amendment moved by the Senator from Illinois. Mr. L ANE, of Kansas. I propose an amendment

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to the amendment, which has been submitted to the chairman of the committee and has been agreed to by him. It is after the word “Power,” in the third line of the amendment, to insert “or tribal authority;” so as to read, “All persons born in the United States, and not subject to any foreign Power or tribal authority, are hereby declared to be citizens of the United States,” &c. Mr. TRUMBULL. I have no objection to that amendment. It will make the amendment I offered more specific. I think it would mean that without it, but still I have no objection to it. Mr. JOHNSON. Mr. President, if this bill is to pass into a law, it is of course advisable—and I am sure no one will admit that with more readiness than the honorable member of the committee who reported it—that it should be as free from objections as it can be made. What I am about to suggest is not, therefore, for the purpose of defeating the bill, though I shall not be able to vote for it with the opinion I entertain on the question of power, but for the purpose of improving the bill, or at least relieving it from objections to which it seems to me to be now subject. The particular question before the Senate is the amendment suggested by the honorable chairman of the Judiciary Committee, as now amended by the honorable member from Kansas. By that amendment he proposes to define citizenship. Nobody is more willing to admit that it is very desirable that such a definition should be given. Since the decision in the case of Dred Scott, as the Senate are aware, a person of African descent, whether born free or not, whether free by birth or free by after events, is not, within the meaning of the Constitution of the United States, a citizen. Whatever objections may be made to that decision, with reference to the great question which was decided and the question which agitated the country far and wide, cannot be made to that part of the decision which relates to the particular point which I have just stated. The objection to the decision upon the great question was that that was not before the court for adjudication. The suit was instituted in a State court of Missouri, and afterward went into the circuit court of the United States, and was brought, by writ of error, from the decision of the circuit court to the Supreme Court of the United States. There were two questions. The first was whether Scott was a citizen of the United States within the meaning of the third article of the Constitution, which creates and defines the extent of the judicial power. The act of 1789 could not go further, perhaps, than the Constitu-

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tion provided. The Senate will remember that by that third article the judicial power of the United States was made to extend to, among other cases, controversies existing between citizens of different States. It was very clear, therefore, that no one could be considered as embraced by that power except a person who should be a citizen of the United States. The point was made in the court below, and upon the writ of error to the Supreme Court six judges out of eight, I think, decided that Scott was not a citizen; and not being a citizen, that the court below had no jurisdiction to try the cause. The Supreme Court, however, went on afterward, for reasons satisfactory to the majority, to decide the questions which arose upon the merits, as they must have decided them if they had sustained the point of jurisdiction. As far as the decision upon the merits was concerned, it was held to be obnoxious to very serious objection, and perhaps a large majority of the people of the United States, including a great many of the members of the profession throughout the United States, were of opinion that when the court came to the conclusion that they had no jurisdiction because of the incapacity of the party to sue, all that they should have done was to affirm the judgment of the court below upon the ground of want of jurisdiction. But as the Senate will see, the very point whether an African, free or not free born, free or becoming free afterward by State manumission or by manumission given him by his owner, was a citizen of the United States, was before that court and was adjudicated. Now, without saying where the question has presented itself to my mind, it is sufficient for my purpose to say that I have been exceedingly anxious individually that there should be some definition which will rid this class of our people from that objection. If the Supreme Court decision is a binding one and will be followed in the future, this law which we are now about to pass will be held of course to be of no avail, as far as it professes to define what citizenship is, because it gives the rights of citizenship to all persons without distinction of color, and of course embraces Africans or descendants of Africans. My own opinion, therefore, is that the object can only be safely and surely attained by an amendment of the Constitution, and I have tried in vain to form such a provision as would be free from objection. Whether I or those who may be associated with me in the future will be able to adopt a definition free from all objec-

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tion is perhaps doubtful; but at any rate the effort can be made, and will be made in good faith; but I am very much afraid that, so far from settling the question by this legislation, we shall find that if the legislation is adopted the matter will be just as open to controversy as it was before. ... What is to be its application? There is not a State in which these negroes are to be found where slavery existed until recently, and I am not sure that there is not the same legislation in some of the States where slavery has long since been abolished, which does not make it criminal for a black man to marry a white woman, or for a white man to marry a black woman; and they do it not for the purpose of denying any right to the black man or to the white man, but for the purpose of preserving the harmony and peace of society. The demonstrations going on now in your free States show that a relation of that description cannot be entered into without producing some disorder. Do you not repeal all that legislation by this bill? I do not know that you intend to repeal it; but is it not clear that all such legislation will be repealed, and that consequently there may be a contract of marriage entered into as between persons of these different races, a white man with a black woman, or a black man with a white woman? If you are prepared to repeal it, do you think that the repeal will answer any practical purpose? Are you not, on the contrary, rather inclined to believe that, like the fugitive slave law of 1850, if enforced at all, and if these parties are to be protected at all, it must be enforced and the protection must be given by the bayonet? Is not that the effect of the law? Still confining myself to the first section, it says that these parties, without distinction of color, “shall have the same right to make and enforce contracts,” to make contracts of any and every description. Mr. FESSENDEN. Where is the discrimination against color in the law to which the Senator refers? Mr. JOHNSON. There is none; that is what I say; that is the very thing I am finding fault with. Mr. TRUMBULL. This bill would not repeal the law to which the Senator refers, if there is no discrimination made by it. Mr. JOHNSON. Would it not? We shall see directly. Standing upon this section, it will be admitted that the black man has the same right to enter into a contract of marriage with a white woman as a white man has, that is clear, because marriage is a contract. I was speaking of this without reference to any State legislation.

A. Drafting, doc. 28

Mr. FESSENDEN. He has the same right to make a contract of marriage with a white woman that a white man has with a black woman. Mr. JOHNSON. Just wait a moment. My friend from Maine is so quick that he cannot wait for the operation of slower minds. If there were no laws in Maryland on the subject, then the black man could marry a white woman, but there are laws. What is the effect of those laws? The first section of this bill says that there is to be no discrimination. The second section says that “any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject or cause to be subjected any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment,” shall be proceeded against under this bill. Now, there is a State law which says to the black man, “You shall not marry a white woman,” and says to the white man, “You may.” There is therefore in Maryland one law in relation to this question for the white man, and another law for the black man. The black man marries a white woman and we try to enforce our laws against him. We say to him, “You have done an illegal act, you have offended against the legislation of Maryland by marrying a white woman.” He says, “I have done no such thing; I would have done it but for the legislation of Congress; I would have been liable to trial and conviction but for the legislation of Congress; but I set up the legislation of Congress; you may tell me you are prosecuting me under a law of the State of Maryland which makes it a crime in me, but Congress says that that State legislation shall be of no avail; the law of Maryland in reference to the question is at an end.” It means that if it means anything. If the honorable member does not mean that he can change the language. I do not understand my friend from Maine or the honorable member from Illinois himself as denying that, looking to the provisions in the first section, supposing there was no law in Maryland on the subject—and I single out Maryland merely for the purpose of illustration— the contract of marriage would be embraced. White and black are considered together, put in a mass, and the one is entitled to enter into every contract that the other is entitled to enter into. Of course, therefore, the black man is entitled to enter into the contract of marriage with a white woman; but the law of Maryland prevents it; the law of Maryland punishes him for attempting it; and when the man is tried for having violated the law of Maryland, the court will say, “How is the prosecution to be supported under any law of Maryland—that law

which is inconsistent with the provisions of the first section of this law of Congress, and the second section of which provides, virtually, that he who prevents a black man from marrying a white woman under any law of Maryland is to be subject to the penalties imposed by it?” That is the way I understand it. I do not think I can be wrong.

28 US House, Proposed Apportionment Amendment Referred Back to Joint Committee January 30, 1866*

Mr. STEVENS demanded the regular order of business. The SPEAKER stated the regular order of business to be the consideration of the following joint resolution reported by the joint committee on reconstruction: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States; which, when ratified by three fourths of the said Legislatures, shall be valid as part of said Constitution, namely: Article —. 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: Provided, 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.

The pending question was on the motion of Mr. Le Blond to refer the joint resolution and pending amendments to the Committee of the Whole on the state of the Union. ... 79

* Cong. Globe, 39th Cong., 1st Sess., 508 (Jan. 30, 1866).

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The SPEAKER. The previous question was seconded last evening, and the question is now, Shall the main question be now ordered to be put? Mr. STEVENS. I hope the demand for the previous question will be withdrawn, and that by common consent the amendment be referred to the committee on reconstruction without instructions. The SPEAKER. The gentleman can get at that by moving to reconsider the vote by which the previous question was seconded. Mr. STEVENS. I make that motion. The motion was agreed to. Mr. GRISWOLD. I now withdraw the demand for the previous question. Mr. LE BLOND demanded the yeas and nays on his motion to refer to the Committee of the Whole on the state of the Union. Mr. CONKLING. Before the yeas and nays are ordered, I desire to say that I hope this subject will be referred to the committee on reconstruction without instructions. That seems to be the desire of the House, and the committee have no objection. I hope that at least the friends of the measure will vote in that way. The yeas and nays were ordered. The question was taken; and it was decided in the negative—yeas 37, nays 133, not voting 12; ... So the motion was disagreed to. Mr. BINGHAM moved to reconsider the vote by which the House refused to refer the subject to the Committee of the Whole on the state of the Union; and also moved that the motion to reconsider be laid upon the table. The latter motion was agreed to. The question then recurred on the motion to recommit the joint resolution to the committee on reconstruction without instructions. The motion was agreed to.

29 US House, Apportionment Amendment, Speech of Thaddeus Stevens, Vote and Passage January 31, 1866*

Mr. STEVENS. The joint committee on reconstruction, to which was recommitted joint resolution No. 51, proposing an amendment to the Constitution of the United States in relation to the basis of representation, together with all propositions submitted in this House in relation to that subject, have directed me to report the joint resolution back, modified to read as follows: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States; which, when ratified by three fourths of the said Legislatures, shall be valid as part of said Constitution, namely: Article —. 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: Provided, That whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation.

I now move the previous question. ... Mr. ELDRIDGE. I desire to inquire of the gentleman from Pennsylvania wherein the report which he now makes differs from the proposition which he formerly reported from the committee on reconstruction. Mr. STEVENS. The committee, in obedience to what they thought was a general feeling in this House, have struck out the words “and direct taxes,” so as to leave * Cong. Globe, 39th Cong., 1st Sess., 535–38 (Jan. 31, 1866).

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their jurisdiction to fix the qualification of their voters? Would New York? Would Pennsylvania? Would the northwestern States? I am sure not one of them would. Therefore, if you should take away the right which now is and always has been exercised by the States, by fixing the qualification of their electors, instead of getting nineteen States, which is necessary to ratify this amendment, you might possibly get five. I venture to say you could not get five in this Union. And that is an answer, in the opinion of the committee, to all that has been said on this subject. But it grants no right. It says, however, to the State of South Carolina and other slave States, true, we leave where it has been left for eighty years the right to fix the elective franchise, but you must not abuse it; if you do, the Constitution will impose upon you a penalty, and will continue to inflict it until you shall have corrected your actions. Now, any man who knows anything about the condition of aspiration and ambition for power which exists in the slave States knows that one of their chief objects is to rule this country. It was to ruin it if they could not rule it. They have not been able to ruin it, and now their great ambition will be to rule it. If a State abuses the elective franchise and takes it from those who are the only loyal people there, the Constitution says to such a State, you shall lose power in the halls of the nation, and you shall remain where you are, a shriveled and dried up nonentity instead of being the lords of creation, as you have been, so far as America is concerned, for years past. Now, sir, I say no more strong inducement could ever be held out to them, no more severe punishment could ever be inflicted upon them as States. If they exclude the colored population they will lose at least thirty-­five Representatives in this Hall. If they adopt it they will have eighty-­three votes. Take it away from them and they will have only from forty-­five to forty-­eight votes, all told, in this Hall; and then, sir, let them have all the copperhead assistance they can get, and liberty will still be triumphant. Now, I prefer that to an immediate declaration that all shall be represented; for if you make them all voters and let them into this Hall, not one beneficial act for the benefit of the freedmen or for the benefit of the country could ever be passed. Their eighty-­three votes, with the Representatives of the Five Points and other dark corners, would be sufficient to overrule the friends of progress here, and this nation would be in the hands of secessionists at the very next congressional election and at the very next presidential election. I

that subject for the future action of Congress, if it shall be deemed necessary, without embarrassing the present proposition with it. Mr. ELDRIDGE. The other proposition remains the same? Mr. STEVENS. Precisely the same. Mr. WRIGHT. In consideration of the gravity of this question, it being one which will affect the welfare of the nation, would there be any impropriety in having the report of the committee laid on the table for a short time, in order that it may be printed, so that members may know what they are called upon to decide? Mr. STEVENS. As we have already had a week’s debate upon this subject, and there is but a single change, striking out the words “and direct taxes,” I cannot see the propriety of detaining the House longer upon it. ... The main question was then ordered. ... Mr. STEVENS. ... Now, sir, let me consider what is the meaning of the proposition made by the committee; how far it ought to be affected by any modifications. It has been amended by the committee in obedience to what is supposed to be the sense of the House. The committee have reported back the simple proposition that representation shall be apportioned among the States in proportion to their numbers, provided that when the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation. But some of our friends are apprehensive that this is an implied permission to the States to regulate the elective franchise within the States. Now, sir, I venture to say that there is no good philologist who, upon reading this proposed amendment, will for a single moment pretend that it either grants a privilege or takes away a privilege from any State on that subject. It does, however, punish the abuse of that privilege if it exists. Now, I hold that the States have the right, and always have had it, to fix the elective franchise within their own States. And I hold that this does not take it from them. Ought it to take it from them? Ought the domestic affairs of the States to be infringed upon by Congress so far as to regulate the restrictions and qualifications of their voters? How many States would adopt such a proposition? How many would allow Congress to come within 81

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do not, therefore, want to grant them this privilege at least for some years. I want, in the mean time, that our Christian men shall go among the freedmen and teach them what their duties are as citizens; they know them now much better than their masters, and I hope their masters will take notice of what they learn. I say I want our Christian men to go among them, the philanthropists of the North, the honest Methodists, my friends, the Hardshell Baptists, and all others; and then, four or five years hence, when these freedmen shall have been made free indeed, when they shall have become intelligent enough, and there are sufficient loyal men there to control the representation from those States, I shall be glad to see them admitted here. But I do not want them to have representation—I say it plainly—I do not want them to have the right of suffrage before this Congress has done the great work of regenerating the Constitution and laws of this country according to the principles of the Declaration of Independence. ... I had another proposition, which I hope may again be brought forward. It is this:

which has called forth his remarks, so that we may understand to what he alludes when he speaks of the President undertaking to dictate to Congress. Mr. STEVENS. I have no objection to having it read, except that it will take more time than its importance warrants. Several Members. Let it be read. The Clerk read, as follows:

All national and State laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race or color.

There is the genuine proposition; that is the one I love; that is the one which I hope, before we separate, we shall have educated ourselves up to the idea of adopting, and that we shall have educated our people up to the point of ratifying. But it would not be wise to entangle the present proposition with that one. The one might drag down the other; and although I have not obtained what I want, I am content to take what, after comparing ideas with others, I believe we can carry through the States; and I believe we can carry this proposition. ... Nor do I propose to go into an examination of what was perhaps the not quite pertinent argument of the gentleman from New York, [Mr. Raymond.] All I want is that two thirds of each branch of this Congress shall vote affirmatively on this question. And while I should take pleasure in having the President approve of our conduct, yet he has nothing to say about it on this question. We do not send it to him and ask his opinion about it, and therefore it was all the more kind in him to send us his opinion without being asked for it. Mr. SMITH. I would ask the gentleman from Pennsylvania [Mr. Stevens] to permit to be read the paper

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“The following is the substance of a conversation which took place yesterday between the President and a distinguished Senator, as telegraphed North by the agent of the Associated Press: “The President said that he doubted the propriety at this time of making further amendments to the Constitution. One great amendment had already been made, by which slavery had forever been abolished within the limits of the United States, and a national guarantee thus given that the institution should never exist in the land. Propositions to amend the Constitution were becoming as numerous as preambles and resolutions at town meetings called to consider the most ordinary questions connected with the administration of local affairs. All this, in his opinion, had a tendency to diminish the dignity and prestige attached to the Constitution of the country, and to lessen the respect and confidence of the people in their great charter of freedom. If, however, amendments are to be made to the Constitution, changing the basis of representation and taxation, (and he did not deem them at all necessary at the present time,) he knew of none better than a simple proposition, embraced in a few lines, making in each State the number of qualified voters the basis of representation, and the value of property the basis of direct taxation. Such a proposition could be embraced in the following terms: “‘Representatives shall be apportioned among the several States which may be included within this Union according to the number of qualified voters in each State. “‘Direct taxes shall be apportioned among the several States which may be included within this Union according to the value of all taxable property in each State.’ “An amendment of this kind would, in his opinion, place the basis of representation and direct taxation upon correct principles. The qualified voters were, for the most part, men who were sub-

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ject to draft and enlistment when it was necessary to repel invasion, suppress rebellion, and quell domestic violence and insurrection. They risk their lives, shed their blood, and peril their all to uphold the Government and give protection, security, and value to property. It seemed but just that property should compensate for the benefits thus conferred by defraying the expenses incident to its protection and enjoyment. “Such an amendment, the President also suggested, would remove from Congress all issues in reference to the political equality of the races. It would leave the States to determine absolutely the qualifications of their own voters with regard to color; and thus the number of Representatives to which they would be entitled in Congress would depend upon the number upon whom they conferred the right of suffrage. “The President, in this connection, expressed the opinion that the agitation of the negro-­franchise question in the District of Columbia at this time was the mere entering-­wedge to the agitation of the question throughout the States, and was ill-­times, uncalled for, and calculated to do great harm. He believed that it would engender enmity, contention, and strife between the two races, and lead to a war between them which would result in great injury to both, and the certain extermination of the negro population. Precedence, he thought, should be given to more important and urgent matters, legislation upon which was essential for the restoration of the Union, the peace of the country, and the prosperity of the people.”

Mr. STEVENS. I am rather glad the gentleman from Kentucky [Mr. Smith] called for the reading of that paper, because it shows that the President and I agree exactly, on one point at least; for he leaves out the word “male” in condemnation of the gentleman from Ohio, [Mr. Schenck.] I am very glad he called for the reading of the paper. ... Mr. JOHNSON. I call for the reading of the joint resolution. The Clerk read the joint resolution. The question was then taken on agreeing to the joint resolution as modified by the committee; and it was decided in the affirmative—yeas 120, nays 46, not voting 16;

... The SPEAKER. Two thirds having voted in the affirmative, I declare the joint resolution to have been adopted.

30 US House, Freedmen’s Bureau Bill, Adding “the Constitutional Right to Bear Arms” February 1, 1866*

The House then resumed the consideration of the special order, being Senate bill No. 60, to enlarge the powers of the Freedmen’s Bureau, with certain amendments reported in the nature of a substitute from the select committee on the Freedmen’s Bureau. Mr. DONNELLY. I ask the clerk to read an amendment which I offer to the bill. The Clerk read the amendment, as follows: After the word “school,” in line seven, section six, insert the following: And the Commissioner may provide a common school education to all refugees and freedmen who shall apply therefor.

Mr. ELIOT. Will the gentleman from Minnesota yield to me for a moment to make a statement? Mr. DONNELLY. I yield to the gentleman. Mr. ELIOT. It is my intention to call the previous question on the pending motion tomorrow at three o’clock. I say this for the purpose of giving notice to gentlemen on both sides of the House that I propose then to bring the discussion to a close. Mr. STEVENS. I desire to know if the gentleman intends to call the previous question without affording an opportunity for amendment? I have one or two amendments which I deem very important, and I am anxious to offer them before the previous question is called. Mr. BANKS. I desire also to offer an amendment. ... I will read the amendment I desire to offer when the proper time comes. I shall move, if I am permitted to do 83

* Cong. Globe, 39th Cong., 1st Sess., 585 (Feb. 1, 1866).

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so, to amend the seventh section of this bill by inserting after the word “including” the words “the constitutional right to bear arms;” so that it will read, “including the constitutional right to bear arms, the right to make and enforce contracts, to sue,” &c.*

31 US Senate, Civil Rights Bill, Debate, Vote, and Passage February 2, 1866†

The PRESIDENT pro tempore. The unfinished business of yesterday is now before the Senate as in Committee of the Whole, being the bill (S. No. 61) to protect all persons in the United States in their civil rights, and furnish the means of their vindication; ... Mr. DAVIS. Mr. President, I hold that there is no legitimate power to pass any law connected with the subject of this bill, except what is contained in the clause of the Constitution which declares that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” If there is any broader or other power vested in Congress to pass the measure under consideration, or any cognate measure, I would thank the able and learned Senator from Illinois to point it out to the Senate. Holding that, then, to be the sole and exclusive power that is vested in Congress over the subject-­matter of this bill, I will proceed to make some remarks upon the amendment and upon the bill. ... If the Senate would act legitimately upon this subject, its action must be confined to such matters as concern the citizens of different States. It has no power whatever to act in relation to the matters of this bill so far as those matters concern the citizens of a single State. . . . When does this principle of the Constitution apply? Under what state of facts does it arise? To what state of facts can it be made applicable? Only when a citizen of one * [This language was added to an amended version of the Freedmen’s Bureau Bill, passed later that summer. See Act of July 16, 1866, ch. 200, 14 Stat. 173. —Ed.] † Cong. Globe, 39th Cong., 1st Sess., 594–607 (Feb. 2, 1866).

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State goes into another State, either to change his residence to that other State, or to acquire property there, or to exercise some other right or privilege which a citizen of that other State is entitled to in that State. I do not know that I make myself understood by the honorable chairman. I will endeavor, though, to do so. He proposes now to apply his bill to every citizen of the United States, without regard to color, where that citizen is domiciled in the State in which he was born, and when he has no purpose to leave and is not in the act of leaving that State to go into another; and that is intended to be the great form in which this bill is to have all of its application. Now, I say that the bill constitutionally can have no such application. ... My position is, that if a white man was claiming the benefit of this provision of the Constitution, and he was a resident of the State of Maine or of the State of Kentucky, remaining there, not going into another State for the purpose of changing his residence or to claim any immunity or privilege of a citizen in another State, under the Constitution, we could not embrace him by any act which we could pass in virtue of this provision of the Constitution. Certainly, by a legal mind as astute and as learned as that of my friend from Maine [Mr. Morrill] that proposition cannot be doubted. Now, sir, I throw myself back upon the original, primary, general principle of the division of the powers of the Government which I stated at the commencement of my remarks this morning, namely, that in relation to the citizens of the State and to all questions and matters that arise within a State and that do not relate to acts, privileges, and immunities that lie between two States, but that are entirely local to a particular State, jurisdiction was expressly reserved by the States to themselves and withheld from and denied to the General Government. I suppose that no sound lawyer, whose mind is free from prejudice and has not been infected by the fanaticism and the wild dreams of liberty and of philanthropy that have sprung up in this day and generation, would doubt that principle. What, then, does this bill propose to do? It proposes to go into Kentucky, and to regulate the free negro of that State who was born there, who has lived there always, whose business and interests are entirely local to that State. Where is the clause in the Constitution that authorizes Congress to interpose by its legislative powers, and to seize from the state of Kentucky her exclusive right to control the negro population that I have

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thus described, and all their transactions and all their interests—to draw this local subject, reserved by the States to themselves in the Constitution, to the legislative powers of Congress? Sir, the authorities which were the other day read and relied upon by the honorable Senator from Illinois* overthrow his premises; they contravene his principles and all the conclusions which he draws from them. They expressly and explicitly sustain the view which I am now taking of the subject. Let me turn to those authorities and read a few passages from them. First, let me read from the case of Campbell vs. Morris, in 3 Harris & McHenry’s Reports. In that case Mr. Justice Chase said:

“The court are of opinion it means that the citizens of all the States shall have the peculiar advantage of acquiring and holding real as well as personal property, and that such property shall be protected and secured by the laws of the State in the same manner as the property of the citizens of the State is protected. It means such property shall not be liable to any taxes or burdens which the property of the citizen is not subject to. It may also mean, that as creditors, they shall be on the same footing with the State creditor, in the payment of the debts of a deceased debtor. It secures and protects personal rights.”

These principles are all correctly laid down, according to my judgment. I agree with the Maryland judge in relation to these premises. ... I have got the other decision to which the honorable Senator referred before me, but I will not read from it except to quote the extract which the honorable gentleman embodied in his speech and upon which he relied, and it is just as hostile to his position and his bills as the two from which I have read. “But, sir,” says the honorable gentleman—

“By the second section of the fourth article of the Constitution of the United States the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States. “‘Privilege’ and ‘immunity’ are synonymous, or nearly so. Privilege signifies a peculiar advantage, exemption, immunity; immunity signifies exemption, privilege. “The peculiar advantages and exemptions contemplated under this part of the Constitution may be ascertained, if not with precision and accuracy, yet satisfactorily. “By taking a retrospective view of our situation antecedent to the formation of the first General Government, or the Confederation, in which the same clause is inserted verbatim, one of the great objects must occur to every person, which was the enabling the citizens of the several States to acquire and hold real property in any of the States, and deemed necessary, as each State was a sovereign, independent State, and the States had confederated only for the purposes of general defense and security, and to promote the general welfare. “It seems agreed, from the manner of expounding or defining the words ‘immunities’ and ‘privileges’ by the counsel on both sides, that a particular and limited operation is to be given to these words, and not a full and comprehensive one. It is agreed it does not mean the right of election, the right of holding offices, the right of being elected.”

“The decision most elaborate upon this clause of the Constitution is to be found in Washington’s Circuit Court Reports, in a case which was reserved for consideration after argument. I will read several sentences from the opinion of the circuit judge, because it will be seen that he enumerates the very rights belonging to a citizen of the United States which are set forth in the first section of this bill.”

Yes, he does, but to whom does he attach them? Who does he say are entitled to these rights? The citizens of the other State, and not the citizen of the State who has been born in and has been local to his State all the time. Let me read what the honorable Senator has extracted from Judge Washington’s decision:

And in this respect the decision was somewhat with the great authority of my honorable friend from Maryland: * [That is, Mr. Trumbull. —Ed.]

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“The next question is, whether this act infringes that section of the Constitution which declares that ‘the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States?” “The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong of right to the

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citizens of all free Governments; and which have at all times been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended 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, or 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 the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added the elective franchise, as regulated and established by the laws or consti­ tution of the State in which it is to be exercised.” —Corfield vs. Coryell, 4 Washington’s Circuit Court Reports, page 380.

removed into the other State and changed his relationship. The opinions relied on by the honorable Senator do not establish any other proposition. On the contrary, they negative almost in positive terms—they do, as satisfactorily as though the language they used was ever so positive, negative the idea that a citizen, black or white, of a State, born in that State, having no business, no transactions in another State, not having gone into another State to change his place of residence, but still living and residing in the State where he was born, is or can become the subject of congressional legislation under this provision of the Constitution. Such a citizen is not in a condition, not in a predicament, to claim the advantage of this provision of the Constitution. Mr. President, I then come to the conclusion, and I think that it is legitimately reached, it is reached in virtue of the gentleman’s authorities, that his bill, so far as it legislates upon the person or property of white citizens or negroes who have always lived in one State, and who have no business and no transactions and claim no rights and no immunities in another State, is flagrantly unconstitutional and void. ... Mr. TRUMBULL. ... [T]he Senator occupies an hour of his speech to show that certain cases which I thought proper to refer to in a few remarks, the other day, in order to ascertain what was meant by the term “citizen of the United States,” have no application to the rights of a citizen in a State. Those cases, he says, were based upon that clause of the Constitution which declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States, and they relate entirely to the rights which a citizen in one State has on going into another State, and not to the rights of the citizens belonging to the State. I never denied that. I would have told the Senator in one moment that the cases were not introduced for any such purpose as he supposes, but they were introduced for the purpose of ascertaining, if we could, by judicial decision what was meant by the term “citizen of the United States;” and inasmuch as there had been judicial decisions upon this clause of the Constitution, in which it had been held that the rights of a citizen of the United States were certain great fundamental rights, such as the right to life, to liberty, and to avail one’s self of all the laws passed

In relation to the other rights, except the right to vote, which this judge says only attaches when the party removing from one State into another has become a citizen of the second State, and has conformed to all the laws regulating the right to vote in that State, what description of persons does he apply then to? Who does he say are entitled to these other rights? ... All these rights and privileges are attributed by the decision of the court to the citizens of one State going into another State. If Senators will examine this opinion, they will find that every doctrine laid down by it, and every right and privilege of the citizen that it establishes under the clause of the Constitution which I have read, appertains to a citizen residing in his own State and claiming these immunities or privileges in another State, or they attach to a citizen of one State who has 86

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for the benefit of the citizen to enable him to enforce his rights; inasmuch as this was the definition given to the term as applied in that part of the Constitution, I reasoned from that, that when the Constitution had been amended and slavery abolished, and we were about to pass a law declaring every person, no matter what color, born in the United States a citizen of the United States, the same rights would then appertain to all persons who were clothed with American citizenship. That was the object for which those cases were introduced. The Senator seemed to suppose, and argued to show what no one would controvert, that they were not cases deciding upon the rights of the citizen in the State in which he resided. But the Senator goes on to say that there is no such thing as naturalizing a person except he be a foreigner; that there is no authority in the Congress of the United States to declare a person a citizen except it be by way of naturalizing a foreigner. I have already said that in my opinion birth entitles a person to citizenship, that every free-­born person in this land is, by virtue of being born here, a citizen of the United States, and that the bill now under consideration is but declaratory of what the law now is; but, inasmuch as some persons deny this, I thought it advisable to declare it in terms in the statute itself. ... Now, sir, the hour having arrived when we agreed to vote upon this bill, without taking up further time, I trust the Senate will take action upon it. ... Mr. SAULSBURY. I move to amend the bill in the second line of the first section by adding after the words “civil rights” the words “except the right to vote in the States.” Mr. TRUMBULL. I will only say in reference to that matter, that that is a political privilege, not a civil right. This bill relates to civil rights only, and I do not want to bring up the question of negro suffrage in the bill. I hope the Senator will not persist in any such amendment. Mr. SAULSBURY. I want to test that very fact. I may be mistaken, but for twenty years I have had to use the law as an instrument, as the workman uses his instruments, to make a living, and I do hold that under the words “civil rights” the power to vote is given, because it is a civil right. The honorable chairman of the Judiciary Committee who has this bill under charge says he

does not mean to confer that right. His meaning cannot control the operation or the effect of this law, if the bill shall become a law. I believe that if this bill is enacted into a law your judges in most of the States will determine that under these words the power of voting is given. The honorable Senator cited an authority the other day, from Maryland I think it was, in which it was decided that that right was conferred after domicile had been acquired according to the laws of the State. Sir, I wish to exclude that very idea; and if you do not mean to confer that power I want you to say so. However highly I esteem the learning of the honorable chairman of the Judiciary Committee, I am not willing to trust to his declaration that that power is not to be conferred, and I want this Congress to say that in conferring these civil rights they do not mean to confer the right to vote. Talk to me, sir, about the words “civil rights” not including the right to vote! What is a civil right? It is a right that pertains to me as a citizen. And how do I get the right to vote? I get it by virtue of citizenship, and I get it by virtue of nothing else. When this act is passed into a law, and I find a Republican judge in any of the States of this country deciding that under it a negro has the right to vote, I am not going to quarrel with the opinion of that judge, because I believe he is deciding the law correctly. Sir, if you do not intend to confer that right, say so. If you do not mean to invade the States of this Union, and take from them the right to prescribe the qualifications of voters, say so. That is all I ask. Do not leave it in doubt. As I said the other day, I know but two foundations of right that any man has: one is a right founded in nature; the other is a right founded in law. Under the law of nature I have got no right to vote. Under the law regulating society and government I have a right to vote. I get it simply on the ground of my citizenship; and your bill confers that right. It will not do for the honorable chairman of the Judiciary Committee to say that by specifying in other lines of the first section the right to sue and be sued, and to give evidence, to lease and to hold property, he limits these rights. He does no such thing. He may think that that is the intention; but when you come to look at the powers conferred by this section, and when you consider the closing words of the section, giving to everybody, without distinction of race or color, the same rights to protection of property and person and liberty, when these rights are given to the negro as freely as to 87

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the white man, I say, as a lawyer, that you confer the right of suffrage, because, under our republican form and system of government, and according to the genius of our republican institutions, one of the strongest guarantees of personal rights, of the rights of person and property, is the right of the ballot. Now, gentlemen, let us deal fairly, squarely, and honestly with each other. If you do not mean to confer this power, say so. I only ask you to say, by my amendment, that you do not mean by this bill to confer that power. If you vote down my proposition, what will be the interpretation put upon your law? If it shall go before any judicial tribunal of this country, and they find that you voted down this amendment, what is the interpretation they will put upon it? That you meant to confer the power, simply because you refused to say that you did not. But, sir, I will not argue the question. It is a foregone conclusion that this bill is to pass, and I shall not detain the Senate. I want a distinct vote, however, upon my proposition, and I ask for the yeas and nays. The yeas and nays were ordered; and being taken, resulted—yeas 7, nays 39; as follows: YEAS—Messrs. Cowan, Davis, Hendricks, Nesmith, Riddle, Saulsbury, and Stockton—7. NAYS—Messrs. Anthony, Brown, Buckalew, Chand­ ler, Clark, Conness, Cragin, Dixon, Doolittle, Fessen­den, Foot, Foster, Guthrie, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Mc­Dou­gall, Morgan, Morrill, Norton, Nye, Poland, Pome­roy, Ram­ sey, Sherman, Sprague, Stewart, Sumner, Trum­bull, Van Winkle, Wade, Willey, Williams, Wilson, and Yates—39. ABSENT—Messrs. Creswell, Grimes, Johnson, and Wright—4. So the amendment was rejected. ... Mr. HENDRICKS and Mr. WILSON called for the yeas and nays on the passage of the bill. The yeas and nays were ordered. The Secretary proceeded to call the roll, and Mr. Anthony responded to his name. Mr. NORTON. Mr. President— Several Senators. Too late. The PRESIDENT pro tempore. Debate is not in order, the call of the roll having commenced, and a response having been made. Mr. MORRILL, (when Mr. Johnson’s name was called.) The Senator from Maryland was necessarily

called away some time ago, and he desired me to say that if present he would vote against the passage of the bill. The call was concluded with the following result: YEAS—Messrs. Anthony, Brown, Chandler, Clark, Conness, Cragin, Dixon, Fessenden, Foot, Foster, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague, Stewart, Sumner, Trumbull, Wade, Willey, Williams, Wilson, and Yates—33. NAYS—Messrs. Buckalew, Cowan, Davis, Guthrie, Hendricks, McDougall, Nesmith, Norton, Riddle, Saulsbury, Stockton, and Van Winkle—12. ABSENT—Messrs. Creswell, Doolittle, Grimes, John‑ son, and Wright—5.

32 US House, Freedmen’s Bureau Bill, Debate and Passage February 2, 1866*

The House, agreeably to order, resumed the consideration of the bill (S. No. 60) to enlarge the powers of the Freedmen’s Bureau, on which Mr. Marshall was entitled to the floor. Mr. MARSHALL. ... I know that some have pretended that Congress acquires the powers asserted in this bill by virtue of the second clause of the amendment to the Constitution recently adopted. ... Congress has power to enforce what? The abolition of slavery. This is not denied. Slavery is abolished throughout the entire land. If any man asserts the right to hold another in bondage as his slave, his chattel, and refuses to let him go free, Congress can by law, under this clause, provide by appropriate legislation for the punishment of the offender and the protection from slavery of the freedman. But Congress has acquired not a * Cong. Globe, 39th Cong., 1st Sess., 627, 628, 632 (Feb. 2, 1866). 88

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particle of additional power other than this by virtue of this amendment. ... In the State of Illinois we do not grant to the African race all the privileges and immunities which are granted to the white race. But, sir, is the black man in Illinois in consequence of that a slave? If unjust and unequal laws make all slaves who are injured thereby, then, sir, we of the West are all now reduced to slavery. ... Mr. MOULTON. ... Now, the gentleman from Illinois [Mr. Marshall] asks us on this side of the House to inform him where we get the power to pass this bill for the protection of this class of people in the South. I will recite some of the provisions of the Constitution in which I believe ample and sufficient constitutional authority can be found for every word and every letter in this bill. The Constitution declares that Congress shall have power to declare war and make rules and regulations concerning captures on land or upon water; that Congress shall have power to raise and support armies; that Congress shall have power to make rules for the government and regulation of the land and naval forces of the United States; that Congress shall have power to provide for calling out the militia to execute the laws, to suppress insurrection, to secure tranquillity, and to repel invasion; that Congress shall have power to make all laws necessary and proper for carrying into execution the foregoing powers. And it is also made the duty of Congress to guaranty to each State a republican form of government, and to provide for the common good and for the general welfare. The Constitution also provides that the citizens of each State shall be entitled to all the immunities and privileges of the citizens of the respective States. And last, though not least, the constitutional amendment which has just been ratified for the abolition of slavery provides that Congress shall by proper legislation carry into execution the provisions of that amendment. Here, Mr. Speaker, is where I find ample and sufficient power for the enactment of every provision of this bill. ... I understand that the civil rights referred to in the bill are not of the fanciful character referred to by the gentleman, but the great fundamental rights that are secured by the Constitution of the United States, and

that are defined in the Declaration of Independence, the right to personal liberty, the right to hold and enjoy property, to transmit property, and to make contracts. These are the great civil rights that belong to us all, and are sought to be protected by this bill. Mr. THORNTON. On the point upon which my colleague is now speaking, civil rights, I would ask him if a marriage between a white man and a white woman is a civil right? Mr. MOULTON. It is not a civil right. Mr. THORNTON. It is not? Mr. MOULTON. No, sir, not in my opinion. Mr. THORNTON. Then what sort of a right is it? Mr. MOULTON. Marriage is a contract between individuals competent to contract it. Mr. THORNTON. Is it a political or a civil right? Mr. MOULTON. It is a social right. I understand that a civil right is a right that a party is entitled to and that he can enforce by operation of law. Mr. THORNTON. I would ask my colleague if marriages are not contracted in all the States of this Union by virtue of provisions of law? Mr. MOULTON. I think, perhaps, they are to a greater or less extent. Mr. THORNTON. Then is not a contract provided for by law a civil right? Mr. MOULTON. It is not especially provided for by the law regulating it. The right to marry is a right which cannot be enforced. There are a great many things a man can do that are imperfect obligations which cannot be enforced by law, and hence are not civil rights contemplated by this bill.*

* [Four days later, on February 6, 1866, the House passed the Freedmen’s Bureau Bill by a vote of 136 to 33 (13 not voting). John Bingham joined those supporting passage. See Cong. Globe, 39th Cong., 1st Sess., 688 (1866). The Senate had previously passed the Freedmen’s Bureau Bill on January 25, 1866, on a vote of 37 to 10 (3 absent). See Cong. Globe, 39th Cong., 1st Sess., 421 (1866); this section, doc. 18. —Ed.] 89

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So the amendment was agreed to. The question was upon agreeing to the proposed amendment of the Constitution as amended. The question was taken by yeas and nays, and it was determined in the affirmative, yeas 9, nays 4, absent and not voting 2, as follows: Yeas—the Chairman, Messrs. Grimes, Howard, Williams, Stevens, Washburne, Morrill, Bingham and Boutwell—9. Nays—Messrs. Harris, Grider, Conkling, and Rog­ers —4. Absent and not voting—Messrs. Johnson and Blow —2. So the proposition as amended was adopted. The question was upon ordering the same to be reported to Congress for adoption. On motion of Mr. Boutwell, the further consideration of the same was postponed for the present.

33 Joint Committee, John Bingham, Proposed Amendment Granting Power to Secure the Rights “of Citizens in the Several States” and “to All Persons in the Several States Equal Protection in the Rights of Life, Liberty and Property” February 3, 1866*

The Committee met pursuant to call of its Chairman; absent Messrs. Johnson and Blow. The Committee resumed the consideration of the proposed amendment of the Constitution of the United States, reported from the sub-­committee on powers of Congress; the same having been amended, when last under consideration by the Committee (January 27, 1866) to read as follows: “Congress shall have power to make laws which shall be necessary and proper to secure to all persons in every State full protection in the enjoyment of life, liberty and property; and to citizens of the United States in every State the same immunities, and equal political rights and privileges.” Mr. Bingham moved the following as a substitute by way of amendment: “The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty and property (5th Amendment).” After discussion, The question was taken by yeas and nays, and it was determined in the affirmative, yeas 7, nays 6, absent and not voting 2, as follows: Yeas—Messrs. Howard, Williams, Washburne, Morrill, Bingham, Boutwell and Rogers—7. Nays—The Chairman, Messrs. Grimes, Harris, Stevens, Grinder and Conkling.—6. Absent and not voting—Messrs. Johnson and Blow —2. * Journal of the Joint Committee, 60–61.

34 US Senate, Apportionment Amendment, Speech of Charles Sumner February 6, 1866†

Mr. Sumner concluded the speech which he began yesterday. To preserve the continuity of his argument, the speech is now published complete, as follows: Mr. SUMNER. Mr. President, I begin by expressing my acknowledgements to the Senator from Maine, who yields the floor to me to-­day, and also my sincere regret that anything should interfere with the opening of this debate by him. It is his right, and I enter upon it now only by his indulgence. I am not insensible to the responsibility which I assume in setting myself against a proposition already adopted in the other House, and having the recommendation of a committee to which the country looks with such just expectation, and to which, let me say, I look with so much trust. But after careful reflection, I do not feel that I can do otherwise. Knowing, as I do, the eminent character of the committee, its intelligence, its patriotism, and the moral instincts by which it is moved, I am at a loss to understand the origin of a proposition 90

† Cong. Globe, 39th Cong., 1st Sess., 673–74 (Feb. 6, 1866).

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which seems to me nothing else than another Compromise of Human Rights, as if the country had not already paid enough in costly treasure and more costly blood for such compromises in the past. I had hoped that the day of compromise with wrong had passed forever. Ample experience shows that it is the least practical mode of settling questions involving moral principles. A moral principle cannot be compromised. Here are the words of the amendment: Provided, That whenever the elective franchise shall be denied or abridged on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation.

I may be mistaken, sir, but I think it difficult to read this proposition without being painfully impressed by the discord and defilement which it will introduce into the Constitution, having among its specific objects the guarantee of a republican form of government. The discord is apparent on the face. The defilement is none the less apparent. Go back, if you please, to the adoption of the Constitution, and you will gratefully acknowledge that the finest saying of the times was when Madison, evidently inspired by the Declaration of Independence, and determined to keep the Constitution in harmony with it, insisted in well-­ known words, that “it was wrong to admit in the Constitution the idea of property in man.” Of all that has come to us from that historic Convention, where Washington sat as President, and Franklin and Hamilton sat as members, there is nothing having so much of imperishable charm. It was wrong to admit in the Constitution the idea that man could hold property in man. Accordingly, in this spirit the Constitution was framed. This offensive idea was not admitted. The text at least was kept blameless. And now, after generations have passed, surrounded by the light of Christian truth and in the very blaze of Human Freedom, it is proposed to admit in the Constitution the twin idea of Inequality in Rights, and thus openly set at naught the first principles of the Declaration of Independence and the guarantee of a republican government itself, while you blot out a whole race politically. For some time we have been carefully expunging from the statute-­book the word “white,” and now it is proposed to insert in the Constitution itself a distinction of color. An amendment, according to the dictionaries, is “an improvement”—“a change for the better.” Surely the present proposition is an amendment which like the crab goes backward.

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Such is its appearance when you regard it merely in its form, without penetrating its substance; but here it is none the less offensive. The case is plain. There are among us four million citizens, now robbed of all share in the government of their country, while at the same time they are taxed according to their means, directly and indirectly, for the support of the Government. Nobody can question this statement. And this bare-­faced tyranny of taxation without representation it is now proposed to recognize as not inconsistent with fundament right and the guarantee of a republican government. Instead of blasting it you go forward to embrace it as an element of political power. If, by this, you expect to induce the recent slave-­ master to confer the right of suffrage without distinction of color, you will find the proposition a delusion and a snare. He will do no such thing. Even the bribe you offer will not tempt him. If, on the other hand, you expect to accomplish a reduction of his political power, it is more than doubtful you will succeed, while the means you employ are unworthy of our country. There are tricks and evasions possible, and the cunning slave-­master will drive his coach and six through your amendment stuffed with all his representatives. Should he cheat you in this matter, it will only be a proper return for the endeavor on your part to circumvent him at the expense of fellow-­citizens to whom you are bound by every obligation of public faith. I know not if others will see this uncertainty as I see it; but there are two practical consequences having a direct influence on the times, which all must see as following at once from the adoption of the so-­called amendment. In the first place, it will be a present renunciation of all power under the Constitution to apply the remedy for a grievous wrong, when the remedy, even according to your own recent example, is actually in your hands. You have already in this Chamber, only last Friday, decreed civil rights without distinction of color. Who can doubt, that by the same title you may decree political rights also, without distinction of color? ... I speak with a sincere deference for those valued friends from whom I differ; but I submit that the time has come at last when we should deal directly and not indirectly with the great question before us, and when all compromise of Human Rights should cease, and especially there should be no thought of a three-­headed compromise, which, after degrading the Constitution, renounces a beneficent power essential to the safety of

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the Republic, and, lastly, borrowing an example from Pontius Pilate, turns over a whole race to sacrifice. These objections I now present briefly on the threshold, without argument, and I advance to the main question which must dominate this whole debate. By way of introduction I send to the Chair a counter-­proposition, which I desire to have read. The Secretary read the following joint resolution:

four swelling into an irresistible current, and tending to one conclusion: first, the necessity of the case, by which, according to the analogies of the “Territories,” disloyal States, having no local government, lapse under the authority of Congress; secondly, the Rights of War, which do not expire or lose their grasp, except with the establishment of all needful guarantees; thirdly, the constitutional injunction to guaranty a Republican Form of Government; and, fourthly, the constitutional amendment by which Congress, in words of peculiar energy, is empowered “to enforce” the abolition of slavery “by appropriate legislation.”

A joint resolution carrying out the guarantee of a republican form of government in the Constitution of the United States, and enforcing the constitutional amendment for the prohibition of slavery. Whereas it is provided in the Constitution that the United States shall guaranty to every State in the Union a republican form of government; and whereas by reason of the failure of certain States to maintain governments which Congress might recognize, it has become the duty of the United States, standing in the place of guarantor, where the principle has made a lapse, to secure to such States according to the requirement of the guarantee, government republican in form; and whereas further, it is provided in a recent constitutional amendment that Congress may “enforce” the prohibition of slavery by “appropriate legislation,” and it is important to this end, that all relics of slavery should be removed, including all distinction of rights on account of color: Now therefore, to carry out the guarantee of a republican form of government and to enforce the prohibition of slavery, Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That there shall be no Oligarchy, Aristocracy, Caste, or Monopoly invested with peculiar privileges and powers, and there shall be no denial of rights, civil or political, on account of color or race anywhere within the limits of the United States or the jurisdiction thereof; but all persons therein shall be equal before the law, whether in the court-­ room or at the ballot-­box. And this statute, made in pursuance of the Constitution, shall be the supreme law of the land, anything in the Constitution or laws of any State to the contrary notwithstanding.

... The powers of Congress over this subject are as ample as they are beneficent. From four specific fountains they flow—each one sufficient for the purpose—all

35 US Senate, Apportionment Amendment, Remarks of William Pitt Fessenden February 7, 1866*

The PRESIDENT pro tempore. If there be no further morning business, the Chair will call up the unfinished business of yesterday, which is the joint resolution (H.R. No. 51) proposing to amend the Constitution of the United States, the pending question being upon the amendment proposed by the Senator from Massachusetts, [Mr. Sumner] upon which the Senator from Maine [Mr. Fessenden] is entitled to the floor. Mr. HENDERSON. With the very kind permission of the Senator from Maine, before he commences his argument, which I suppose will go to the whole question and be, as everything that comes from him is, able and exhaustive, I desire to submit an amendment to the amendment, so that the proposition that I had the honor to submit some days ago and had referred to the committee on reconstruction may at the same time be considered in the lengthy arguments of Senators upon the various propositions that may be submitted for the amendment of the Constitution. The PRESIDENT pro tempore. The question will be on the amendment to the amendment, which will be read. The Secretary then read the amendment to the 92

* Cong. Globe, 39th Cong., 1st Sess., 702–6 (Feb. 7, 1866).

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amendment, which was to strike out all after the word “that” in the amendment, and to insert the following in lieu thereof: The following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid to all intents and purposes as part of the said Constitution, namely: Article 14. No State, in prescribing the qualifications requisite for electors therein shall discriminate against any person on account of color or race.

Mr. FESSENDEN. Mr. President, I think I might raise a question, if I were so disposed, upon the propriety of the amendment submitted by the honorable Senator from Massachusetts. I am not aware that a bill can properly be offered as an amendment to a proposition to amend the Constitution. It is substituting one thing for another of a very different nature; and I do not see very well how, upon the same principle, the amendment of my honorable friend from Missouri can be offered as a substitute for the bill that is presented by the Senator from Massachusetts. I do not propose, however, to raise any question upon either, for it really makes no difference in this discussion. I take it, it is very possible that the amendment to the Constitution proposed by the committee, of which I have the honor to be a member, needs some correction. If so, Senators have had ample time to examine it, and they will be prepared, undoubtedly, to suggest what may be necessary in order to do what the honorable Senator from Massachusetts has said is the proper office of an amendment, improve the proposition which I have submitted on the part of the committee. I should be very glad to see it made stronger. ... Why not propose a simple amendment precisely in the same terms the honorable Senator from Missouri [Mr. Henderson] has—a proposition doing away at once with all distinctions on account of race or color in all the States of this Union so far as regards civil and political rights, privileges and immunities? That would go to the root of the matter. I am free to confess that, could I legislate upon that subject, although I can see difficulties that would arise from it, yet trusting to time to soften them, and being desirous, if I can, to put into the Constitution a principle that commends itself to the consideration of every enlightened mind at once, I would prefer something of that sort, a distinct proposi-

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tion that all provisions in the constitution or laws of any State making any distinction in civil or political rights, or privileges, or immunities whatever, should be held unconstitutional, inoperative, and void, or words to that effect. I would like that much better; and I take it there are not many Senators within the sound of my voice who would not very much prefer it; but, after all, the committee did not recommend a provision of that description, and I stand here as an organ of the committee, approving what they have done, and not disposed to urge my own peculiar views, if I have any, against theirs, or to rely exclusively on my own judgment so far as to denounce what honorable and true men, of better judgments than myself, have thought best to recommend, and in which I unite and agree with them. An objection that might be made to that, a real objection, would be its immediate operation. It would place the States which have recently been slave States in this condition, that they must either limit the suffrage too far or they must extend it too far for their own safety, or, at any rate, for what might be presumed to be their own good. I take it no one contends, I think the honorable Senator from Massachusetts himself, who is the great champion of universal suffrage, would hardly contend, that now at this time the whole mass of the population of the recent slave States is fit to be admitted to the exercise of the right of suffrage. I presume no man who looks at the question dispassionately and calmly could contend that the great mass of those who were recently slaves, (undoubtedly there may be exceptions,) and who have been kept in ignorance all their lives, oppressed, more or less forbidden to acquire information, are fit at this day to exercise the right of suffrage, or could be trusted to do it, unless under such good advice as those better able might be prepared to give them. . . . Of course I would trust to time, and it would have its effect. With that great principle lying at the bottom, after awhile the result would be attained, and we should have in the Constitution itself what I would like to see there, a glorious exhibition of what does, as the honorable Senator from Massachusetts proved to us, lie at the very foundation of republican government. But however this might be, (and I do not propose to enlarge upon it, I only propose to state the difficulties,) I am not convinced that suffrage is such a very natural right that it must necessarily be conferred upon every free man. I think no Senator will contend for that. In a republican Government it may be that it may receive the name of a right, although most people call it a privi-

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lege; but a voter is an officer, not in the same degree, perhaps, but as much so in substance as the man who enters the jury box, as any one who holds an office. It is a trust imposed upon him by the law, which he executes under the law; and although I hold that the exercise of the right of suffrage should be extended just as fast and as far as the public good will allow, I do not hold that any man is injured when a just and reasonable law provides that something more is necessary to him than a bare existence as a free man in a community in order to exercise it. While the honorable Senator from Massachusetts argued, and argued with great force, that every man should have that right, and that he should only be subject to disabilities which he could overcome, his argument, connected with the other principle that he laid down and the application of it that he made, that taxation and representation should go together, would just as well apply to women as to men; but I noticed that the Senator dodged that part of the proposition very carefully. ... I come back to that which I stated: what are the objections to putting into the Constitution at once a provision doing away with all distinctions of this kind? I have given one answer which does not satisfy myself. But the argument that addressed itself to the committee was, what can we accomplish? What can pass? If we report a provision of this kind is there the slightest probability that it will be adopted by the States and become a part of the Constitution of the United States? It is perfectly evident that there could be no hope of that description. ... Laying, then, that out of the question, there are but two propositions to be considered: one is whether you will base representation on voters, either voters generally or citizens who are voters; and the other is the proposition which is before the Senate. I suppose that the proposition to base representation upon actual voters would commend itself to the honorable Senator from Massachusetts. . . . The slave States, unless prevented in some other way, might just provide that no person who is of a certain color or a certain race shall vote; ... The power exists now at the present time in all these States to make just such class or caste distinctions as they please. The Constitution does not limit them; the

Constitution in terms gives us no power; it leaves to the States, as everybody knows, the perfect authority to regulate this matter of suffrage to suit themselves. ... It will be noticed that the amendment which we have thus presented has one good quality: it preserves the original basis of representation; it leaves the matter precisely where the Constitution placed it in the first instance; it makes no changes in that respect; it violates no prejudice; it violates no feeling. Every State is represented according to its population with this distinction: that is a State says that it has a portion, a class, which is not fit to be represented—and it is for the State to decide—it shall not be represented; that is all. It has another good point: it is equal in its operation; all persons in every State are to be counted; nobody is to be rejected. With the very trifling exception fixed by the original Constitution, all races, colors, nations, languages, and denominations form the basis. But, sir, the great excellence of it—and I think it is an excellence—is, that it accomplishes indirectly what we may not have the power to accomplish directly. If we cannot put into the Constitution, owing to existing prejudices and existing institutions, an entire exclusion of all class distinctions, the next question is, can we accomplish that work in any other way? ... Sir, I would like better—indeed I drew a resolution to that effect and should like to have it passed—to append to this very resolution another resolution amending the Constitution and giving power to Congress to legislate upon the subject in full. The Senator would not agree with me, because he says that power exists now. Let us examine that question for a moment. I do not know but that the power does exist; my inclinations are all that way. I wish the power did exist, if it does not. But, sir, how did our ancestors, the fathers who made the Constitution, look upon this question of guarantee? Everybody will see—the Senator has certainly often contended and will not deny—that a constitution or a form of government which recognizes slavery is not a republican form of government, according to his definition, the American definition; and yet in the very instrument in which the fathers provided that the United States should guaranty to every State a republican form of government they recognized the existence of slavery unmistakably, and provided for it in the very clause that we have been considering with reference to 94

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representation. Did they then consider that the obligation to guaranty a republican form of government extended thus far, giving Congress the right to interfere in Virginia to examine her constitution? I ask the question that he may answer it, because after all he will admit, as a lawyer, as we all must, that in construing a constitution and construing a statute and construing any provision, we look at contemporaneous history in the first place, and we look more particularly when endeavoring to find out what the sense of an instrument is, at all its clauses, in order to get the meaning of all, for one explains the other. It would seem to me, then, that the Senator went a little too far with his argument as to the guarantee clause.

37 US Senate, William Pitt Fessenden Reports Proposed Amendment February 13, 1866†

Mr. FESSENDEN. The joint committee to inquire into the condition of the States which formed the so-­called confederate States have instructed me to report a joint resolution proposing an amendment to the Constitution of the United States. I move that for the present it lie upon the table, and be printed The joint resolution (S.R. No. 30) proposing an amendment to the Constitution of the United States was read the first time by its title. Mr. BROWN. Let it be read. Mr. SHERMAN. I should like to have it read in full. The joint resolution was read the second time at length. It is as follows:

36 Joint Committee, Adoption of John Bingham’s Version of Proposed Amendment February 10, 1866*

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of the said Legislatures, shall be valid as part of said Constitution, namely: 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 privileges and immunities of citizens in the several States; and to all persons in the several States equal protection in the rights of life, liberty, and property.

The Committee met pursuant to the call of its Chairman; absent Mr. Washburne. The Committee resumed the consideration of the joint resolution proposing an amendment to the Constitution of the United States, as amended on motion of Mr. Bingham at the last meeting. Mr. Stevens moved that the same be reported to the two Houses of Congress. The question was taken by yeas and nays, and it was decided in the affirmative, yeas 9, nays 5, absent and not voting 1, as follows: Yeas—the Chairman, Messrs. Grimes, Howard, Williams, Stevens, Morrill, Bingham, Boutwell, and Blow —9. Nays—Messrs. Harris, Johnson, Grider, Conkling and Rogers—5. Absent and not voting—Mr. Washburne—1. So the motion was agreed to.

The joint resolution was ordered to lie on the table, and be printed.

* Journal of the Joint Committee, 62–63.

† Cong. Globe, 39th Cong., 1st Sess., 806 (Feb. 13, 1866). 95

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38 US Senate, Freedmen’s Bureau Bill, President Andrew Johnson’s Veto Message February 19, 1866*

Mr. TRUMBULL. I now ask for the reading of the message from the President, returning a bill with his objections. The PRESIDENT pro tempore. The message will be read. The Secretary read the message, as follows:

To the Senate of the United States: I have examined with care the bill which originated in the Senate and has been passed by the two Houses of Congress to amend an act entitled “An act to establish a Bureau for the relief of Freedmen and Refugees,” and for other purposes. Having, with much regret, come to the conclusion that it would not be consistent with the public welfare to give my approval to the measure, I return the bill to the Senate with my objections to its becoming a law. ... The subjects over which this military jurisdiction is to extend in every part of the United States include protection to “all employees, agents, and officers of this bureau in the exercise of the duties imposed” upon them by the bill. In eleven States it is further to extend over all cases affecting freedmen and refuges discriminated against “by local law, custom, or prejudice.” 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, defining the “civil rights and immunities” which are thus to be secured to the freedmen by military law. ... In time of war it was eminently proper that we should provide for those who were passing suddenly from a condition of bondage to a state of freedom. But this bill proposes to make the Freed* Cong. Globe, 39th Cong., 1st Sess., 915–17 (Feb. 19, 1866).

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men’s Bureau, established by the act of 1865 as one of many great and extraordinary military measures to suppress a formidable rebellion, a permanent branch of the public administration, with its powers greatly enlarged. I have no reason to suppose, and I do not understand it to be alleged, that the act of March, 1865, has proved deficient for the purpose for which it was passed, although at that time, and for a considerable period thereafter, the Government of the United States remained unacknowledged in most of the States whose inhabitants had been involved in the rebellion. The institution of slavery, for the military destruction of which the Freedmen’s Bureau was called into existence as an auxiliary, has been already effectually and finally abrogated throughout the whole country by an amendment of the Constitution of the United States, and practically its eradication has received the assent and concurrence of most of those States in which it at any time had an existence. I am not, therefore, able to discern, in the condition of the country, anything to justify an apprehension that the powers and agencies of the Freedmen’s Bureau, which were effective for the protection of freedmen and refugees during the actual continuance of hostilities and of African servitude, will now, in a time of peace, and after the abolition of slavery, prove inadequate to the same proper ends. If I am correct in these views, there can be no necessity for the enlargement of the powers of the bureau, for which provision is made in the bill. The third section of the bill authorizes a general and unlimited grant of support to the destitute and suffering refugees and freedmen, their wives and children. Succeeding sections make provision for the rent or purchase of landed estates for freedmen, and for the erection for their benefit of suitable buildings for asylums and schools, the expenses to be defrayed from the Treasury of the whole people. . . . A system for the support of indigent persons in the United States was never contemplated by the authors of the Constitution; nor can any good reason be advanced why, as a permanent establishment, it should be founded for one class or color of our people more than another. Pending the war, many refugees and freedmen received support from the Government, but it was never intended that they should thenceforth be fed, clothed, educated, and sheltered by the United States. The idea on

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which the slaves were assisted to freedom was that, on becoming free, they would be a self-­sustaining population. Any legislation that shall imply that they are not expected to attain a self-­sustaining condition must have a tendency injurious alike to their character and their prospects. ... I cannot but add another very grave objection to this bill. The Constitution imperatively declares, in connection with taxation, that each State shall have at least one Representative, and fixes the rule for the number to which in future times, each State shall be entitled. It also provides that the Senate of the United States shall be composed of two senators from each State; and adds, with peculiar force, “that no State, without its consent, shall be deprived of its equal suffrage in the Senate.” The original act was necessarily passed in the absence of the States chiefly to be affected, because their people were then contumaciously engaged in the rebellion. Now the case is changed, and some at least, of those States are attending Congress by loyal Representatives, soliciting the allowance of the constitutional right for representation. At the time, however, of the consideration and the passing of this bill, there was no Senator or Representative in Congress from the eleven States which are to be mainly affected by its provisions. ... I would not interfere with the unquestionable right of Congress to judge, each House for itself, “of the elections, returns, and qualifications of its own members,” but that authority cannot be construed as including the right to shut out, in time of peace, any State from the representation to which it is entitled by the Constitution. At present, all the people of eleven States are excluded—those who were most faithful during the war not less than others. The State of Tennessee, for instance, whose authorities engaged in rebellion, was restored to all her constitutional relations to the Union by the patriotism and energy of her injured and betrayed people. Before the war was brought to a termination they had placed themselves in relations with the General Government, had established a State government of their own; as they were not included in the emancipation proclamation, they by their own act, had amended their constitution so as to abolish slavery within the limits of their State. I know

no reason why the State of Tennessee, for example, should not fully enjoy “all her constitutional relations to the United States.” ... The bill under consideration refers to certain of the States as though they had not “been fully restored in all their constitutional relations to the United States.” If they have not, let us at once act together to secure that desirable end at the earliest possible moment. It is hardly necessary for me to inform Congress that, in my own judgment, most of those States, so far at least as depends upon their own action, have already been fully restored, and are to be deemed as entitled to enjoy their constitutional rights as members of the Union. Reasoning from the Constitution itself, and from the actual situation of the country, I feel not only entitled, but bound, to assume, that, with the Federal courts restored, and those of the several States in the full exercise of their functions, the rights and interests of all classes of the people will, with the aid of the military in cases of resistance to the laws, be essentially protected against unconstitutional infringement or violation. Should this expectation unhappily fail, which I do not anticipate, then the Executive is already fully armed with the powers conferred by the act of March, 1865, establishing the Freedmen’s Bureau, and hereafter, as heretofore, he can employ the land and naval forces of the country to suppress insurrection or to overcome obstructions to the laws. In accordance with the Constitution I return the bill to the Senate, in the earnest hope that a measure involving questions and interests so important to the country will not become a law unless, upon deliberate consideration by the people, it shall receive the sanction of an enlightened public judgment. ANDREW JOHNSON.

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The conclusion of the reading of the message was followed by loud applause and hisses in the galleries. The PRESIDENT pro tempore. The Sergeant-­ at-­ Arms will proceed to clear those portions of the galleries where disturbances were made. Mr. SUMNER. Let the whole gallery be cleared. The PRESIDENT pro tempore. All portions of the galleries where disturbances were made will be cleared, if those portions can be discriminated; otherwise, the whole galleries will be cleared.

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39 US Senate, Freedmen’s Bureau Bill, Speech of Lyman Trumbull, Vote to Override Fails February 20, 1866*

The PRESIDENT pro tempore. The unfinished business of yesterday is the bill returned by the President of the United States, with his objections to its passage, it being Senate bill No. 60, to amend an act entitled “An act to establish a Bureau for the Relief of Freedmen and Refugees,” and for other purposes; and the question is: Shall the bill pass, the objections of the President of the United States notwithstanding? ... Mr. TRUMBULL. Mr. President, it was with surprise and profound regret that I read the extraordinary message of the President of the United States, returning with his objections the bill to amend an act entitled “An act to establish a Bureau for the Relief of Freedmen and Refugees,” and for other purposes. It has been my desire that the various departments of the Government should harmonize in the restoration of all the States to their full constitutional relations in the Union. I have sought to forward such measures as would protect the loyal refugees and freedmen in the rebellious States, and would, as I supposed, harmonize with the views of the Executive. He had proposed to the rebel States, as conditions precedent to their resumption of practical relations with the United States, “that civil rights should be secured by laws applicable alike to whites and blacks,” and had declared in his message, delivered to us at the commencement of the session, that “we shall but fulfill our duties as legislators by according equal and exact justice to all men, special privileges to none.” The only object and design of the bill was to secure these rights to all men; and I am greatly surprised that a bill designed for such a purpose should have been returned by the Executive with a statement that it is “as inconsistent with the actual condition of the country as it is at variance with the Constitution of the United States.” Having * Cong. Globe, 39th Cong., 1st Sess., 933, 936–43 (Feb. 20, 1866).

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taken a somewhat active part in the passage of this bill through the Senate, I feel called upon to vindicate myself from the charge of having urged upon the Senate a bill so unconstitutional and so inconsistent with the actual condition of the country as this is now declared to be. ... But, sir, the President most strangely of all dwells upon the unconstitutionality of this act, without ever having alluded to that provision of the Constitution which its advocates claim gives the authority to pass it. Is it not most extraordinary that the President of the United States returns a bill which has passed Congress, with his objections to it, alleging it be unconstitutional, and makes no allusion whatever in his whole message to that provision of the Constitution which, in the opinion of its supporters, clearly gives the authority to pass it. And what is that? The second clause of the constitutional amendment, which declares that Congress shall have authority by appropriate legislation to enforce the article which declares that there shall be neither slavery nor involuntary servitude throughout the United States. If legislation be necessary to protect the former slaves against State laws which allow them to be whipped if found away from home without a pass, has not Congress, under the second clause of the amendment, authority to provide it? What kind of freedom is that which the Constitution of the United States guaranties to a man that does not protect him from the lash if he is caught away from home without a pass? And how can we sit here and discharge the constitutional obligation that is upon us to pass the appropriate legislation to protect every man in the land in his freedom when we know such laws are being passed in the South if we do nothing to prevent their enforcement? ... The President objects to this bill because it was passed in the absence of representation from the rebellious States. If that objection be valid, all our legislation affecting those States is wrong, and has been wrong from the beginning. When the rebellion broke out, in the first year of the war, we passed a law for collecting a direct tax, and we assessed that tax upon all the rebellious States. According to the theory of the President that was all wrong, because taxation and representation did not go together. ... In my judgment it constitutes no sort of objection to this bill that certain States were unrepresented in Con-

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gress when it passed. They are not represented in consequence of their own fault, and for the reason that the President himself gives, because they are contumaciously engaged, if not in open war, in hostility to the Government. Some of the State organizations are controlled by men who are passing unconstitutional laws, as I have shown you to-­day; by men, some of whom went from the rebel congress to the gubernatorial chairs in their States, and some from the field where they had been in hostile array against your Government. ... The PRESIDENT pro tempore. The question is, Shall the bill pass, the objections of the President of the United States notwithstanding? and the question must be taken by yeas and nays by the provisions of the Constitution. The Secretary proceeded to call the roll. ... The PRESIDENT pro tempore. On this question the yeas are 30 and the nays are 18.* Two thirds of the members present not having voted for the bill, it is not a law. [Great applause in portions of the galleries and hisses in other portions, the disturbance being confined to the gentlemen’s galleries.] The Sergeant-­at-­Arms will clear the galleries and will arrest any person making a ­disturbance.

* [Voting against the override were Sens. Buckalew (D-­PA), Cowan (R-­PA), Davis (U/D-­KY), Dixon (R-­CT), Doolittle (R-­WI), Guthrie (D-­KY), Hendricks (D-­IN), Johnson (D-­MD), McDougall (D-­CA), Morgan (R-­NY), Nesmith (D-­OR), Norton (R-­MN), Riddle (D-­DE), Saulsbury (D-­DE), Stewart (R-­NV), Stockton (D-­NJ), Van Winkle (U-­WV), and Willey (R-­WV); there were 18 negative votes, with Foote (R-­V T) and Wright (D-­NJ) absent. See Cong. Globe, 39th Cong., 1st Sess., 943 (Feb. 20, 1866). In passing the original act, only Buckalew, Davis, Guthrie, Hendricks, Johnson, McDougall, Riddle, Saulsbury, Stockton, and Wright had opposed the bill (10 negative votes), with Cowan, Nesmith, and Willey absent. See Cong. Globe, 39th Cong., 1st Sess., 421 (Feb. 20, 1866). —Ed.]

40 US House, John Bingham Reports Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons, Response by Andrew Rogers February 26, 1866†

Mr. BINGHAM, from the select joint committee on reconstruction, reported back a joint resolution (H.R. No. 63) proposing an amendment to the Constitution of the United States. The joint resolution was read, as follows: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of the said Legislatures, shall be valid as part of said Constitution, namely: 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 privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.

Mr. BINGHAM. Mr. Speaker, this resolution, as the House is aware, has received its first and second readings. It comes back from the committee in the precise form in which it was originally reported. I do not propose at present to detain the House with any very extended remarks in support of it. I ask, however, the attention of the House to the fact that the amendment proposed stands in the very words of the Constitution of the United States as it came to us from the hands of its

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† Cong. Globe, 39th Cong., 1st Sess., 1033–35 (Feb. 26, 1866). [Major newspapers reported Bingham’s speech of February 26. See New York Times, Feb. 27, 1866, 8; New York Herald, Feb. 27, 1866, 1. —Ed.]

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illustrious framers. Every word of the proposed amendment is to-­day in the Constitution of our country, save the words conferring the express grant of power upon the Congress of the United States. The residue of the resolution, as the House will see by a reference to the Constitution, is the language of the second section of the fourth article, and of a portion of the fifth amendment adopted by the first Congress in 1789, and made part of the Constitution of the country. The language of the second section of the fourth article is—

judgment of the House, that it is impossible for mortal man to frame a formula of words more obligatory than those already in that instrument, enjoining this great duty upon the several States and the several officers of every State in the Union. And, sir, it is equally clear by every construction of the Constitution, its contemporaneous construction, its continued construction, legislative, executive, and judicial, that these great provisions of the Constitution, this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States. The House knows, sir, the country knows, the civilized world knows, that the legislative, executive, and judicial officers of eleven States within this Union within the last five years, in utter disregard of these injunctions of your Constitution, in utter disregard of that official oath which the Constitution required they should severally take and faithfully keep when they entered upon the discharge of their respective duties, have violated in every sense of the word these provisions of the Constitution of the United States, the enforcement of which are absolutely essential to American nationality. By order, then, of the committee, sir, and for the purpose of giving to the whole people the care in future of the unity of the Government which constitutes us one people, and without which American nationality would cease to be, I propose the adoption of this amendment to the House, and through the House I press it upon the consideration of the loyal people of the whole country. I do not propose, Mr. Speaker, longer to detain the House with the consideration of this amendment, but submit it to the careful and dispassionate judgment of every gentleman in the House. The SPEAKER. Does the gentleman surrender the floor absolutely? Mr. BINGHAM. I yield to my colleague on the committee, the gentleman from New Jersey, [Mr. Rogers,] and I yield the floor absolutely for the present. Mr. CHANLER. I hope the gentleman from New Jersey will yield to me before he resumes his seat. Mr. ROGERS then addressed the House. [His remarks will be published in the Appendix.]

“The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.” The fifth article of the amendment provides that—

“No person shall be deprived of life, liberty, or property, without due process of law.”

Sir, it has been the want of the Republic that there was not an express grant of power in the Constitution to enable the whole people of every State, by congressional enactment, to enforce obedience to these requirements of the Constitution. Nothing can be plainer to thoughtful men than that if the grant of power had been originally conferred upon the Congress of the nation, and legislation had been upon your statute-­books to enforce these requirements of the Constitution in every State, that rebellion, which has scarred and blasted the land, would have been an impossibility. I ask the attention of the House to the further consideration that the proposed amendment does not impose upon any State of the Union, or any citizen of any State of the Union, any obligation which is not now enjoined upon them by the very letter of the Constitution. I need not remind gentlemen here that the Constitution, as originally framed, and as adopted by the whole people of this country, provides that— “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.”

Could words be stronger, could words be more forceful, to enjoin upon every officer of every State the obligation to obey these great provisions of the Constitution, in their letter and their spirit? I submit to the

Mr. ROGERS said:* Mr. Speaker: I had hoped, after what has transpired

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* Cong. Globe, 39th Cong., 1st Sess., Appendix, 133 (Feb. 26, 1866).

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in the last few days, that the time had come when the Constitution of the United States would be secure from invasion by Congress. When I heard the words of the President of the United States in commendation of that sacred instrument, and as I rejoiced at the course pursued by conservative men on the other side of the House who are determined to sustain that instrument as it was given to us by our fathers, I had good reason to believe there would be no other amendments to it proposed by this body or the Senate. . . . I do think, notwithstanding the position which has been assumed by the eloquent and learned gentleman from Ohio [Mr. Bingham] who reported this resolution, that no resolution proposing an amendment to the Constitution of the United States had been offered to this Congress more dangerous to the liberties of the people and the foundations of this Government than the pending resolution. When sifted from top to bottom it will be found to be the embodiment of centralization and the disfranchisement of the States of those sacred and immutable State rights which were reserved to them by the consent of our fathers in our organic law. When the gentleman says the proposed amendment is intended to authorize no rights except those already embodied in the Constitution, I give him the plain and emphatic answer—if the Constitution provides the requirements contained in this amendment, why, in this time of excitement and public clamor, should we attempt to again ingraft upon it what is already in it? Mr. BINGHAM. The gentleman totally misconstrues what I have said. Mr. ROGERS. Wait until I have finished the point I have commenced. I say that the gentleman takes the position that there is nothing in this proposed amendment with regard to privileges and immunities of citizens of the several States attempted to be ingrafted in the instrument, except those which already exist in it. If those rights already exist in the organic law of the land, I ask him, what is the necessity of so amending the Constitution as to authorize Congress to carry into effect a plain provision which now, according to his views, inheres in the very organic law itself ? I know what the gentleman will attempt to say in answer to that position: that because the Constitution authorizes Congress to carry the powers conferred by it into effect, privileges and immunities are not considered within the meaning of powers, and therefore Congress has no right to carry into effect what the Constitution itself intended when it provided that citizens of

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each State should have all privileges and immunities of citizens in the several States. Now, sir, the answer to that argument is simply this: that when the Constitution was framed and ratified, its makers did not intend to lodge in the Congress of the United States any power to override a State and settle by congressional legislation the rights, privileges, and immunities of citizens in the several States. That matter was left entirely for the courts, to enforce the privileges and immunities of the citizens under that clause of the organic law. ... But this proposed amendment goes much further than the Constitution goes in the language which it uses with regard to the privileges and immunities of citizens in the several States. It proposes so to amend it that all persons in the several States shall by act of Congress have equal protection in regard to life, liberty, and property. If the bill to protect all persons in the United States in their civil rights and furnish the means of their vindication, which has just passed the Senate by almost the entire vote of the Republican party be constitutional, what, I ask, is the use of this proposed amendment? What is the use of authorizing Congress to do more than Congress has already done, so far as one branch is concerned, in passing a bill to guaranty civil rights and immunities to the people of the United States without distinction of race or color? If it is necessary now to amend the Constitution of the United States in the manner in which the learned gentleman who reported this amendment proclaims, then the vote of the Senate of the United States in passing that bill guarantying civil rights to all without regard to race or color was an attempt to project legislation that was manifestly unconstitutional, and which this proposed amendment is to make legal. ... Who gave the Senate the constitutional power to pass that bill guarantying equal rights to all, if it is necessary to amend the organic law in the manner proposed by this joint resolution? This is but another attempt to consolidate the power of the States in the Federal Government. It is another step to an imperial despotism. . . . Now, it is claimed by gentlemen upon the other side of the house that negroes are citizens of the United States. Suppose that in the state of New Jersey negroes are citizens, as they are claimed to be by the other side of the House, and they change their residence to the State of South Carolina, if this amendment be passed Congress

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can pass under it a law compelling South Carolina to grant to negroes every right accorded to white people there; and as white men there have the right to marry white women, negroes, under this amendment, would be entitled to the same right; and thus miscegenation and mixture of the races could be authorized in any State, as all citizens under this amendment are entitled to the same privileges and immunities, and the same protection in life, liberty, and property. ... Now, sir, the words “privileges and immunities” in the Constitution of the United States have been construed by the courts of the several States to mean privileges and immunities in a limited extent. It was so expressly decided in Massachusetts by Chief Justice Parker, one of the ablest judges who ever sat upon the bench in the United States. Those words, as now contained in the Constitution of the United States, were used in a qualified sense, and subject to the local control, dominion, and the sovereignty of the States. But this act of Congress proposes to amend the Constitution so as to take away the rights of the States with regard to the life, liberty, and property of the people, so as to enable and empower Congress to pass laws compelling the abrogation of all the statutes of the States which makes a distinction, for instance, between a crime committed by a white man and the crime committed by a black man, or allow white people privileges, immunities, or property not allowed to a black man. ... In the State of Pennsylvania there are laws which make a distinction with regard to the schooling of white children and the schooling of black children. It is provided that certain schools shall be designated and set apart for white children, and certain other schools designated and set apart for black children. Under this amendment, Congress would have power to compel the state to provide for white children and black children to attend the same school, upon the principle that all the people in the several States shall have equal protection in all the rights of life, liberty, and property, and all the privileges and immunities of citizens in the several States. ... Let us see what Chief Justice Parker says upon this subject of privileges and immunities of citizens of the several States, as already incorporated in the organic law of this country. He says, in 6 Pickering, pages 92 and 93, in the case of Abbot vs. Bailey:

“The constitutional provision referred to is necessarily limited and qualified; for it cannot be pretended that a citizen of Rhode Island coming into this State to live is ipso facto entitled to the full privileges of the citizen if any term of residence is prescribed as preliminary to the exercise of political or municipal rights. The several States then remain sovereign for some purposes, and foreign to each other, as before the adoption of the Constitution of the United States; and especially in regard to the administration of justice, and in the regulation of property and of estates, the laws of marriage and divorce, and the protection of the persons of those who live under their jurisdiction.”

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Does this amendment propose to leave the several states foreign to each other as regards the regulation of property and of estates, the laws of marriage and divorce, and the protection of the power of those live under their jurisdiction? No, sir; it proposes to take away all those rights of a State, and under this broad principle of equality which during the last five years has been proclaimed throughout the land to empower the Federal Government to exercise an absolute, despotic, uncontrollable power of entering the domain of the States and saying to them, “Your State laws must be repealed wherever they do not give to the colored population of the country the same rights and privileges to which your white citizens are entitled.” I will not vote for any amendment to the organic law that is to affect the eleven southern States as long as those States are denied representation. ... Sir, I defy any man on the other side of the house to name to me any right of the citizen which is not included in the words “life, liberty, property, privileges, and immunities,” unless it should be the right of suffrage; and that has been decided by the circuit court of the United States in Corfield vs. Coryell, 4 Washington’s Circuit Court Reports, pages 380 and 381, to be included in the words “privileges and immunities;” and that “privileges and immunities” are so broad as even to include the right of suffrage. I will not affirm that that position is correct, nor will I deny it; but if it be correct, as that high court has solemnly decided, it is easy to perceive why our fathers refused to authorize Congress to legislate on this subject by granting no power to it to legislate upon the guarantees of the organic law, and confining its legislation to the powers granted. That clause in the

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organic law which says that no person shall be deprived of life, liberty, or property without due process of law, as well as the other guarantees of the Constitution, have been repeatedly decided by the Supreme Court of the United States to apply only to cases affecting the Federal Government, and not to apply to such cases as are exercised by the States. For instance, if a state should condemn a man to death without due process of law, or take his property for public use without any compensation, the clauses of the Constitution of the United States would have no application to such cases; but if the Federal Government should do the same thing, then these clauses in the organic law would apply. This position no lawyer in this House will deny.

Mr. HIGBY. I differ from a great many members of this House, and I presume that I shall differ from a great many in authority as to the question of amending the Constitution of the United States. I do not believe in making amendments that are going by very slow degrees to a proper conclusion. Neither do I believe in making such amendments as will occasion a division in the public mind as to whether any improvement has been made or not. But an amendment that will give strength to the Government of the United States, an increased strength over what it may have now under the present Constitution, will meet with my hearty concurrence. I understand this joint resolution, should it become part of the Constitution of the United States, will only have the effect to give vitality and life to portions of the Constitution that probably were intended from the beginning to have life and vitality, but which have received such a construction that they have been entirely ignored and have become as dead matter in that instrument. When we read this proposed amendment we will think it already embraced in the Constitution, but so scattered through different portions of it that it has no life or energy. But by condensing it, as we find it in this joint resolution, should it become a portion of the Constitution, it will then become operative and beneficial. Mr. Speaker, the article proposed, the adoption of which by two thirds of this House and of the other branch of Congress would be only a preliminary step to its becoming a part of the Constitution, is in these words:

41 US House, Debate, Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons February 27, 1866*

The House then resumed the consideration of the following joint resolution (H.R. No. 63) proposing an amendment to the Constitution of the United States:

The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States; which, when ratified by three fourths of the said Legislatures, shall be valid as part of said Constitution, namely: 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 privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property. * Cong. Globe, 39th Cong., 1st Sess., 1054–66 (Feb. 27, 1866).

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Well, sir, I find in the beginning of the eighth section of the first article the words, “Congress shall have power;” and in the latter portion of the same section are the words, “to make all laws which shall be necessary and proper.” “To secure to” are new words embraced in this amendment. “The citizens of each State,” and “all privileges and immunities of citizens in the several States,” are words which are found in the Constitution in another place. The fifth article of the amendments of our present Constitution provides that—

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“No person shall be deprived of life, liberty, or property without due process of law.”

It does seem to me that the tenor and effect of the amendment proposed here by this committee is to bring about a more radical change in the system of this Government, to institute a wider departure from the theory upon which our fathers formed it than ever before was proposed in any legislative or constitutional assembly. Listening to the remarks of the distinguished member of the committee [Mr. Bingham] who reported this joint resolution to the House, one would be led to think that this amendment was a subject of the most trivial consequence. He tells us, and tells us with an air of gravity that I could not but admire, that the words of the resolution are all in the Constitution as it stands, with the single exception of the power given to Congress to legislate. A very important exception, it strikes me, but one to which the gentleman seems to attach very little weight. My friend from California [Mr. Higby,] who addressed the House this morning in support of this resolution of the committee, (and I speak of that gentleman with the most entire respect and friendship,) went a little further, and succeeded in showing that the exception of the honorable gentleman from Ohio [Mr. Bingham] was unnecessary; for, said the gentleman from California, the words of this joint resolution are all in the Constitution as it now stands. He turns to the eighth section of the first article, and in the first clause of it he finds the words “the Congress shall have power.” He turns to the last clause of the same section, and there he finds the words “to make all laws which shall be necessary and proper.” He turns to the second section of the fourth article, and there finds the words:

The language of this proposed amendment is very little different. It provides that Congress shall secure— To all persons in the several States equal protection in the rights of life, liberty, and property.

Thus, sir, we find by an examination of the Constitution that it was intended to provide in these separate portions precisely what will be provided by this article, should it become a portion of the Constitution. Why, sir, what force or value is there in article four, section one, of the Constitution, in these words: “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”

If that provision had been enforced heretofore, how different would have been the condition of the various States of this Union. Had that provision been enforced, a citizen of New York would have been treated as a citizen in the State of South Carolina; a citizen of Massachusetts would have been regarded as a citizen in the State of Mississippi or Louisiana. The man who was a citizen in one State would have been considered and respected as a citizen in every other State of the Union. But, sir, that provision of the Constitution has been trampled under foot; it has been considered in certain States of this Union as nugatory and of no force whatever. The intent of this amendment is to give force and effect and vitality to that provision of the Constitution which has been regarded heretofore as nugatory and powerless. ... Mr. HALE. Mr. Speaker, it is with great hesitation I rise to address the House to-­day, for the reason especially that in the brief time allotted for the purpose, I feel that I have been entirely unable to prepare myself as one should be prepared to discuss a subject so important, a subject so serious in its bearing and effect, and one so much requiring cautious and deliberate action on the part of this House, as the one now under consideration. But I feel compelled, though I must do it crudely, imperfectly, to attempt to assign some of the reasons that must control my vote against this proposed amendment to the Constitution of the United States. ...

“The citizens of each State shall be entitled to all privileges and immunities of citizens of the several States.”

He turns to the fifth article of the amendments to the Constitution, and there finds the words: “No persons shall be deprived of life, liberty, or property without due process of law.”

Thus, he says, you have included in the Constitution as it stands all the words of the amendment proposed by the committee. The ingenuity of the argument was admirable. I never heard it paralleled except in the case of the gentleman who undertook to justify suicide from the Scripture by quoting two texts: “Judas went and hanged himself;” “Go thou and do likewise.” Now, Mr. Speaker, what is the theory of our Constitu104

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tion? I will not undertake to elaborate this matter too far; but briefly, imperfectly, and within very scanty limits, let me attempt an answer to this question. In general terms, is it not that all powers relating to the existence and sovereignty of the nation, powers relating to our foreign relations, powers relating to peace and war, to the enforcement of the law of nations and international law, are the powers given to Congress and to the Federal Government by the Constitution, while all powers having reference to the relation of the individual to the municipal government, the powers of local jurisdiction and legislation, are in general reserved to the States? What is the effect of the amendment which the committee on reconstruction propose for the sanction of this House and the States of the Union? I submit that it is in effect a provision under which all State legislation, in its codes of civil and criminal jurisprudence and procedure, affecting the individual citizen, may be overridden, may be repealed or abolished, and the law of Congress established instead. I maintain that in this respect it is an utter departure from every principle ever dreamed of by the men who framed our Constitution. Mr. STEVENS. Does the gentleman mean to say that, under this provision, Congress could interfere in any case where the legislation of a State was equal, impartial to all? Or is it not simply to provide that, where any State makes a distinction in the same law between different classes of individuals, Congress shall have power to correct such discrimination and inequality? Does this proposition mean anything more than that? Mr. HALE. I will answer the gentleman. In my judgment it does go much further than the remarks of the gentleman would imply; but even if it goes no further than that—and I will discuss this point more fully before I conclude—it is still open to the same objection, that it proposes an entire departure from the theory of the Federal Government in meddling with these matters of State jurisdiction at all. ... It is not a mere provision that when the States undertake to give protection which is unequal Congress may equalize it; it is a grant of power in general terms— a grant of the right to legislate for the protection of life, liberty, and property, simply qualified with the condition that it shall be equal legislation. That is my construction of the proposition as it stands here. It may differ from that of other gentlemen. ...

Mr. Speaker, let me go a little further here. If it be true that the construction of this amendment, which I understand to be claimed by the gentleman from Ohio, [Mr. Bingham,] who introduced it, and which I infer from his question is claimed by the gentleman from Pennsylvania, [Mr. Stevens;] if it be true that that is the true construction of this article, is it not even then introducing a power never before intended to be conferred upon Congress? For we all know it is true that probably every State in this Union fails to give equal protection to all persons within its borders in the rights of life, liberty, and property. It may be a fault in the States that they do not do it. A reformation may be desirable, but by the doctrines of the school of politics in which I have been taught to regard was the best school of political rights and duties in this Union, reforms of this character should come from the States, and not be forced upon them by the centralized power of the Federal Government. Take a single case by way of illustration, and I take simply to illustrate the point, without expressing any opinion whatever on the desirability or undesirability of a change in regard to it. Take the case of the rights of married women; did any one ever assume that Congress was to be invested with the power to legislate on that subject, and to say that married women, in regard to their rights of property, should stand on the same footing with men and unmarried women? There is not a State in the Union where disability of married women in relation to the rights of property does not to a greater of less extent still exist. Many of the States have taken steps for the partial abolition of that distinction in years past, some to a greater extent and others to a less. But I apprehend there is not to-­day a State in the Union where there is not a distinction between the rights of married women, as to property, and the rights of femmes sole and men. Mr. STEVENS. If I do not interrupt the gentleman I will say a word. When a distinction is made between two married people or two femmes sole, then it is unequal legislation; but where all of the same class are dealt with in the same way then there is no pretense of inequality. Mr. HALE. The gentleman will pardon me; his argument seems to me to be more specious than sound. The language of the section under consideration gives to all persons equal protection. Now, if that means you shall extend to one married woman the same protection you extend to another, and not the same you extend to un105

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married women or men, then by parity of reasoning it will be sufficient if you extend to one negro the same rights you do to another, but not those you extend to a white man. I think, if the gentleman from Pennsylvania claims that the resolution only intends that all of a certain class shall have equal protection, such class legislation may certainly as easily satisfy the requirements of this resolution in the case of the negro as in the case of the married woman. The line of distinction, is, I take it, quite as broadly marked between negroes and white men as between married and unmarried women. It was not within the purview of the original Constitution to grant the power of legislation to Congress on subjects of this character. Mr. Speaker, the powers conferred on Congress are all contained in the eighth section of the first article of the Constitution. I ask the House to look at these provisions, their nature, their general scope, the accuracy, precision, and care with which they are defined, and compare them with what I cannot but characterize, with all my respect and deference for the committee on reconstruction, as the extremely vague, loose, and indefinite provisions of the proposed amendment. ... Go through that section* carefully and you will find no general power granted to Congress to legislate upon matters of a municipal nature, or matters relating to the social or civil rights of citizens of the States, but everywhere it points most strictly and carefully to the legitimate objects for which the national Government was created. ... Again, the gentleman from Ohio [Mr. Bingham] refers us to the fifth article of the amendments to the Constitution as the basis of the present resolution, and as the source from which he has taken substantially the language of that clause of the proposed amendment I am considering. Now, what are these amendments to the Constitution, numbered from one to ten, one of which is the fifth article in question? What is the nature and object of these articles? They do not contain, from beginning to end, a grant of power anywhere. On the contrary, they are all restrictions of power. They constitute the bill of rights, a bill of rights for the protection of the citizen, and defining and limiting the power of Federal and State legislation. They are not matters upon which legislation can be based. They begin with the * [That is, the eighth section. —Ed.]

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proposition that “Congress shall make no law,” &c.; and if I were to follow the example of my friend from California, [Mr. Higby,] I might perhaps claim that here was a sufficient prohibition against the legislation sought to be provided for by this amendment. Throughout they are prohibitions against legislation. Throughout they provide safeguards to be enforced by the courts, and not to be exercised by the Legislature. And they provide in this noble fifth article, among others—provisions which at this time especially deserve the attention of the American people—that no person shall be deprived of life, liberty, or property, without due process of law. Mr. BINGHAM. Will the gentleman refer to the second section of the fourth article? Mr. HALE. The gentleman from Ohio refers me to the second section of the fourth article. I omit the consideration of that section for the reason that my argument is directed exclusively to the consideration of the final clause of the amendment proposed, which is founded on the fifth article of the amendments, without referring at all to the other clause, founded on the section to which the gentleman from Ohio refers me. The last-­ named section is therefore outside the range of my remarks on this occasion. Now, I suggest to gentlemen: is it wise at this time, after the experience we have had of the working of this Constitution, with all the reverence in which we have been accustomed to hold it, after having it tested as it has been by this mighty rebellion—through peace, through foreign war, through civil war, having found its strength, its elasticity, its sufficiency for all circumstances and all trials—is it wise for us to alter it thus rashly, to alter it in its most vital and essential principle, to amend it by substituting a new principle for the very soul that animates the system created by it? Mr. BINGHAM. The gentleman will allow me to ask him to point to a single decision. The gentleman says that the sufficiency of the Constitution has been tested and found in the past. I ask him now if he knows of a single decision in which the sufficiency of the Constitution to secure to a party aggrieved in his person within a State the right to protection by the prosecution of a suit, which by the organic law of the State was denied to him, has ever been affirmed, either by Federal statute or Federal decision, or whether the nation has not been dumb in the presence of the organic act of a State which declares that eight hundred thousand natural-­ born citizens of the United States shall be denied the right to prosecute a suit in their courts, either for the vindi-

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cation of a right or the redress of a wrong? Where is the decision? I want an answer. Mr. HALE. The gentleman will always get an answer when he asks me a question. It is never necessary for him to accompany his question with a warning. I have not been able to prepare a brief for this argument, and therefore I cannot refer the gentleman to any case. As I never claim to be a very learned constitutional lawyer I have no hesitation in making the admission that I do not know of a case where it has ever been decided that the United States Constitution is sufficient for the protection of the liberties of the citizen. But still I have, somehow or other, gone along with the impression that there is that sort of protection thrown over us in some way, whether with or without the sanction of a judicial decision that we are so protected. Of course, I may be entirely mistaken in all this, but I have certainly somehow had that impression. Mr. ELDRIDGE. I wish to know if the gentleman from Ohio [Mr. Bingham] has found or heard of a case in which the Constitution of the United States has been pronounced to be insufficient? Mr. HALE. I would rather leave these gentlemen to answer one another at some other time, if it will answer their purposes as well. Mr. BINGHAM. I beg leave to say that I am ready to answer the gentleman now, and to produce such a decision, whether the gentleman from New York is or is not. Mr. HALE. This is no doubt a very interesting side issue; but the gentlemen will pardon me if I prefer to go on with my own speech now, and leave them to make theirs in proper order. I insist that the American people have not yet found that their State governments are insufficient to protect the rights and liberties of the citizen. ... It is claimed that this constitutional amendment is aimed simply and purely toward the protection of “American citizens of African descent” in the States lately in rebellion. I understand that to be the whole intended practical effect of the amendment. Mr. BINGHAM. It is due to the committee that I should say that it is proposed as well to protect the thousands and tens of thousands and hundreds of thousands of loyal white citizens of the United States whose property, by State legislation, has been wrested from them under confiscation, and protect them also against banishment. Mr. HALE. I trust that when the gentleman comes

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to reply, he will give me as much of his time as he takes of mine. As he has the reply, I do not think he ought to interject his remarks into my speech. I will modify my statement and say that this amendment is intended to apply solely to the eleven States lately in rebellion, so far as any practical benefit to be derived from it is concerned. The gentleman from Ohio can correct me if I am again in error. Mr. BINGHAM. It is to apply to other States also that have in their constitutions and laws to-­day provisions in direct violation of every principle of our Constitution. Mr. ROGERS. I suppose the gentleman refers to the State of Indiana? Mr. BINGHAM. I do not know; it may be so. It applies unquestionably to the State of Oregon. Mr. HALE. Then I will again modify my correction and say that it is intended to apply to every State which, in the judgment of the honorable member who introduced this measure, has failed to provide equal protection to life, liberty, and property. And here we come to the very thing for which I denounce this proposition, that it takes away from these States the right to determine for themselves what their institutions shall be. Oregon has not been contumacious towards this Union; Oregon has not been in rebellion; the gentleman has no charge to bring against her, except that she has incorporated into her constitution and laws provisions that to him are distasteful, and which he thinks unjust. I submit that that should never be a question for us to pass upon here in Congress. ... If he claims that those provisions of the constitution or the laws of Oregon are inconsistent with the bill of rights contained in the Constitution of the United States, then I answer that his remedy is perfect and ample, and the courts may be appealed to to vindicate the rights of the citizens, both under civil and criminal procedure. Their powers are ample; it never was questioned, it never could be questioned, that the decrees of the courts, in all the States at least where slavery did not exist, have been thoroughly and sufficiently enforced. ... Now I put it to the gentleman [Mr. Bingham] if at a single stride we take such a step as this, if we confer upon the Federal Congress powers, in such vague and general language as this amendment contains, to legislate upon all matters pertaining to the life, liberty, and property of all the inhabitants of the several States, I put it to the gentleman, whom I know sometimes at least

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to be disposed to criticise this habit of liberal construction, to state where he apprehends that Congress and the courts will stop in the powers they may arrogate to themselves under this proposed amendment. It has been settled judicially, as well as legislatively, that the words “necessary and proper,” which are found in this amendment, as well as in the original Constitution, by no means imply indispensable necessity; that the legislation “necessary” for carrying into execution powers is not the legislation without which the thing cannot be done. But it has been expressly settled that it means simply “needful,” “requisite,” “conducive to,” and under that settled interpretation of his language I ask the gentleman where he will draw the line as to the powers which Congress may exercise as the “necessary and proper” legislation to attain these very general results? It seems to me, sir, that this is, of all kinds of legislation, the most dangerous. I believe that the tendency in this country has been from the first too much towards the accumulation and strengthening of central Federal power. During the last five years of war and rebellion, that tendency has necessarily and inevitably increased. It must always happen that when the life of the nation is menaced the strength and extent of central power will be augmented. In such emergencies the nation arrogates to itself powers which it never thought of possessing or exercising in time of peace. We have become habituated to yielding to such things as matters of inexorable necessity. I submit to gentlemen whether it is not now time that we should check that current. I believe that this is, of all times, the last when we should undertake a radical amendment of the Constitution, so immensely extending the power of the Federal Government, and derogating from the power of the States. Sir, I concede every disposition and every wish on the part of the gentleman to protect the liberty of the citizen—the humblest as well as the highest—the negro, the late slave, as well as others. In every such desire on his part I most fully and cordially concur. But let me warn gentlemen that there are other liberties as important as the liberties of the individual citizen, and those are the liberties and rights of the States. I believe that whatever most clearly distinguishes our Government from other Governments in the extent of individual freedom and the protection of personal rights we owe to our decentralized system, to the fact that the functions of government with which the citizen has immediate relation are brought home to him, that he operates immediately

upon them and they immediately upon him, instead of there being that long chain of communication which in a centralized government must extend from the fountain of power, whether despotic or republican, whether executive or legislative, to the citizen. I appeal to gentlemen whether we ought not now to seek to strengthen the liberties of the States and the rights of the States as well as the liberties of the citizen. It is true that this doctrine of State rights, like any other doctrine carried beyond its due measure, may, when pushed to extremes, generate evil. It is true that the orthodox, sound, fundamental doctrine of State rights may, by progressing beyond the proper line, become the heretical and dangerous doctrine of State sovereignty. Thank God, sir, that heresy has been put down. Let us see that a more dangerous heresy be not allowed to rise in its place.

42 US House, Debate Continued, “Privileges and Immunities” Amendment, Speeches of John Bingham and Giles Hotchkiss, Vote to Postpone Consideration February 28, 1866*

The House then resumed the consideration of the following joint resolution (H.R. No. 63) proposing an amendment to the Constitution of the United States: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of the said Legislatures, shall be valid as part of said Constitution, namely: Article —. The Congress shall have power to make all laws which shall be necessary and proper

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* Cong. Globe, 39th Cong., 1st Sess., 1083, 1087–95 (Feb. 28, 1866).

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to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.

Mr. DAVIS. ... An amendment which gives in terms to Congress the power to make all laws to secure to every citizen in the several States equal protection to life, liberty, and property, is a grant for original legislation by Congress. If Congress may give equal protection to all as to property, it is itself the judge of the measure of that protection. Its legislation may be universal. It may enlarge protection, it may circumscribe it and limit it, if only it make it equal. 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 organizations, and which cannot be taken from the States without a radical and fatal change in their relations. ... Mr. WOODBRIDGE. ... What is the object of the proposed amendment? It merely gives the power to Congress to enact those laws which will give to a citizen of the United States the natural rights which necessarily pertain to citizenship. It is intended to enable Congress by its enactments when necessary to give to a citizen of the United States, in whatever State he may be, those privileges and immunities which are guarantied to him under the Constitution of the United States. It is intended to enable Congress to give to all citizens the inalienable rights of life and liberty, and to every citizen in whatever State he may be that protection to his property which is extended to the other citizens of the State. Sir, is there anything anti-­republican in this? Is there anything wrong in this? Is there anything which interferes with the sovereign power of a State that adheres to a republican form of government? Is there not rather in this a tendency to keep the States within their orbits, and by what the gentleman from New Jersey [Mr. Rogers] would call “the organic law,” insure and secure forever to every citizen of the United States the privileges and blessings of a republican form of government? There is nothing more, there is nothing less, in this proposition. ...

Mr. BINGHAM.* Mr. Speaker, I approach the discussion of this subject, aware that it will be utterly impossible for me, within the time allotted me by the rules of the House, to do justice to the proposition reported by the joint committee. I think, sir, that the honorable gentleman from Vermont [Mr. Woodbridge] has uttered words that ought to be considered and accepted by gentlemen of the House, when he says that the action of this Congress in its effect upon the future prosperity of the country will be felt by generations of men after we shall all have paid the debt of nature. I believe, Mr. Speaker, as I have had occasion to say more than once, that the people of the United States have intrusted to the present Congress in some sense the care of the Republic, not only for the present, but for all the hereafter. Your committee, sir, would not have sent to this House for its consideration this proposition but for the conviction that its adoption by Congress and its ratification by the people of the United States is essential to the safety of all the people of every State. I repel the suggestion made here in the heat of debate, that the committee or any of its members who favor this proposition seek in any form to mar the Constitution of the country, or take away from any State any right that belongs to it, or from any citizen of any State any right that belongs to him under that Constitution. The proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution to-­day. It “hath that extent—no more.” It is in these words: Joint resolution proposing an amendment to the Constitution of the United States. Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States; which, when ratified by three fourths of the said Legislatures, shall be valid as part of said Constitution, namely:

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* [Bingham’s speech of February 28, 1866, was published separately in pamphlet form. See John A. Bingham, Representative from Ohio, One Country, One Constitution, and One People: In Support of the Proposed Amendment to Enforce the Bill of Rights (Feb. 28, 1866) (pamphlet printed by the Congressional Globe). —Ed.]

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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 privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.

Gentlemen who seem to be very desirous (although it has very recently come to them) to stand well with the President of the United States, if they will look narrowly into the message which he addressed to this Congress at the opening of the session will find that the proposition pending is approved in that message. The President in the message tells this House and the country that “the American system rests on the assertion of the equal right of every man to life, liberty, and the pursuit of happiness.” But, sir, that statement rests upon higher authority than that of the President of the United States. It rests upon the authority of the whole people of the United States, speaking through their Constitution as it has come to us from the hands of the men who framed it. The words of that great instrument are: “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”

“No person shall be deprived of life, liberty, or property, without due process of law.”

What do gentlemen say to these provisions? “Oh, we favor that; we agree with the President that the basis of the American system is the right of every man to life, liberty, and the pursuit of happiness: we agree that the Constitution declares the right of every citizen of the United States to the enjoyment of all privileges and immunities of citizens in the several States, and of all persons to be protected in life, liberty, and property.” Gentlemen admit the force of the provisions in the bill of rights, that the citizens of the United States shall be entitled to all the privileges and immunities of citizens of the United States in the several States, and that no person shall be deprived of life, liberty, or property without due process of law; but they say, “We are opposed to its enforcement by act of Congress under an amended Constitution, as proposed.” That is the sum and substance of all the argument that we have heard on this subject. Why are gentlemen opposed to the enforcement of the bill of rights, as proposed? Because

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they aver it would interfere with the reserved rights of the States! Who ever before heard that any State had reserved to itself the right, under the Constitution of the United States, to withhold from any citizen of the United States within its limits, under any pretext whatever, any of the privileges of a citizen of the United States, or to impose upon him, no matter from what State he may have come, any burden contrary to that provision of the Constitution which declares that the citizen shall be entitled in the several States to all the immunities of a citizen of the United States? What does the word immunity in your Constitution mean? Exemption from unequal burdens. Ah! say gentlemen who oppose this amendment, we are not opposed to equal rights; we are not opposed to the bill of rights that all shall be protected alike in life, liberty, and property: we are only opposed to enforcing it by national authority, even by the consent of the loyal people of all the States. Mr. ROGERS. Will the gentleman yield to me? Mr. BINGHAM. The gentleman must excuse me. Mr. ROGERS. Only for a question. I only wish to know what you mean by “due process of law.” Mr. BINGHAM. I reply to the gentleman, the courts have settled that long ago, and the gentleman can go and read their decisions. Mr. HALE. Allow me to put a question. Mr. BINGHAM. Excuse me. ... We have the extraordinary argument of the gentleman from Pennsylvania, [Mr. Randall,] that however just the amendment may be we ought not to pass it in the absence of the Representatives of the eleven States lately in insurrection against the country. Mr. Speaker, when the gentleman comes to reflect upon that remark of his he will see by using it he casts an imputation upon the very men who framed the matchless Constitution of the country under which we are assembled here to-­ day. It was written in the Articles of Confederation that they “should be articles of perpetual Union” between the original thirteen States who were parties to it. It was written in the Constitution that, if adopted by nine States, it should become the Constitution for those nine States, the covenant of the Articles of Confederation to the contrary notwithstanding. It thence resulted that the Constitution did become the supreme law of some ten States, in the absence of assent thereto on the part of three, and in direct violation of the express covenant of the Confederation itself. And when the question was

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asked of one of the fathers of the Constitution, how can you break up the Confederation without the consent of all the States, and against the protest of some of them; how can you break the covenant “of perpetual Union” under the Articles of Confederation? he gave for answer, that the right of the people to self-­preservation justifies it; it rests upon the transcendent right of nature and nature’s God. That right is still in the people and has justified their action through all this trial. It is the inherent right of the people. It cannot be taken from them. It has survived the storms and tempests of this great conflict of arms. Hence, if the gentleman’s logic be true, that you cannot amend the Constitution without the assent of Representatives in Congress of the rebel States, you could not have passed any bill during all these four years of war, if it affected in any sense the interests of the eleven rebel States. In that objection the gentleman, like the gentleman who preceded him, is simply following the argument of the President, who has said something of that kind in his veto message of the Freedmen’s Bureau bill. We have, then, sir, the calmer and more deliberate utterance of the honorable gentleman from New York, [Mr. Hale.] He says that the Constitution does contemplate equality in the protection of the rights of life, liberty, and property in every State. He admits it does contemplate that the citizen of each State shall be entitled to all the privileges and immunities of citizens in the several States. It will be noticed, the gentleman takes care not to utter one single word in opposition to that part of the amendment which seeks the enforcement of the second section of the fourth article of the Constitution of the United States, but by his silence he gives his assent to it. But the gentleman reiterates the old cry of State rights, and says, “You are impairing State rights.” I would like to know, and when the gentleman comes to make another argument on this subject, I respectfully ask him to inform us whence he derives the authority for supposing, if he does so suppose, that any State has the right to deny to a citizen of any other State any of the privileges or immunities of a citizen of the United States. And if a State has not the right to do that, how can the right of a State be impaired by giving to the people of the United States by constitutional amendment the power by congressional enactment to enforce this provision of their Constitution? The gentleman did not utter a word against the equal right of all citizens of the United States in every State to all privileges and immunities of citizens, and I know

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any such denial by any State would be condemned by every sense of his nature. If a State has not the right to deny equal protection to any human being under the Constitution of this country in the rights of life, liberty, and property, how can State rights be impaired by penal prohibitions of such denial as proposed? But, says the gentleman, if you adopt this amendment you give to Congress the power to enforce all the rights of married women in the several States. I beg the gentleman’s pardon. He need not be alarmed at the condition of married women. Those rights which are universal and independent of all local State legislation belong, by the gift of God, to every woman, whether married or single. The rights of life and liberty are theirs whatever States may enact. But the gentleman’s concern is as to the right of property in married women. Although this word property has been in your bill of rights from the year 1789 until this hour, who ever heard it intimated that anybody could have property protected in any State until he owned or acquired property there according to its local law or according to the law of some other State which he may have carried thither? I undertake to say no one. As to real estate, every one knows that its acquisition and transmission under every interpretation ever given to the word property, as used in the Constitution of the country, are dependent exclusively upon the local law of the States, save under a direct grant of the United States. But suppose any person has acquired property not contrary to the laws of the State, but in accordance with its law, are they not to be equally protected in the enjoyment of it, or are they to be denied all protection? That is the question, and the whole question, so far as that part of the case is concerned. The gentleman seemed to think that all persons could have remedies for all violations of their rights of “life, liberty, and property” in the Federal courts. I ventured to ask him yesterday when any action of that sort was ever maintained in any of the Federal courts of the United States to redress the great wrong which has been practiced, and which is being practiced now in more States than one of the Union under the authority of State laws, denying to citizens therein equal protection or any protection in the rights of life, liberty, and property. Mr. HALE. Will the gentleman allow me to ask him a question? Mr. BINGHAM. No, sir; the gentleman will please excuse me.

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Mr. HALE. If he is relating what took place in the debate— Mr. BINGHAM. I am relating what I asked the gentleman yesterday. Mr. HALE. In the debate? Mr. BINGHAM. Yes, sir, in the debate. A gentleman on the other side interrupted me and wanted to know if I could cite a decision showing that the power of the Federal Government to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution had been denied. I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the necessity of adopting this amendment. Mr. Speaker, on this subject I refer the House and the country to a decision of the Supreme Court, to be found in 7 Peters, 247, in the case of Barron vs. The Mayor and City Council of Baltimore, involving the question whether the provisions of the fifth article of the amendments to the Constitution are binding upon the State of Maryland and to be enforced in the Federal courts. The Chief Justice says:

What have gentlemen to say to that? Sir, I stand relieved to-­day from entering into any extended argument in answer to these decisions of your courts, that although as ruled the existing amendments are not applicable to and do not bind the States, they are nevertheless to be enforced and observed in States by the grand utterance of that immortal man, who, while he lived, stood alone in intellectual power among the living men of his country, and now that he is dead, sleeps alone in his honored tomb by the sounding sea. I refer to that grand argument never yet answered while human language shall be spoken by living man, wherein Mr. Webster says:

I read one further decision on this subject—the case of the Lessee of Livingston vs. Moore and others, 7 Peters, page 551. The court, in delivering its opinion, says:

Why, I ask, should not the “injunctions and prohibitions,” addressed by the people in the Constitution to the States and the Legislatures of States, be enforced by the people through the proposed amendment? By the decisions read the people are without remedy. It is admitted in the argument of Mr. Webster, just cited, that the State Legislatures may by direct violations of their duty and oaths avoid the requirements of the Constitution, and thereby do an act which would break up any government. Those oaths have been disregarded; those require-

“There is no language in the Constitution applicable to a confederation of States. If the States be parties, as States, what are their rights, and what their respective covenants and stipulations expressed? The states engage for nothing, they promise nothing. In the Articles of Confederation, they did make promises, and did enter into engagements, and did plight the faith of each State for their fulfillment; but in the Constitution there is nothing of that kind. The reason is, that in the Constitution it is the people who speak, and not the States.” * * * * “They address themselves to the States and to the Legislatures of States in the language of injunction and prohibition. The Constitution utters its behests in the name and by authority of the people, and it does not exact from States any plighted public faith to maintain it. On the contrary, it makes its own preservation depend on individual duty and individual obligation.” * * * * “It lays its hand on individual duty and individual conscience. It incapacitates any man to sit in the Legislature of a State who shall not first have taken his solemn oath to support the Constitution of the United States. From the obligation of this no State power can discharge him.”—3 Webster’s Works, p. 471.

“The people of the United States framed such a Government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this Government were to be exercised by itself; and the limitations of power, if expressed in general terms, are naturally, and we think necessarily, applicable to the Government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments, framed by different persons and for different purposes. “If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States.”

“As to the amendments of the Constitution of the United States, they must be put out of the case, since it is now settled that those amendments do not extend to the States; and this observation disposes of the next exception, which relies on the seventh article of those amendments.”

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ments of our Constitution have been broken; they are disregarded to-­day in Oregon; they are disregarded to-­ day, and have been disregarded for the last five, ten, or twenty years in every one of the eleven States recently in insurrection. The question is, simply, whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of the oaths enjoined upon them by their Constitution? That is the question, and the whole question. The adoption of the proposed amendment will take from the States no rights that belong to the States. They elect their Legislatures; they enact their laws for the punishment of crimes against life, liberty, or property; but in the event of the adoption of this amendment, if they conspire together to enact laws refusing equal protection to life, liberty, or property, the Congress is thereby vested with power to hold them to answer before the bar of the national courts for the violation of their oaths and of the rights of their fellow men. Why should it not be so? That is the question. Why should it not be so? Is the bill of rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced. Mr. Speaker, it appears to me that this very provision of the bill of rights brought in question this day, upon this trial before the House, more than any other provision of the Constitution, makes that unity of government which constitutes us one people, by which and through which American nationality came to be, and only by the enforcement of which can American nationality continue to be. The imperishable words of Washington ought to be in the minds of all of us touching this great question whether the unity of the Government shall be enforced hereafter by just penal enactments when the Legislatures of States refuse to do their duty or keep inviolate their oath. Washington, speaking to you and to me and to the millions who are to come after us, says: “The unity of the Government which constitutes you one people is a main pillar in the edifice of your real independence, the support of your tranquillity at home, your peace abroad, of your safety, of your prosperity, of that very liberty which you so highly prize.”

Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privi-

leges and immunities of citizens in the several States? Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life, and liberty and property? Why, sir, what an anomaly is presented to-­day to the world! We have the power to vindicate the personal liberty and all the personal rights of the citizen on the remotest sea, under the frowning batteries of the remotest tyranny on this earth, while we have not the power in time of peace to enforce the citizens’ rights to life, liberty, and property within the limits of South Carolina after her State government shall be recognized and her constitutional relations restored. ... As the whole Constitution was to be the supreme law in every State, it therefore results that the citizens of each State, being citizens of the United States, should be entitled to all the privileges and immunities of citizens of the United States in every State, and all persons, now that slavery has forever perished, should be entitled to equal protection in the rights of life, liberty, and property. As further security for the enforcement of the Constitution, and especially of this sacred bill of rights, to all the citizens and all the people of the United States, it is further provided that the members of the several State Legislatures and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution. The oath, the most solemn compact which man can make with his Maker, was to bind the State Legislatures, executive officers, and judges to sacredly respect the Constitution and all the rights secured by it. And yet there is still another provision lest a State Legislature, with the approval of a State Executive, should, in disregard of their oath, invade the rights of any citizen or person by unjust legislation, violative alike of the Constitution and the rights secured by it, which is very significant and not to be overlooked, which is, “And the judges of every State shall be bound by the Constitution of the United States, anything in the constitution and laws of any State to the contrary notwithstanding.”

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With these provisions in the Constitution for the enforcement in every State of its requirements, is it surprising that the framers of the Constitution omitted

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to insert an express grant of power in Congress to enforce by penal enactment these great canons of the supreme law, securing to all the citizens in every State all the privileges and immunities of citizens, and to all the people all the sacred rights of person—those rights dear to freemen and formidable only to tyrants—and of which the fathers of the Republic spoke, after God had given them the victory, in that memorable address in which they declared, “Let it be remembered that the rights for which America has contended were the rights of human nature?” Is it surprising that essential as they held the full security to all citizens of all the privileges and immunities of citizens, and to all the people the sacred rights of person, that having proclaimed them they left their lawful enforcement to each of the States, under the solemn obligation resting upon every State officer to regard, respect, and obey the constitutional injunction? What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day? Nothing at all. And I am perfectly confident that that grant of power would have been there but for the fact that its insertion in the Constitution would have been utterly incompatible with the existence of slavery in any State; for although slaves might not have been admitted to be citizens they must have been admitted to be persons. That is the only reason why it was not there. There was a fetter upon the conscience of the nation; the people could not put it there and permit slavery in any State thereafter. Thank God, that fetter has been broken; it has turned to dust before the breath of the people, speaking as the voice of God and solemnly ordaining that slavery is forever prohibited everywhere within the Republic except as punishment for crime on due conviction. Even now for crimes men may be enslaved in States, notwithstanding the new amendment. As slaves were not protected by the Constitution, there might be some color of excuse for the slave States in their disregard for the requirement of the bill of rights as to slaves and refusing them protection in life or property; though, in my judgment, there could be no possible apology for reducing men made like themselves, in the image of God, to a level with the brutes of the field, and condemning them to toil without reward, to live without knowledge, and die without hope. But, sir, there never was even colorable excuse, much

less apology, for any man North or South claiming that any State Legislature or State court, or State Executive, has any right to deny protection to any free citizen of the United States within their limits in the rights of life, liberty, and property. Gentlemen who oppose this amendment oppose the grant of power to enforce the bill of rights. Gentlemen who oppose this amendment simply declare to these rebel States, go on with your confiscation statutes, your statutes of banishment, your statutes of unjust imprisonment, your statutes of murder and death against men because of their loyalty to the Constitution and Government of the United States. That is the issue that is before the American people; and God helping me, without respect for persons in high places who show a disposition to betray this great cause, I will not betray it, so long as it is given me to know the right. ... And I beg leave to say further, without regard to the testimony taken by the committee touching the condition of the other States, for I have not read it, but from information which I have derived from casual conversations with gentlemen who are residents of those States, and in whom I have confidence, that it will prove to be the fact that the rebels will be found in a majority of three to one or four to one in every one of the States that have been engaged in the rebellion, except in Tennessee. How will you prevent that overpowering majority from taking possession of those reconstructed governments? Do you call it a “republican government” within the meaning of the Constitution to maintain a minority in power indefinitely in a State by Federal bayonets? I do not, nor does any other intelligent man. What then? Why, according to the programme before us, those rebels are all to be sworn in—sworn in upon an oath that makes no conditions, as announced in the President’s speech the other day at the White House, save that they will hereafter support the Constitution. They are all to be sworn in and to be allowed to assume the control of their respective States. Where is the power in Congress, unless this or some similar amendment be adopted, to prevent the reenactment of those infernal statutes of banishment and confiscation and imprisonment and murder under which people have suffered in those States during the last four years? Let some man answer. Why, sir, the gentleman from New York [Mr. Hale] himself yesterday gave up the argument on this 114

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point. He said that the citizens must rely upon the State for their protection. I admit that such is the rule under the Constitution as it now stands. I beg leave to read, in confirmation of the truth of what I say, an utterance made in the hearing of the whole people of this country in 1788, when the Constitution was on trial for its deliverance. I read from No. 45 of the Federalist, a paper written by James Madison:

ers necessary to carry the express powers into effect. A grant of power, according to all construction, is a very different thing from a bill of rights. In support of what I have said on this point I ask attention to the following citations: McCulloch vs. Maryland, 4 Wheaton, 405, Marshall, C.J., says: “The Constitution of the United States is one of limited and expressly delegated powers, which can only be exercised as granted, or in cases enumerated.”

“The powers reserved to the Federal* 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.”

I submit that this is the text of the Constitution, except as to the new amendment prohibiting slavery, and providing for legislation to prevent it except as punishment for crime. It stands as the ruling of the Supreme Court of the United States in the great case of McCulloch vs. The State of Maryland, in 4 Wheaton. It stands as the ruling of the same tribunal in the case of Ogden vs. Gibbons, in 9 Peters. It stands, in short, as the uniform ruling of the Supreme Court of the United States, concurring with the continued action of the other departments of the Government from the year 1789 till this hour, there being no law anywhere upon our statute-­ books to punish penally any State officer for denying in any State to any citizen of the United States protection in the rights of life, liberty, and property. It stands as the very text of the Constitution itself, which declares that— “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively or to the people.”

Speaking of the authority given to Congress by the last clause of the first article, eighth section, of the Constitution, Judge Story in his Commentaries, section 1238, says: “The plain import of this clause is, that Congress shall have all the incidental and instrumental powers necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted, nor is it a grant of any new power to Congress.”

In Martin vs. Hunter’s Lessee, 1 Wheaton, 326, it is said: “The Government of the United States can claim no powers which are not granted to it by the Constitution, and the powers actually granted are such as are expressly given or given by necessary implication.”

In Gibbons vs. Ogden, 9 Wheaton, 187, Chief Justice Marshall, speaking of the Constitution, says: “This instrument contains an enumeration of powers expressly granted by the people to their Government.”

In Kent’s Commentaries, volume one, pages 388–390, there is this language:

The word “powers” controls the whole question. The Government of the United States has no legislative powers, save the express grants and the general grant to pass all laws which shall be necessary and proper to carry into execution all other powers vested by the Constitution in the Government of the United States, or in any department or any officer thereof, and the implied pow-

“The correct principle is that whenever the terms in which the power was granted to Congress, or the nature of the power required that it should be exclusively exercised by Congress, the subject was as completely taken away from the State Legislatures as if they had been expressly forbidden to act upon it.”

* [The Congressional Globe here either misquotes Bingham or Bingham misquotes Federalist No. 45. Madison actually wrote “The powers reserved to the several States,” not “The powers reserved to the Federal States.” See vol. 1, 1B, doc. 6. —Ed.]

You have the express power to define the punishment of treason; the express power to punish the counterfeit115

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ing of coin or securities of the United States; the express power to define and punish piracies and felonies committed upon the high seas; and offenses against the law of nations; exclusive legislative power within this District; express powers to govern all Territories; but where is the express power to define and punish crimes committed in any State by its official officers in violation of the rights of citizens and persons as declared in the Constitution? And from what expressly delegated power in the Constitution can any such power be implied? Passing the anti-­slavery amendment, is there any one prepared to say that the bill of rights confers express legislative power on Congress to punish State officers for a willful and corrupt disregard of their oaths and oppressive and flagrantly unjust violations of the declared rights of every citizen and every free man in every free State? The words of Madison cited are very significant: “The powers reserved to the several States will extend to all the objects which concern the lives, liberties, and properties of the people.” The fact is that Congress has never by penal enactment in all the past attempted to enforce these rights of the people in any State of the Union. Sir, the great question is presented for the consideration of the House and the country, shall these States, all of them, be restored in their present condition, and with no new securities taken by the people for the future? Shall South Carolina be thus restored, for example, nine tenths of her people who vote having been rebels in arms or directly engaged in rebellion against the country, and her Governor having been an active member of the rebel senate at Richmond during the four years’ trial, now acting Governor over the loyal men of the State? Is that State to be restored without the power in Congress to protect the few loyal white men there against State statutes of confiscation and statutes of banishment? And for the emancipated slaves of South Carolina are you to have no power save to prohibit their reduction again to slavery except as punishment for crimes against the laws of South Carolina? Let some gentleman who opposes this amendment stand up in his place and answer to the country how, after these States are restored to political power, the Government of the United States can by law intervene, except as to slavery, under the Constitution of the United States, as it now stands, to protect the loyal white minority or the loyal but disenfranchised colored majority in that State against banishment? ...

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Representatives, to you I appeal, that hereafter, by your act and the approval of the loyal people of this country, every man in every State of the Union, in accordance with the written words of your Constitution, may, by the national law, be secured in the equal protection of his personal rights. Your Constitution provides that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless, no matter how ignorant, shall be deprived of life or liberty or property without due process of law—law in its highest sense, that law which is the perfection of human reason, and which is impartial, equal, exact justice; that justice which requires that every man shall have his right; that justice which is the highest duty of nations as it is the imperishable attribute of the God of nations. Mr. HALE. Before the gentleman takes his seat will he allow me to ask a single question pertinent to this subject? Mr. BINGHAM. Yes sir. Mr. HALE. I desire after hearing the gentleman’s argument, in which I have been much interested as a very calm, lucid, and logical vindication of the amendment, to ask him, as an able constitutional lawyer, which he has proved himself to be, whether in his opinion this proposed amendment to the Constitution does not confer upon Congress a general power of legislation for the purpose of securing to all persons in the several States protection of life, liberty, and property, subject only to the qualification that that protection shall be equal. Mr. BINGHAM. I believe it does in regard to life and liberty and property as I have heretofore stated it; the right to real estate being dependent on the State law except when granted by the United States. Mr. HALE. Excuse me. If I understand the gentleman, he now answers that it does confer a general power to legislate on the subject in regard to life and liberty, but not in regard to real estate. I desire to know if he means to imply that it extends to personal estate. Mr. BINGHAM. Undoubtedly it is true. Let the gentleman look to the great Mississippi case, Slaughter and another, which is familiar, doubtless, to all the members of the House, and he will find that under the Constitution the personal property of a citizen follows its owner, and is entitled to be protected in the State into which he goes. Mr. HALE. The gentleman misapprehends my point,

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or else I misapprehend his answer. My question was whether this provision, if adopted, confers upon Congress general powers of legislation in regard to the protection of life, liberty, and personal property. Mr. BINGHAM. It certainly does this: it confers upon Congress power to see to it that the protection given by laws of the States shall be equal in respect to life and liberty and property to all persons. Mr. HALE. Then will the gentleman point me to that clause or part of this resolution which contains the doctrine he here announces? Mr. BINGHAM. The words “equal protection” contain it, and nothing else. Mr. CONKLING. Mr. Speaker, I have not sought the floor for the purpose of discussing the merits of this amendment. It was introduced several weeks ago and considered in the committee of fifteen. At that time and always I felt constrained to withhold from it my support as one of the committee, and when the consent of the committee was given to its being reported I did not concur in the report. So much I deem it fair and right to say. There are, Mr. Speaker, I know, a number of gentlemen upon the one side and the other of this question who wish further time to consider it, if not to discuss it, and I therefore intend, without any hostility to the gentleman who has it in charge, but at least, I think, by his quasi consent, to make a motion to postpone. But before I do so, my colleague, [Mr. Hotchkiss,] I believe, wants to say a word, and if he will say it now I will allow him to do so and then resume the floor. Mr. HOTCHKISS. My excuse for detaining the House is simply that I desire to explain why I shall vote in a manner that may be regarded as inconsistent with my usual votes in this House. I have no doubt that I desire to secure every privilege and every right to every citizen in the United States that the gentleman who reports this resolution desires to secure. As I understand it, his object in offering this resolution and proposing this amendment is to provide that no State shall discriminate between its citizens and give one class of citizens greater rights than it confers upon another. If this amendment secured that, I should vote very cheerfully for it to-­day; but as I do not regard it as permanently securing those rights, I shall vote to postpone its consideration until there can be a further conference between the friends of the measure, and we can devise some means whereby we shall secure those rights beyond a question. I understand the amendment as now proposed by its

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terms to authorize Congress to establish uniform laws throughout the United States upon the subject named, the protection of life, liberty, and property. I am unwilling that Congress shall have any such power. Congress already has the power to establish a uniform rule of naturalization and uniform laws upon the subject of bankruptcy. That is as far as I am willing that Congress shall go. The object of a Constitution is not only to confer power upon the majority, but to restrict the power of the majority and to protect the rights of the minority. It is not indulging in imagination to any great stretch to suppose that we may have a Congress here who would establish such rules in my State as I should be unwilling to be governed by. Should the power of this Government, as the gentleman from Ohio fears, pass into the hands of the rebels, I do not want rebel laws to govern and be uniform throughout this Union. Mr. BINGHAM. The gentleman will pardon me. The amendment is exactly in the language of the Constitution; that is to say, it secures to the citizens of each of the States all the privileges and immunities of citizens of the several States. It is not to transfer the laws of one State to another State at all. It is to secure to the citizen of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution. Mr. HOTCHKISS. Constitutions should have their provisions so plain that it will be unnecessary for courts to give construction to them; they should be so plain that the common mind can understand them. The first part of the amendment, to which the gentleman alludes, is precisely like the present Constitution; it confers no additional powers. It is the latter clause wherein Congress is given the power to establish these uniform laws throughout the United States. Now, if the gentleman’s object is, as I have no doubt it is, to provide against a discrimination to the injury or exclusion of any class of citizens in any State from the privileges which other classes enjoy, the right should be incorporated into the Constitution. It should be a constitutional right that cannot be wrested from any class of citizens, or from the citizens of any State by mere legislation. But this amendment proposes to leave it to the caprice of Congress; and your legislation upon the subject would depend upon the political majority of Congress, and not upon two thirds of Congress and three fourths of the States. Now, I desire that the very privileges for which the

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gentleman is contending shall be secured to the citizens; but I want them secured by a constitutional amendment that legislation cannot override. Then if the gentleman wishes to go further, and provide by laws of Congress for the enforcement of these rights, I will go with him. But now, when we have the power in this Government, the power in this Congress, and the power in the States to make the Constitution what we desire it to be, I want to secure those rights against accidents, against the accidental majority of Congress. Suppose that we should have here the influx of rebels which the gentleman predicts; suppose a hundred rebels should come here from the rebel States. Then add to them their northern sympathizers, and a reasonable percentage of deserters from our side, and what would become of this legislation? And what benefit would the black man or the white man derive from it? Place these guarantees in the Constitution in such a way that they cannot be stripped from us by any accident, and I will go with the gentleman. Mr. Speaker, I make these remarks because I do not wish to be placed in the wrong upon this question. I think the gentleman from Ohio [Mr. Bingham] is not sufficiently radical in his views upon this subject. I think he is a conservative. [Laughter] I do not make the remark in any offensive sense. But I want him to go to the root of the matter. His amendment is not as strong as the Constitution now is. The Constitution now gives equal rights to a certain extent to all citizens. This amendment provides that Congress may pass laws to enforce these rights. Why not provide by an amendment to the Constitution that no State shall discriminate against any class of its citizens; and let that amendment stand as a part of the organic law of the land, subject only to be defeated by another constitutional amendment. We may pass laws here to-­ day, and the next Congress may wipe them out. Where is your guarantee then? Let us have a little time to compare our views upon this subject, and agree upon an amendment that shall secure beyond question what the gentleman desires to secure. It is with that view, and no other, that I shall vote to postpone this subject for the present. Mr. CONKLING. It would be a great pleasure to me, under the circumstances, to agree with my distinguished colleague [Mr. Hotchkiss] who has just taken his seat. But I shall vote to postpone this subject for very different reasons from, if not entirely opposite to, those

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he has given. I certainly think no objection is to be made to this proposed amendment because it does not go far enough or because it is not sufficiently radical. Mr. ELDRIDGE. Will the gentleman yield to me? Mr. CONKLING. For what purpose? Mr. ELDRIDGE. I desire to move to lay this joint resolution upon the table. Mr. CONKLING. No, thank you; just by way of variety, I will occupy the floor during my own time, if the gentleman will allow me. I rose for the purpose of moving to postpone this subject to a day certain. Although I intended to make some remarks upon it, yet so much has been said, and so well said already upon it, and the gentleman from Pennsylvania [Mr. Stevens] is in a hurry to get at an appropriations bill, I will forego any remarks, and simply submit the motion that this whole subject be postponed until the second Tuesday of April next, and upon that motion I demand the previous question. Mr. ELDRIDGE. Is it in order now for me to move to lay the whole subject upon the table? Mr. SPEAKER. That motion is in order. Mr. ELDRIDGE. Then I make that motion, and upon it I ask the yeas and nays. The yeas and nays were ordered. The question was taken; and it was decided in the negative—yeas 41, nays 110, not voting 32; ... So the motion to lay the joint resolution on the table was not agreed to. ... Mr. ANCONA. I demand the yeas and nays on the motion to postpone. ... The question was taken; and it was decided in the affirmative—yeas 110, nays 37, not voting 36; ... So the motion to postpone was agreed to.

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The SPEAKER. The gentleman from Iowa [Mr. Wilson] proposes, as the Chair understands, to perfect the bill by offering these amendments, after which the whole bill will be before the House. Mr. BINGHAM. Very well. ... Mr. WILSON, of Iowa. ... The Committee on the Judiciary bestowed on this subject a degree of careful examination which we believe will enable us to maintain successfully our conclusions both as to the propriety and constitutionality of this measure. The first section of the bill contains the following declaration concerning citizenship:

43 US House, Debate, Civil Rights Bill, Speeches of James Wilson and M. Russell Thayer March 1–2, 1866 March 1, 1866 *

Mr. WILSON, of Iowa. I now call up the motion I made a few days since to reconsider the vote of the House, referring to the Committee on the Judiciary Senate bill No. 61, to protect all persons in the United States in their civil rights, and to furnish the means for their vindication; and upon that motion I call the previous question. The previous question was seconded, and the main question ordered; and under the operation thereof the motion to reconsider was agreed to. The question recurred upon the motion to refer the bill to the Committee on the Judiciary. Mr. WILSON, of Iowa. I now withdraw that motion. The House then proceeded to the consideration of the bill. Mr. WILSON, of Iowa. This bill has been considered by the Committee on the Judiciary, and I have been instructed by that committee to offer several amendments to it. The first amendment is in the seventh line of the first section, to strike out the words “inhabitants of ” and insert the words “citizens of the United States in;” so that that portion will read:

That all persons born in the United States and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens of the United States without distinction of color.

This provision, I maintain, is merely declaratory of what the law now is. This, I presume, would not be disputed if the language were qualified by the presence of the word “white.” ... Attorney General Bates fully appreciated the importance of the question submitted to him for his opinion by the Secretary of the Treasury, and devoted to it a most careful and painstaking examination. This is amply evidenced by the elaborateness of the opinion and by the ability manifested in every one of its twenty-­ seven pages. I might with profit draw largely from the pages of this opinion in support of the position I maintain, but the time allotted me by the rules of the House constrains me to confine myself to quoting the conclusion arrived at by the author of this able paper. It is in these words:

There shall be no discrimination in civil rights or immunities among the citizens of the United States in any State or Territory, &c.

This amendment is intended to confine the operation of this bill to citizens of the United States, instead of extending it to the inhabitants of the several States, as there seems to be some doubt concerning the power of Congress to extend this protection to such inhabitants as are not citizens. I demand the previous question on the amendment. Mr. BINGHAM. I hope that the previous question will not be seconded until I can have an opportunity to offer a further amendment. * Cong. Globe, 39th Cong., 1st Sess., 1115–22 (Mar. 1, 1866).

“And now, upon the whole matter, I give it as my opinion that the free man of color mentioned in your letter, if born in the United States, is a citizen of the United States, and if otherwise qualified, is competent, according to the acts of Congress, to be master of a vessel engaged in the coasting trade.”

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... But, sir, suppose I should admit for the sake of an argument that negroes are not citizens, would that be an objection to the power of Congress to enact the provision of this bill to which I have called the attention of

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the House? If they are not citizens may we not naturalize them? If this can be done, then in either view of the case the provision of the bill which I am now discussing is proper, and is not obnoxious to the objection that we do not possess the power to pass it. The Constitution, in article one, section eight, provides that Congress shall have power “to establish a uniform rule of naturalization.” This does not mean that the power of Congress exhausts itself by being once used, nor that there can be but one rule, nor that the rule established must provide that the naturalization shall be by action upon single or individual cases, nor yet that only foreigners can be thus made citizens. The practice of the Government is against all these positions. The rule must be uniform in its operation upon the class affected by it, and must not be confined in terms in its operation to any particular State or district of country, except when it operates only on a particular class of persons who may be occupying a limited district of country. Several statutes, establishing as many different rules, each uniform in itself, have been enacted on this subject. Most of these rules provide for the naturalization by individual cases:

in any State or Territory of the United States on account of race, color, or previous condition of slavery; and such citizens 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 equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

This part of the bill will probably excite more opposition and elicit more discussion than any other; and yet to my mind it seems perfectly defensible. It provides for the equality of citizens of the United States in the enjoyment of “civil rights and immunities.” What do these terms mean? Do they mean that in all things civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed. Do they mean that all citizens shall vote in the several States? No; for suffrage is a political right which has been left under the control of the several States, subject to the action of Congress only when it becomes necessary to enforce the guarantee of a republican form of government. Nor do they mean that all citizens shall sit on the juries, or that their children shall attend the same schools. These are not civil rights or immunities. Well, what is the meaning? What are civil rights? I understand civil rights to be simply the absolute rights of individuals, such as—

“But a collective naturalization may also take place, of a class of persons, natives of the country or otherwise, and who, without any act on the part of the individuals, may be made citizens.”—Lawrence’s Appendix to Wheaton on International Law; Opinion of Attorney General Cushing, in Opinions of Attorneys General, vol. 7, p. 746.

The power thus to naturalize collectively has been exercised in several instances by the Government. The most striking case is that which is found in the act of March 3, 1843, in which it is provided that the

“The right of personal security, the right of personal liberty, and the right to acquire and enjoy property.” “Right itself, in civil society, is that which any man is entitled to have, or to do, or to require from others, within the limits of prescribed law.”—Kent’s Commentaries, vol. 1, p. 199.

“Stockbridge tribe of Indians, and each and every of them, shall be deemed to be, and from that time declared to be, citizens of the United States.”

Mr. Speaker, these authorities are sufficient upon this point, and I will leave the question of citizenship as presented in the first part of this section, and call the attention of the House to the next proposition of the section as proposed to be amended by the committee. It is in these words: There shall be no discrimination in civil rights or immunities among citizens of the United States

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To use the language of Attorney General Bates, in the opinion already cited, “The word rights is generic, common, embracing whatever may be lawfully claimed.” The definition given to the term “civil rights” in Bouvier’s Law Dictionary is very concise, and is supported by the best authority. It is this:

A. Drafting, doc. 43

“Civil rights are those which have no relation to the establishment, support, or management of government.”

acquire and possess property of every kind, and to pursue and obtain happiness and safety; 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; to be exempt from higher taxes or impositions than are paid by the other citizens of the State,” (Corfield vs. Coryell, 4 Washington’s Circuit Court Reports, p. 380.)

From this it is easy to gather an understanding that civil rights are the natural rights of man; and these are the rights which this bill proposes to protect every citizen in the enjoyment of throughout the entire dominion of the Republic. But what of the term “immunities?” What is an immunity? Simply “freedom or exemption from obligation;” an immunity is “a right of exemption only,” as “an exemption from serving in an office, or performing duties which, the law generally requires other citizens to perform.” This is all that is intended by the word “immunities” as used in this bill. It merely secures to citizens of the United States equality in the exemptions of the law. A colored citizen shall not, because he is colored, be subjected to obligations, duties, pains, and penalties from which other citizens are exempted. Whatever exemptions there may be shall apply to all citizens alike. One race shall not be more favored in this respect than another. One class shall not be required to support alone the burdens which should rest on all classes alike. This is the spirit and scope of the bill, and it goes not one step beyond. Mr. Speaker, I think I may safely affirm that this bill, so far as it declares the equality of all citizens in the enjoyment of civil rights and immunities, merely affirms existing law. We are following the Constitution. We are reducing to statute form the spirit of the Constitution. We are establishing no new right, declaring no new principle. It is not the object of this bill to establish new rights, but to protect and enforce those which already belong to every citizen. I am aware, sir, that this doctrine is denied in many of the States; but this only proves the necessity for the enactment of the remedial and protective features of this bill. If the States would all observe the rights of our citizens, there would be no need of this bill. If the States would all practice the constitutional declaration, that “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” (Article four, section two. Constitution of the United States,)

and enforce it, as meaning that the citizen has

“The right of protection by the Government, the enjoyment of life and liberty, with the right to

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we might very well refrain from the enactment of this bill into a law. If they would recognize that “general citizenship” (Story on the Constitution, volume two, page 604) which under this clause entitles every citizen to security and protection of personal rights, (Campbell vs. Morris, 3 Harris & McHenry, 535,) we might safely withhold action. And if above all, Mr. Speaker, the States should admit, and practice the admission, that a citizen does not surrender these rights because he may happen to be a citizen of the State which would deprive him of them, we might, without doing violence to the duty devolved upon us, leave the whole subject to the several States. But, sir, the practice of the States leaves us no avenue of escape, and we must do our duty by supplying the protection which the States deny. Mr. Speaker, if all our citizens were of one race and one color we would be relieved of most of the difficulties which surround us. This bill would be almost, if not entirely, unnecessary, and if the States, seeing that we have citizens of different races and colors, would but shut their eyes to these differences and legislate, so far at least as regards civil rights and immunities, as though all citizens were of one race and color, our troubles as a nation would be well-­nigh over. But such is not the case, and we must do as best we can to protect our citizens, from the highest to the lowest, from the whitest to the blackest, in the enjoyment of the great fundamental rights which belong to all men. It will be observed that the entire structure of this bill rests on the discrimination relative to civil rights and immunities made by the States on “account of race, color, or previous condition of slavery.” That these things should not be is no answer to the fact of their existence. That the result of the recent war, and the enactment of the measures to which the events of the war naturally led us, have intensified the hate of the controlling class in the insurgent States toward our colored citizens is a fact against which we can neither shut our ears nor close our eyes. Laws barbaric and treatment in-

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“Sec. 1. Neither slavery nor involuntary servitude, except as punishment of crime whereof the party shall have been duly convicted, shall exist in the United States, or in any place subject to their jurisdiction. “Sec. 2. Congress shall have power to enforce this article by appropriate legislation.”

human are the rewards meted out by our white enemies to our colored friends. We should put a stop to this at once and forever. And yet I would not do this in a way which would deprive a white man of a single right to which he is entitled. I would merely enforce justice for all men; and this is lawful, it is right, and it is our bounden duty. In order to accomplish this end it is necessary to fortify the declaratory portions of this bill with such sanctions as will render it effective. The first of these is found in the second section, and in these words:

Here, certainly, is an express delegation of power. How shall it be exercised? Who shall select the means through which the office of this power shall effect the end designed by the people when they placed this provision in the Constitution? Happily, sir, we are not without light on these questions from the Supreme Court. In the celebrated case of McCulloch vs. The State of Maryland, Chief Justice Marshall, in delivering the opinion of the court, says:

Sec. 2. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine not exceeding $1,000, or imprisonment not exceeding one year, or both, in the discretion of the court.

“We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”—4 Wheaton’s Reports, p. 420.

Now, sir, unless I am mistaken in all that I have said up to this point, our power to enact this section cannot be questioned. If citizens of the United States, as such, are entitled to possess and enjoy the great fundamental civil rights which it is the true office of Government to protect, and to equality in the exemptions of the law, we must of necessity be clothed with the power to insure to each and every citizen these things which belong to him as a constituent member of the great national family. But it may be urged that we can exercise only such powers as are delegated by express provision of the Constitution or arise by implication from its express provisions. And following this may come the demand for the express or implied powers to support this and the subsequent sections of this bill. Well, sir, as to those citizens who may be in danger of being subjected to slavery or involuntary servitude, I answer that the express power supporting this measure may be found in the following provision of the C ­ onstitution:

Who will say that the means provided by this second section of the bill are not appropriate for the enforcement of the power delegated to Congress by the second section of the amendment abolishing slavery, which I have quoted? The end is legitimate, because it is defined by the Constitution itself. The end is the maintenance of freedom to the citizen. What means more appropriate could be selected than that which punishes a man by commonly inflicted punishments through the ordinary channels of the law and the courts for depriving the citizen of those rights which, while he enjoys them, are his sure defense against efforts to reduce him to slavery? A man who enjoys the civil rights mentioned in this bill cannot be reduced to slavery. Anything which protects him in the possession of these rights insures him against 122

A. Drafting, doc. 43

the law, we must of necessity be clothed with the power to insure to each and every citizen these things which belong to him as a constituent member of the great national family.” Whatever these great fundamental rights are, we must be invested with power to legislate for their protection or our Constitution fails in the first and most important office of government. What are these rights? Certainly they must be as comprehensive as those which belong to Englishmen. And what are they? Blackstone classifies them under three articles, as follows: 1. The right of personal security; which, he says,

reduction to slavery. This settles the appropriateness of this measure, and that settles its constitutionality. Of the necessity of the measure Congress is the sole judge. This is clearly announced in the case just cited, and in this language: “Where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department and to tread on legislative ground.”—Page 423.

If this bill shall pass both Houses and become a law, that fact of itself determines the question of necessity, and from this decision there is no appeal except to another Congress. This is the doctrine of the Constitution, as declared by the highest judicial tribunal known to our laws. ... The remaining sections of the bill are aids to what has gone before, and I will not spend time in discussing them. Suffice it to say that they are based on the act of September 18, 1850, commonly known as the “fugitive slave law,” the constitutionality of which has been affirmed over and over again by the courts. (Vide 5 McLean, Rep., 469; 2 Paine, C. C. 348; 16 Barbour, 268; 7 Cushing, Mass., 285.) And, sir, I am not willing that all of these precedents, legislative and judicial, which aided slavery so long, shall now be brushed into oblivion when freedom needs their assistance. Let them now work out a proper measure of retributive justice by making freedom as secure as they once made slavery hateful. I cannot yield up the weapons which slavery has placed in our hands now that they may be wielded in the holy cause of liberty and just government. We will turn the artillery of slavery upon itself. But, sir, this bill may have a broader application than that which would reach the cases of persons designed to be protected by the delegation of power contained in the amendment of the Constitution upon which I have commented. If it does reach beyond these cases, and in its enlarged operation step out of the bounds of this express delegation of power, upon what, in this more extended sphere, must it rely for support? I have already said, “If citizens of the United States, as such, are entitled to possess and enjoy the great fundamental civil rights which it is the true office of Government to protect, and to equality in the exemptions of

“Consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.” 2. The right of personal liberty; and this, he says,

“Consists in the power of locomotion, of changing situation, or moving one’s person to whatever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.”

3. The right of personal property; which he defines to be, “The free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.”—Sharswood’s Blackstone, vol. 1, chap. 1.

In his lecture on the absolute rights of persons. Chancellor Kent (Kent’s Commentaries, volume one, page 599) says: “The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered, and frequently declared, by the people of this country, to be natural, inherent, and inalienable.”

Thus, sir, we have the English and American doctrine harmonizing. The great fundamental rights are the inalienable possession of both Englishmen and Americans; and I will not admit that the British constitution excels the American Constitution in the amplitude of its provisions for the protection of these lights. Our Constitution is not a mockery; it is the never-­failing fountain of power from whence we may draw our justification for the passage of this bill; for there is no right enumerated 123

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in it by general terms or by specific designation which is not definitely embodied in one of the rights I have mentioned, or results as an incident necessary to complete defense and enjoyment of the specific right. Now, sir, I reassert that the possession of these rights by the citizen raises by necessary implication the power in Congress to protect them. If a citizen of the United States should go abroad, and while within the jurisdiction of a foreign Power be despoiled of his rights of personal security, personal liberty, or personal property contrary to the due course of law of the nation inflicting the wrong, this Government would espouse his cause and enforce redress even to the extremity of war. ... Before our Constitution was formed, the great fundamental rights which I have mentioned, belonged to every person who became a member of our great national family. No one surrendered a jot or tittle of these rights by consenting to the formation of the Government. The entire machinery of government as organized by the Constitution was designed, among other things, to secure a more perfect enjoyment of these rights. A legislative department was created that laws necessary and proper to this end might be enacted. A judicial department was erected to expound and administer the laws. An executive department was formed for the purpose of enforcing and seeing to the execution of these laws. And these several departments of Government possess the power to enact, administer, and enforce the laws “necessary and proper” to secure these rights which existed anterior to the ordination of the Constitution. Any other view of the powers of this Government dwarfs it and renders it a failure in its most important office. Upon this broad principle I rest my justification of this bill. I assert that we possess the power to do those things which Governments are organized to do; that we may protect a citizen of the United States against a violation of his rights by the law of a single State; that by our laws and our courts we may intervene to maintain the proud character of American citizenship; that this power permeates our whole system, is a part of it, without which the States can run riot over every fundamental right belonging to citizens of the United States; that the right to exercise this power depends upon no express delegation, but runs with the rights it is designed to protect; that we possess the same latitude in respect to the selection of means through which to exercise this power that belongs to us when a power rests upon express delegation; and that the decisions which support

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the latter maintain the former. And here, sir, I leave the bill to the consideration of the House. ... Mr. ROGERS. Mr. Speaker, I, as one of the committee from which this bill was reported, deem it my duty, as I have had probably more opportunity to investigate the character of it than some other gentlemen in the House, to expatiate somewhat upon the bill, not only with regard to its constitutionality, but its policy. Let me say, in the commencement, that there is no person in this House more willing to extend to the negro all the rights of life, liberty, and property than I am. I am willing to treat him in the most kindly and Christian-­like manner, and extend to him every privilege that ought to be guarantied to any man in the United States for the protection of his liberty, his life, and his property. But when I took my seat in this body I took a solemn oath, which I implanted deeply in my heart and conscience, that I would support the Constitution of the United States and defend it against its enemies, whether within or without. Now, sir, it cannot be pretended by any lawyer in this House, whatever his political opinions may be, who will base his integrity upon his professional experience, that there is any authority in the Congress of the United States to enter the domain of a State and interfere with its internal police, statutes, and domestic regulations. Why, sir, the proposed amendment of the Constitution which has just been discussed in this House and postponed till April next, was offered by the learned gentleman from Ohio [Mr. Bingham] for the very purpose of avoiding the difficulty which we are now meeting in the attempt to pass this bill now under consideration. Because the amendment which he reported from the committee of fifteen was intended to confer upon Congress the power “to make laws which shall be necessary and proper to secure to the citizens of each State all the privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the right of life, liberty, and property.” There is no protection or law provided for in that constitutional amendment which Congress is authorized to pass by virtue of that constitutional amendment that is not contained in this proposed act of Congress which is now before us. Therefore we have the opinion of the majority of the committee of fifteen, and the opinion of the learned gentleman from Ohio, [Mr. Bingham,] that in order to do what this bill proposes, Congress must be empowered by an amendment to the organic law.

A. Drafting, doc. 43

I affirm, without the fear of successful contradiction, that by the decision of the highest court of the United States, that august tribunal to whose decisions every honest and patriotic man is bound to bow, it has been expressly and solemnly decided, after the most mature deliberation, by a bench of the most enlightened and learned lawyers that ever sat upon it, that negroes in this country, whether free or slave, are not citizens or people of the United States within the meaning of the words of the Constitution, and that therefore no law of Congress or of any State can extend to the negro race, in the full sense of the term, the status of citizenship. And the organic law, by its letter and spirit, and in view of the contemporaneous circumstances under which it was passed, fully vindicate the authority of this decision of the Supreme Court, declaring that no power within any State, much less in the Congress of the United States, can change the status of the negro. That cannot be done until the requisite amendment is made to the Constitution, until some such article has been carried into effect by two thirds of both Houses of Congress and three fourths of the States. ... I go further, and say if we have a constitutional right to pass it, then Congress is authorized to exercise sovereign power and domain in the States in regard to the elective franchise; and that under it Congress may provide that a negro may go to the ballot-­box and exercise the same political right of suffrage as is exercised by white men in all the States of the Union. The bill provides 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 condition 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 equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

What broader words than privileges and immunities are to be found in the dictionary? What right do we exercise under the Constitution, including that of the right of suffrage, that under this language Congress may not grant to the negro? The right of suffrage is not a natural right. It is a civil right. It is a right derived from the Government and municipal law, as laid down in the organism of a State, and to extend to such persons as it may see fit. There are only two kinds of right: one is that which a man acquires from the civil municipal laws. There is another right which God gives us, the right of self-­defense, the right to protect our lives from invasion by others. There are no other rights but the rights of nature and the great civil rights, the privileges and immunities created and granted to citizens of a country by virtue of the sovereign power under which the citizen lives. All the rights that we enjoy, except our natural rights, are derived from Government. Therefore, there are really but two kinds of rights, natural rights and civil rights. This bill, then, would prevent a State from refusing negro suffrage under the broad acceptation of the term “civil rights or immunities.” In fact, it has been decided by the circuit court of the United States, in the case of Corfield vs. Coryell, 4 Washington’s Circuit Court Reports, pages 380 and 381, that the elective franchise is included in the words privileges and immunities. The court say: “The inquiry is, what are the privileges and immunities of citizens in the several States?”

The court then go on to name the particulars, and include the elective franchise among them.

March 2, 1866 *

Mr. THAYER. ... The sole purpose of the bill is to secure to that class of persons the fundamental rights of citizenship; those rights which constitute the essence of freedom, and which are common to the citizens of all civilized States; those rights which secure life, liberty, and property, and which make all men equal before the law, as they are equal in the scales of eternal justice and in the eyes of God. ... Would it not be an extraordinary circumstance if the framers of the Constitution had made a Constitu125

* Cong. Globe, 39th Cong., 1st Sess., 1152–54 (Mar. 2, 1866).

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tion which was powerless to protect the citizens of the United States in their fundamental civil rights, their rights of life, liberty and property? And yet that position are these gentlemen driven who deny the existence of any power which authorizes Congress to pass this bill. If I am asked from whence the power is derived to pass this bill, I reply that I derive it, in the first place, from the second section of the late amendment to the Constitution. I say further, that so far as regards the power to declare the freedmen citizens is concerned, it may be clearly derived (if it be not inherent in the very frame of every Government) from that clause of the Constitution which gives the express power to Congress to pass laws for naturalization. And I might say, also, that in my judgment sufficient power is found, by implication at least, in that clause of the Constitution which guaranties to all the citizens of the United States their right to life, liberty and property. There are sources of power enough from which this power can be deduced. In my judgment no man can find any difficulty in seeking constitutional grounds upon which to place his justification for supporting this bill. ... If, then, the freedmen are now citizens, or if we have the constitutional power to make them such, they are clearly entitled to those guarantees of the Constitution of the United States which are intended for the protection of all citizens. They are entitled to the benefit of that guarantee of the Constitution which secures to every citizen the enjoyment of life, liberty and property, and no just reason exists why they should not enjoy the protection of that guarantee of the Constitution. ... I approve of the proposition of the gentleman from Ohio, [Mr. Bingham] in which he offers to put this protection substantially into the Constitution of the United States, though, according to my best judgment, it is not necessary to do so, and I have little hope that the proposition he submits will ever be carried into effect. Still I will, in order to make things doubly secure, vote for the proposition of the gentleman from Ohio. I will also vote for this bill.

44 US Senate, Debate, Apportionment Amendment, Opposition of Charles Sumner March 7, 1866*

The PRESIDENT pro tempore. The morning hour having expired, it becomes the duty of the Chair to call up the unfinished business of yesterday, being the joint resolution (H.R. No. 51) proposing to amend the Constitution of the United States, upon which the Senator from Massachusetts [Mr. Sumner] is entitled to the floor. Mr. SUMNER. Mr. President, I hesitate to intrude again into this debate, which now, after the interjection of another debate on another question, is again renewed. I do it with unfeigned reluctance, and I hope not to trespass too much on your patience. ... The proposition now before you is the most important ever brought into Congress, unless, perhaps, we may except the amendment abolishing slavery, and to my mind it is the most utterly reprehensible and unpardonable. ... From the moment I heard this proposition first read at the desk I have not been able to think of it without pain. The reflection that it might find a place in the Constitution, or even that it might be sanctioned by Congress, is intolerable. ... I shall not content myself by describing this proposition. This is not enough, where such an attempt is made. You have seen it in its general character only. You shall see it now in its guilty parts, each one of which is sufficient to arouse the conscience against it. 1. Of course you cannot fail to be struck by its language. Here words become things. In express terms there is an admission of the idea of Inequality of Rights founded on race or color. That this unrepublican idea should be allowed to find a place in the text of the Constitution will excite especial wonder when it is considered how conscientiously our fathers excluded from 126

* Cong. Globe, 39th Cong., 1st Sess., 1224–28 (Mar. 7, 1866).

A. Drafting, doc. 45

that text the kindred idea of property in man. The saying of Mr. Madison cannot be too often repeated:

45 US House, Debate, Civil Rights Bill

“He thought it wrong to admit in the Constitution the idea of property in man.”*

March 8, 1866†

But is it less wrong to admit in the Constitution the idea of Inequality of Rights founded on race or color? ... 2. One of its elementary parts and consequences is that it sanctions the acknowledged tyranny of taxation without representation. ... 4. Proceeding with the dissection of the proposition before the Senate I now exhibit it, not only as a concession to State Rights, which is admitted by a Louisiana supporter, but, should it be adopted, as the constitutional recognition of an Oligarchy, Aristocracy, Caste and Monopoly, founded on color. All this appears on the face; and as you examine the proposition, the intolerable consequence becomes still more apparent. Thus far we have been saved from such shame. The proposition now before us assumes that the elective franchise may be denied or abridged constitutionally on account of race or color, and thus sanctions the usurpation, thereby investing those who deny or abridge it with exclusive political control, without any regard to their number, though they may be a minority or even a small fraction of the people. ... 7. Again, I denounce the proposition as positively tying the hands of Congress in its interpretation of a Republican Government, so that under the guarantee clause it must recognize an Oligarchy, Aristocracy, Caste and Monopoly, founded on color, with the tyranny of taxation without representation as republican in character, which I insist they are not. At present the hands of Congress are not tied. Congress is free to act generously, nobly, truly, according to the highest idea of a republic, discountenancing all inequality of rights and the tyranny of taxation without representation. Let the pending proposition find a place in the Constitution, and the guarantee clause will be restrained in its operation. . . . In other words, the denial or abridgment of the elective franchise on account of race or color, and the tyranny of taxation without representation will be recognized in the Constitution as republican in character. * [See “Debates in the Philadelphia Constitutional Convention,” vol. 1, 1C, doc. 6, p. 184. —Ed.]

The House, agreeably to order, resumed the consideration of the bill (S. No. 61) entitled “An act to protect all persons in the United States in their civil rights and furnish the means of their vindication;” ... Mr. KERR. ... In the first section it declares “all persons born in the United States and not subject to any foreign Power, excluding Indians not taxed, to be citizens of the United States without distinction of color.” This declaration appears to me to be utterly vain. I cannot persuade myself that it can accomplish any effective result. It is not an exercise of any express power in the Constitution. It is not a law “to establish a uniform rule of naturalization.” Naturalization is the act of investing an alien with the rights and privileges of a native subject or citizen. (19 Howard R., 578.) But native subjects or citizens need no act of naturalization to enable them to receive from the hands of their Government an enlargement of their rights and privileges if that Government has power to enlarge them. The real purpose of this bill is to bestow such enlargement upon the African subjects of our Government. It ought to bear that name. Any other title is a misnomer. The act of naturalization requires some acts on the part of the person seeking it. It implies a subsisting relation to some other Government on his part which he desires to cast off; some allegiance or obligation which he desires to renounce. But such is not the case with any of the persons to be affected by this bill. I assume, therefore, that this declaration is entirely nugatory. But it has a purpose. It is designed to cover up and conceal from critical observation the real aim of this measure, which is to enlarge, by act of Congress, the rights and privileges of negroes, not as subjects of the Federal Government, but as subjects or citizens of the several States. Has Congress the power to do this? I deny it because I can find no warrant for it in the

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† Cong. Globe, 39th Cong., 1st Sess., 1262, 1268–72 (Mar. 8, 1866).

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“The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”

Constitution. But this question may properly be further considered in connection with the balance of the same section, which reads as follows: 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 slavery; and such citizens 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 equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.

It will not be claimed that this permits the citizen of Ohio who desires to become a citizen of Indiana to carry with him into the latter and enjoy there the “privileges and immunities” which he enjoyed in the former State. Chancellor Kent, speaking of this provision, says: “The laws and usages of one State cannot be permitted to prescribe qualifications for citizens, to be claimed and exercised in other States, in contravention to their local policy.”

This opinion is sustained by the decisions and opinions of other judges and statesmen too numerous to be cited here. (2 Kent, 71; 19 Howard R., 405.) It will hardly be claimed that this or any other provision gives Congress power to declare who shall be citizens of each State. Neither government can confer citizenship in the other. The provision in question only requires that the citizens of each State shall enjoy certain privileges in the other States to which they may temporarily or permanently remove; but not that citizens of the United States shall enjoy such privileges in the States. We should not confound the rights of citizenship which a State may confer within its own limits and the rights of citizenship as a member of the Union. ... In this view, I am fully sustained by that distinguished jurist whom I have once quoted. He says:

The phraseology of this provision was obviously dictated by a desire to find support for it in the second section of the fourth article of the Constitution, which provides that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” and in the last amendment of the Constitution abolishing slavery. So far as the last amendment is concerned, I shall not take time now to discuss it at any length. I hold that it gives no power to Congress to enact any such law as this or any other law, except such only as is necessary to prevent the reestablishment of slavery. ... But this act rests chiefly for support on the constitutional provision first cited, and is so understood by its author, Senator Trumbull, and I will now return to its consideration. This bill rests upon the theory that Congress has the right to declare who shall be citizens of the United States, and then to provide that such citizens shall enjoy in the States all the privileges and immunities allowed therein to the most favored class of citizens of such State. Does this right exist? ... But it is said that this bill is justified by section two, article four, of the Constitution. Let us analyze somewhat that provision:

“The article in the Constitution of the United States declaring that citizens of each State were entitled to all the privileges and immunities of citizens in the several States, applies only to natural-­born or duly naturalized citizens; and if they remove from one State to another, they are entitled to the privileges that persons of the same description are entitled to in the State to which the removal is made, and to none other. The privileges thus conferred are local and necessarily territorial in their nature.”—2 Kent, 71. To the same effect is the opinion of Justice Story:

“The intention of this clause was to confer on them, if one may so say, a general citizenship; to communicate all the privileges and immunities which the citizens of the same State would be entitled to under

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citizens in their right not to be deprived of life, liberty, or property without due process of law? ... The SPEAKER. The gentleman from Ohio [Mr. Bingham] is entitled to the floor, and has not yielded for that motion. ... Mr. BINGHAM. I move to amend the motion to recommit by adding the following:

the like circumstances.” Story’s Commentaries on Constitution, sec. 1806.

... Therefore if negroes remove from Massachusetts, or coolies from California, to Ohio or Indiana, they are entitled there to enjoy the same privileges and immunities which are accorded by those States respectively to negroes or coolies from any other State, “but to none other.” ... This bill rests upon a theory utterly inconsistent with and in direct hostility to every one of these authorities. It asserts the right of Congress to regulate the laws which shall govern in the acquisition and ownership of property in the States, and to determine who may go there and purchase and hold property, and to protect such persons in the enjoyment of it. The right of the State to regulate its own internal and domestic affairs, to select its own local policy, and make and administer its own laws for the protection and welfare of its own citizens, is denied. ... The gentleman from Pennsylvania [Mr. Thayer] has fairly won the distinction, in this debate, of having discovered a new fountain of congressional power. He informs us in effect that the first eleven amendments to the Constitution are grants of power to Congress; that they contain guarantees which it is the right and duty of Congress to secure and enforce in the States. Hitherto those amendments have been supposed, by lawyers, statesmen, and courts, to contain only limitations on the power of Congress. The history of the country teaches us that the people of the States feared that, by such vicious constructions as we now daily hear, Congress might usurp powers not granted to it, and thus peril the rights of the States and of their citizens; and therefore the States demanded these amendments as safeguards against encroachments on the part of the General Government. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power by the General Government were recommended. They were not intended to be, and they are not, limitations on the powers of the States. They are bulwarks of freedom, erected by the people between the States and the Federal Government, and this bill is an attempt to prostrate them. What right has Congress to invade a State, and dictate to it how it shall protect its

With instructions to strike out of the first section the words “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 slavery,” and insert in the thirteenth line of the first section, after the word “right” the words “in every State and Territory of the United States.” Also to strike out all parts of said bill which are penal, and which authorize criminal proceedings, and in lieu thereof to give to all citizens injured by denial or violation of any of the other rights secured or protected by said act an action in the United States courts with double costs in all cases of recovery, without regard to the amount of damages: and also to secure to such persons the privilege of the writ of habeas corpus.

46 US House, Debate, Civil Rights Bill, Speech of Columbus Delano (R-­OH) March 8, 1866*

The House having under consideration the bill (S. No. 61) entitled “An act to protect all persons in the United States in their civil rights and furnish the means of their vindication”— Mr. DELANO said: ... In my opinion the States lately in rebellion ought cheerfully and voluntarily to adopt and enforce by

* Cong. Globe, 39th Cong., 1st Sess., Appendix, 156–59 (Mar. 8, 1866).

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in a State court? Is it in the old Constitution? And if so, in what clause? Or is it in the amendment to the Constitution abolishing slavery? I desire to hear from the gentleman upon that point. ... Mr. WILSON, of Iowa. I place the power of Congress to secure to these citizens the right to testify in the courts upon the same basis exactly that I place the power of Congress to provide protection for the fundamental rights of the citizen commonly called civil rights, so that if the presence of a citizen in the witness-­box of a court is necessary to protect his personal liberty, his personal security, his right to property, he shall not be deprived of that protection by a State law declaring that his mouth shall be sealed and that he shall not be a witness in that court. That is one of the protective remedies which must run with these great civil rights belonging to every citizen. And I will say to the gentleman that when I come to close the discussion on this bill I shall enlarge somewhat on this point if the temper of the House at the time shall disclose a disposition to hear further discussion. Mr. DELANO. I do not feel myself answered. The gentleman has offered me some very general remarks. I will not say “glittering generalities,” because I do not wish to be offensive, but I want him to name the clause of the Constitution in which he finds the power. Mr. WILSON, of Iowa. If the gentleman had read my remarks at the opening of this debate he would have seen very distinctly the provision of the Constitution upon which I base this bill so far as it relates to persons who are liable to be reduced to a condition of slavery, and that is the amendment to the Constitution abolishing slavery and conferring an express delegation of power upon Congress. But I placed it upon a broader ground, and it was this: that these people, being entitled to certain rights as citizens of the United States, were entitled to protection in those rights, and that the power thus to protect them is necessarily implied from the entire body of the Constitution, which was made for the protection of these rights, and upon the duty of the Government to enforce and protect all those rights. I based the power of Congress to select the means in accordance with the doctrines laid down in the case of McCulloch, vs. The State of Maryland. Mr. DELANO. The duties of this Government rest upon the powers of the Government. The duties of this

local legislation all the important features of this bill. If they omit or refuse to do so, then Congress should enforce upon them these measures, provided we have the power to do so conferred by the Constitution. But if this power has not been granted, then the fundamental law should be amended so as to enable Congress to protect and secure the rights of all her citizens in any and in every State where unjust, unequal, and discriminating legislation calls for the increase of the powers of the General Government. In reference to the question of citizenship, which has been ably discussed by the chairman of the Judiciary Committee, I have no doubt. It needs no law, in my estimation, to make citizens of these emancipated people. They are citizens by law now; and our enactment can only declare the rights and privileges in this respect which already belong to them. But, sir, notwithstanding this, notwithstanding I regard them as entitled to citizenship, I have serious difficulties in my own mind in reference to the power of Congress, under the Constitution as it is, to pass the bill which is before us. I shall vote for it, if possible. If I can be brought to believe that there is a reasonable probability of its constitutionality, so that I can justify my conscience in turning over the question of the power of Congress to pass this bill to the courts, I shall sustain it; but without some further light upon the question than I now have, I do feel that there are such difficulties in the way as call for a careful examination of the provisions of this bill, in a constitutional point of view, by the gentlemen who control this House. ... [I]n my opinion the bill would be very much improved and relieved from many of its serious difficulties and objectionable features if it were amended in accordance with the proposition suggested by my colleague, [Mr. Bingham.] I think that, with this amendment, I could myself now, without any further light on the subject, vote for it. But we must discuss it as it is. ... These people are given the right to be parties to suits, to give evidence, to inherit, and so forth. Now, I desire to ask the honorable chairman of the Committee on the Judiciary under what clause of the Constitution he claims Congress to have power to declare who shall be competent to give evidence in State courts? . . . Now, sir, where is the authority in the fundamental law of this land for this Congress to declare who shall be witnesses 130

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Congress rest upon its constitutional powers, and those powers are to be derived from the Constitution if found at all. ... Mr. WILSON, of Iowa. I desire to ask this question: does the gentleman from Ohio [Mr. Delano] believe that persons as citizens of the United States are entitled to any rights? If they are entitled to any rights, are the great fundamental civil rights of life, liberty and property involved among them? And if they are entitled, as citizens of the United States, to those rights, are they entitled to protection of those rights from the hands of the Government? And should a State enact laws and attempt to enforce them which will deprive the citizens of the United States of those rights, may we not intervene to protect them in spite of those laws of the State? Mr. DELANO. I believe that the citizens of the States are entitled to many rights. I believe that those rights are to be guarantied and sustained and enforced by the laws of the States under the constitutions of the States, and by the Congress of the United States when there is power given by the Constitution of the United States to enforce those rights. But I do not believe that the rights of the States are utterly overwhelmed and dethroned. I know that for years we have been swinging the pendulum of public opinion toward the doctrine of State rights until it threatened the subversion of the Federal Government. And I stand here in my place to-­day to say that one of the most serious apprehensions I have, in the extreme of public opinion fluctuating from one point to another, is that we may fall into an error about as great and dangerous as that which has caused us these long years of bloody war. ... I suppose there are certain rights of citizenship that are exclusively within the control of the States, under the constitutions of the States. And by way of refreshing our memories in reference to the opinions of the fathers, I will call the attention of gentlemen to what Mr. Hamilton once said upon this subject. He once discussed this subject, and alluded to it in a way worthy of our attention to-­day. He was answering an objection made before the public that the clause of the Constitution giving Congress the power to make all laws rendered necessary by the specific grants of power might be abused. He went on to show that that clause did not

enlarge the powers of Congress, that it did not confer upon Congress anything that had not been specifically given. He says: “If there be anything exceptionable it must be sought for in the specific powers upon which the general declaration is predicated.”*

Thereby saying, what I say here to-­day, that the powers of Congress are specific powers, and that beyond those specific powers Congress cannot go without violating the Constitution. Following up that idea, he illustrates it, as follows: “The propriety of a law, in a constitutional light must always be determined by the nature of the power upon which it is founded. Suppose by some forced construction of its power, which indeed cannot easily be imagined, the Federal Govern‑ ment should attempt to vary the law of descent in a State, would it not be evident that in making such an attempt it had exceeded its jurisdiction?” —Federalist, No. 32.†

The SPEAKER pro tempore, (Mr. Patterson.) The time, twenty minutes, which the gentleman from New York [Mr. Raymond] yielded to the gentleman from Ohio [Mr. Delano] has now expired. Mr. DAVIS. I hope the time of the gentleman will be extended. Mr. BINGHAM. I do not desire to interrupt my colleague, [Mr. Delano.] But I desire to be heard in advocacy of the amendment to this bill which I have offered. Mr. RAYMOND. I am quite willing to yield the remainder of my hour to the two gentlemen from Ohio, [Mr. Delano and Mr. Bingham,] and they can arrange its division between themselves. ... Mr. BINGHAM. I will yield to my colleague [Mr. Delano] and trust to the indulgence of the House for an opportunity to be heard upon this subject. Mr. DELANO. * [This is a quote from Federalist, No. 33 (Hamilton). See vol. 1, 1B, doc. 2. —Ed.] † [Federalists 32 and 33 were originally published as a single essay (Federalist No. 32). In later editions of the papers, the essay was broken into two separate essays. Delano is presumably relying on an early source that combines both essays as No. 32. —Ed.] 131

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... In my opinion, if we adopt the principle of this bill we declare 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 which will swallow up all or nearly all of the rights of the States with respect to the property, the liberties, and the lives of its citizens. This thought is illustrated by Mr. Madison; and for the purpose of directing the attention of the chairman of the Judiciary Committee [Mr. Wilson] to it, I will read the language of Mr. Madison from No. 45 of the Federalist: “The powers reserved to the Federal 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.”

Any one who has studied the Constitution of the United States knows that it was designed to establish a Government with limited powers, powers restricted to the necessary objects of its existence and the proper discharge of the great duties devolving upon it. It was never designed to take away from the States the right of controlling their own citizens in respect to property, liberty and life. If we now go on in a system of legislation based upon the assumption that Congress possesses the right of supreme control in this respect, I submit whether we are not assisting to build up a consolidated Government in view of the powers of which we may well tremble. ... Now, sir, I proceed to inquire whether the constitutional amendment abolishing slavery confers on Congress the power to enact a measure of this character. That amendment provides— . . .* Now, what is this provision of the Constitution? It is the abolition of slavery and involuntary servitude. It is authority by Congress to pass proper legislation for the enforcement of that principle. Now, sir, can it be claimed by fair reasoning that the right to testify is * [Here Delano quotes the text of the Thirteenth Amendment. —Ed.]

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necessarily incident to freedom? If this can be claimed, then there is authority to pass this law. Mr. WILSON, of Iowa. The gentleman will pardon me for an interruption. Suppose that the only person witnessing a state of facts necessary to be given in court for the protection of life, liberty, and property should be a black man, has the State the right to say that that man, the only person living who has a knowledge of the facts to protect a citizen, should have no right to testify? Mr. DELANO. I acknowledge myself surprised that the chairman of the Committee on the Judiciary of the House of Representatives of the United States of America should rise and ask me, when I am discussing a principle of power, whether an extreme case, such as he has put, would be an authority for violating the fundamental law of the land! Mr. WILSON, of Iowa. No, sir; I ask whether the Constitution of the United States is so framed that the rights of protection cannot be established in the laws made by Congress? Mr. DELANO. Does the gentleman believe the Constitution of the United States is so framed as to say this power may be exercised? The simple question now is, whether the right to testify as a witness is a necessary incident to freedom. ... Mr. Speaker, I was about to remark there are certain powers that may be exercised under this amendment of the Constitution vastly important to the emancipated race. I have anticipated unfriendly legislation in the South; but I have felt a consolation in the power of Congress under this clause of the Constitution to prevent certain unfriendly legislation which has presented itself to my imagination; for instance, to establish in the South a system of peonage, or any system of laws that would interfere with the liberty of this race. It would then be in the power of Congress under this clause of the Constitution to modify and prevent such legislation. We proclaimed freedom to this race, and reserved to ourselves the power to enforce it, but we did not reserve to ourselves the power to enter the States and regulate the domestic relations of life, liberty, and property. We did reserve to ourselves the power of preventing unfriendly legislation that would interfere with liberty. No lawyer who will reason like a lawyer, I think, can take that act and tell me that he believes that the right to testify or to inherit is a necessary condition of freedom, because we know from the whole history of our State legislation that such discriminations have been made.

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Aliens have been prevented from inheriting, and discriminations in inheritance, as well as in the right to testify, have been made by State legislation, and no one thought it an interference with the liberty of the citizen. I must say, therefore, that I do not see how we can sustain the principles of this bill. I said in the outset that I wanted to see the provisions of this bill adopted or enforced upon the South, and it was with this thought before me that I introduced, at an early day of the session, an amendment to the Constitution requiring each State to provide for the security of life, liberty, and property, and the rightful pursuit of happiness, and giving to Congress power to enforce these rights where the States withheld them. That, in my estimation, is a better theory of proceeding on this subject than the one introduced by my colleague,* which proposes to vest that power in Congress at once; because I want Congress to exercise no more power over the local legislation of the States than is absolutely necessary, and I would not allow it to go in the first instance to secure these rights, but allow it to go only when the States refuse to apply and give such security under the fundamental law of the nation. I am still of the opinion that if this subject is developed and investigated as it should be, that if we do anything upon this subject at all, we had better do it by taking up the amendment to the Constitution offered by my colleague, [Mr. Bingham,] now postponed till April, modifying it in the form I have suggested, and making it the fundamental law, and then proceeding to secure the rights of these persons in a way in which we shall not be trampling down or endangering the fundamental law of the land. ... I will not detain the House any longer. I have not been able to illustrate as I would, had I had time, this question. But I have endeavored to present it in such a form as will awaken investigation and bring the minds of members to the consideration of this important question. For it is just as important that we should not swing back into the assertion of powers in this Government that do not belong to it, as that we should not go to the other extreme of asserting the existence of powers in a State that do not belong to it. Let us take a calm, philosophical, and statesmanlike view of the condition of things in which we are placed; proceeding under no impulse such as has necessarily grown up under the terrible training we have had; proceeding with caution and deliberation, and * [That is, Mr. Bingham. —Ed.]

taking care to preserve the constitutional rights both of the States and of the General Government. We have a Government of which we may be proud, a Government that is to live, a Government that rests upon granted powers of a limited character; and if we sustain it and do not make it a tyranny, do not convert it into a usurpation, it will be a Government loved by the people, cherished by the people, wherein civil liberty will be established, I trust, forever, and the power of man for self-­government be illustrated.

47 US Senate, Debate, Apportionment Amendment, Fails Two-­Thirds Vote March 9, 1866†

The PRESIDENT pro tempore. The joint resolution (H.R. No. 51) proposing to amend the Constitution of the United States is now before the Senate, and the Senator from Maine [Mr. Fessenden] is entitled to the floor. Mr. FESSENDEN. ... The honorable Senator from Indiana, [Mr. Hendricks,] in the address which he made upon this subject, commented somewhat severely, as I thought upon an expression used by me on a former occasion, that as I could not accomplish by direct action what I wished to accomplish in this regard, namely, to bring about a state of things which would allow the ballot to such colored men as were proper persons to exercise it, since I could not accomplish it in the way I would like to do, by directly abolishing all distinctions of color, I was willing to reach it by this resolution, which in my judgment would, after a series of years, greater or less, accomplish the same purpose indirectly; and he asked me very distinctly and very significantly whether it was proper to accomplish by indirection that which we could not accomplish directly. ... I adhere to the same position; and I think, with regard to the present question, it is better to accomplish it

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† Cong. Globe, 39th Cong., 1st Sess., 1275, 1281–89 (Mar. 9, 1866).

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and I believe that is the ground. My honorable friend from Massachusetts objects because it is unjust to the negro. Why, sir, just imagine all the gentlemen opposed to this resolution met in caucus together, and looking around at each other, would there not be a smile on all their faces to see what company they had fallen into? ... The PRESIDENT pro tempore. The proposed amendment to the amendment being withdrawn, the question is on the amendment of the Senator from Massachusetts. Mr. SUMNER. No action having been taken upon my amendment, I suppose it is competent for me to modify it. The PRESIDENT pro tempore. It is. Mr. SUMNER. I modify it so as to make it read, after the enacting clause, as follows:

indirectly than by force. The question is a great one, involving the right of a large number of people to exercise suffrage. Many of them, perhaps, would be fit to exercise it to-­day; many more may become fit to exercise it in the process of time, when they shall have enjoyed their freedom and received instruction. A system aiming at their development and at the full exercise, as they become capable of using it in process of time, of this great privilege of suffrage, which aims to accomplish it gradually, kindly, mildly, and not at once by forcible imposition, against all the prejudices and feelings and habits of the people with whom they are connected and among whom they live, would be better, in my judgment, and tend more to the peace of the community and the eventual public good and safety of the nation. And I will say to the honorable Senator, if it can be accomplished by the indirect action of an amendment to the Constitution which appeals to the interest of those who have hitherto been and who are yet probably the ruling class among whom this large population is situated, and with whom they live, it will be far better than to run the risk of all the difficulties that might arise from a forcible imposition, which would create ill-­feeling, generate discord, and produce, perhaps, undying animosities. ... Mr. President, I may say—it is well that I should say it—that I have no expectation that this proposed amendment of the Constitution will be adopted. I know, to use a common expression, that noses have been counted. I know that enough has been found to prevent the necessary majority of two thirds, if we may trust to what gentlemen have said outside and what they have made a matter of boast. It may be so; I think it likely is so; but still I know very well that a very decided majority of this Senate is in favor of the amendment; and while I stand with nearly all those friends with which I have been so proud to act in relation to the matter, I do not feel disposed to abandon the support of it, but to leave it to take its fate, according to the judgments of men. ... I cannot close, however, without saying how amusing seems to me the character of the opposition to this joint resolution. That opposition is composed of men of all shades of opinion. The Democrats on the other side of the House oppose it because they say it is unjust to the southern States. My honorable friends who have been some time with us are opposed to it because—I do not know why, except that the President is opposed to it,

That in all States lately declared to be in rebellion there shall be no oligarchy, aristocracy, caste, or monopoly invested with peculiar privileges and powers; and there shall be no denial of rights, civil or political, on account of color or race, but all persons shall be equal before the law, whether in the courtroom or at the ballot-­box. And this statute, made in pursuance of the Constitution, shall be the supreme law of the land, anything in the Constitution or laws of any such State to the contrary notwithstanding.

... The question being taken by yeas and nays on the amendment proposed by Mr. Sumner, resulted— yeas 8, nays 39; as follows: YEAS—Messrs. Brown, Chandler, Howe, Pomeroy, Sumner, Wade, Wilson, and Yates—8. NAYS—Messrs. Anthony, Buckalew, Clark, Conness, Cowan, Cragin, Creswell, Davis, Dixon, Doolittle, Fessenden, Foster, Grimes, Guthrie, Harris, Henderson, Hendricks, Johnson, Kirkwood, Lane of Indiana, Lane of Kansas, McDougall, Morgan, Morrill, Nesmith, Norton, Nye, Poland, Ramsey, Riddle, Saulsbury, Sherman, Sprague, Stewart, Stockton, Trumbull, Van Winkle, Willey, and Williams—39. ABSENT—Messrs. Foot, Howard, and Wright—3. So the amendment was rejected. ... The joint resolution was ordered to a third reading, and was read the third time, as follows: 134

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Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of the said Legislatures, shall be valid as part of said Constitution, namely: Article —. 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: Provided, That whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation.

48 US House, Debate, Civil Rights Bill, Speech of John Bingham in Opposition March 9, 1866*

The House, agreeably to order, resumed the consideration of the bill (S. No. 61) entitled “An act to protect all persons in the United States in their civil rights and furnish the means of their vindication;” on which Mr. Wilson, of Iowa, was entitled to the floor. Mr. WILSON, of Iowa. I yield thirty minutes of my time to the gentleman from Ohio, [Mr. Bingham.] Mr. BINGHAM. Mr. Speaker, it may be said that the objections which I deem it to be my duty to urge against the passage of the bill pending before the House apply to the instructions I have introduced by way of amendment to the pending motion to recommit; but I have this to say to gentlemen on that subject. Admitting that the objections do apply to the instructions which I have had the honor to submit by way of amendment to the pending motion, if the gentleman who reports the bill urges these objections against the instructions for its amendment, it is a confession, sir, on his own part that this bill ought not to pass with or without amendment. The House by recommitting with the instructions proposed will not be concluded but may finally reject the bill as amended or reject the amendments proposed and substitute others which may be less objectionable. Mr. Speaker, on that subject I beg leave further to say, that although the objections which I urge against the bill must, in the very nature of the case, apply to the proposed instructions, I venture to say no candid man, no right-­minded man, will deny that by amending as proposed the bill will be less oppressive, and therefore less objectionable. Doubting, as I do, the power of Congress to pass the bill, I urge the instructions with a view to take from the bill what seems to me its oppressive and I might say its unjust provisions.

The PRESIDENT pro tempore. This joint resolution having been read three times, the question is, Shall it pass? This vote must, in the opinion of the Chair, be taken by yeas and nays under the Constitution. The yeas and nays were taken, with the following result: YEAS—Messrs. Anthony, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Foster, Grimes, Harris, Howe, Kirkwood, Lane of Indiana, McDougall, Morgan, Morrill, Nye, Poland, Ramsey, Sherman, Sprague, Trumbull, Wade, Williams, and Wilson—25. NAYS—Messrs. Brown, Buckalew, Cowan, Davis, Dixon, Doolittle, Guthrie, Henderson, Hendricks, Johnson, Lane of Kansas, Nesmith, Norton, Pomeroy, Riddle, Saulsbury, Stewart, Stockton, Sumner, Van Winkle, Willey, and Yates—22. ABSENT—Messrs. Foot, Howard, and Wright—3. The PRESIDENT pro tempore. On this question the yeas are 25 and the nays 22. Two thirds of the Senators present not having voted for the joint resolution, it is not agreed to.

* Cong. Globe, 39th Cong., 1st Sess., 1290–96 (Mar. 9, 1866). [On March 10, 1866, the New York Times reported Bingham’s speech, including his declaration that “enforcement of the bill of rights was the want of the Republic.” See New York Times, Mar. 10, 1866, 1. —Ed.] 135

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Mr. Speaker, the instructions moved by me are these: Amend the motion to recommit by adding the following: With instructions to strike out of the first section the words “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 slavery,” and insert in the thirteenth line of the first section, after the word “right” the words “in every State and Territory of the United States.” Also to strike out all parts of said bill which are penal, and which authorize criminal proceedings, and in lieu thereof to give to all citizens injured by denial or violation of any of the other rights secured or protected by said act an action in the United States courts with double costs in all cases of recovery, without regard to the amount of damages; and also to secure to such persons the privilege of the writ of habeas corpus.

As I propose to take nothing for granted by favoring this amendment, but to submit this proposition in the least objectionable form to the final decision of the Federal tribunals of the country, I beg leave to suggest to my honorable friend from Iowa, [Mr. Wilson,] who knows me well enough to know that I make no captious objection to any legislation in favor of the rights of all before the law, to consider, if this bill be recommitted, the propriety of providing therein for a final appeal of all questions of law arising under it to the Supreme Court of the United States. Having said this much, Mr. Speaker, I proceed to present to the consideration of the House my objections to the bill. And, first, I beg gentlemen to consider that I do not oppose any legislation which is authorized by the Constitution of my country to enforce in its letter and its spirit the bill of rights as embodied in that Constitution. I know that the enforcement of the bill of rights is the want of the Republic. I know if it had been enforced in good faith in every State of the Union the calamities and conflicts and crimes and sacrifices of the past five years would have been impossible. But I feel that I am justified in saying, in view of the text of the Constitution of my country, in view of all its past interpretations, in view of the manifest and declared intent of the men who framed it, the enforcement of the bill of rights, touching the life, liberty, and property of every citizen of the Republic within every

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organized State of the Union, is of the reserved powers of the States, to be enforced by State tribunals and by State officials acting under the solemn obligations of an oath imposed upon them by the Constitution of the United States. Who can doubt this conclusion who considers the words of the Constitution: “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people?” The Constitution does not delegate to the United States the power to punish offenses against the life, liberty, or property of the citizen in the States, nor does it prohibit that power to the States, but leaves it as the reserved power of the States, to be by them exercised. The prohibitions of power by the Constitution to the States are express prohibitions, as that no State shall enter into any treaty, &c., or emit bills of credit, or pass any bill of attainder, &c. The Constitution does not prohibit States from the enactment of laws for the general government of the people within their respective limits. Mr. Speaker, I would further remark in this connection, I honor the mover of this bill for the purpose he seeks to attain, which is to compel the exercise in good faith by the States of this reserved power. I cast no reflection upon the honorable committee of this House, in seeking to remedy, if possible, the great wrongs that have hitherto been inflicted upon citizens of the United States, I may say in almost every State of the Union, by State authority, and inflicted, too, in the past, without redress. I am with him in an earnest desire to have the bill of rights in your Constitution enforced everywhere. But I ask that it be enforced in accordance with the Constitution of my country. Has the Congress of the United States the power to pass and enforce the bill as it comes to us from the committee? Has the Congress of the United States the power to declare, as this bill does declare, in the words which I propose to strike out, that there shall be no discrimination of civil rights among citizens of the United States in any State of the United States, on account of race, color, or previous condition of slavery. I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-­born citizen; but, sir, I may be allowed to say further, that I deny that the Congress of the United States ever had the power or color of

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power to say that any man born within the jurisdiction of the United States, not owing a foreign allegiance, is not and shall not be a citizen of the United States. Citizenship is his birthright, and neither the Congress nor the States can justly or lawfully take it from him. But while this is admitted, can you declare by congressional enactment as to citizens of the United States within the States that there shall be no discrimination among them of civil rights? What are civil rights? I know the learning and ability of the honorable chairman of the Judiciary Committee, [Mr. Wilson.] It was my good fortune to be associated with him two years on that important and responsible committee, and I take pleasure in bearing witness to-­ day to the integrity, fidelity, and ability with which he discharged all his duties. I respectfully submit to that gentleman, that by all authority the term “civil rights” as used in this bill does include and embrace every right that pertains to the citizen as such. Why, sir, the very origin of the term “civil” ought to satisfy gentlemen on this point, that it has relation to the rights and all the rights of the citizen. I submit that the term civil rights includes every right that pertains to the citizen under the Constitution, laws, and Government of this country. The term “citizen” has had a definite meaning among publicists ever since the days of Aristotle. He interpreted and rendered that term to signify a person who was a partner in the government of the country. Under the Constitution of the United States every natural-­born citizen of the Republic is, in some sense, a partner in the Government, although he may take no active part in it. A distinction is taken, I know very well, in modern times, between civil and political rights. I submit with all respect that the term “political rights” is only a limitation of the term “civil rights,” and by general acceptation signifies that class of civil rights which are more directly exercised by the citizen in connection with the government of his country. If this be so, are not political rights all embraced in the term “civil rights,” and must it not of necessity be so interpreted? Blackstone, whose Commentaries on the common law are so exact in definition, uses in that classic of the law the terms “civil liberty” and “political liberty” everywhere as synonymous. It never occurred to him that there was a colorable distinction between them. If civil rights has this extent, what, then, is proposed by the provision of the first section? Simply to strike down by congressional enactment every State constitution which makes a discrimination on account of race

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or color in any of the civil rights of the citizen. I might say here, without the least fear of contradiction, that there is scarcely a State in this Union which does not, by its constitution or by its statute laws, make some discrimination on account of race or color between citizens of the United States in respect of civil rights. I know there are some exceptions. I cannot stop to mention them within the thirty minutes of time allowed me or to make clearer what I have said. I say with some few exceptions every State in the Union does make some discrimination between citizens of the United States, either by its constitution or its statute laws, in respect of civil rights on account of race or color. I desire to call the attention of the House to the fact that the honorable gentleman who reported this bill in the Senate, and for whom I have the highest respect, had the candor to admit to me the other day that the franchise of office, according to all the authorities, is a civil right, and in my opinion by every fair interpretation of the Constitution it can rightfully be conferred upon no man in any State save upon a citizen of the United States. By the constitution of my own State neither the right of the elective franchise nor the franchise of office can be conferred upon any citizen of the United States save upon a white citizen of the United States. What do you propose to do by this bill? You propose to make it a misdemeanor, punishable upon conviction by fine and imprisonment in the penitentiary, for the Governor of Ohio to obey the requirements of the constitution of the State, which requires that none shall be elected, and therefore none commissioned, to office in that State save white citizens of the United States. I understand very well, from private conversation that I have had with my learned friend, the chairman of the Judiciary Committee, that he does not look on this clause in the first section as an obligatory requirement. I have no time to undertake to discuss that question, but I submit that it is as much obligatory as any other clause of the section. The clause is imperative. It is in the language of law. It provides that— 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 ­slavery.

That is as obligatory as any other portion of the section. If it is not obligatory, what objection has the gentleman to striking it out? If it is obligatory, it must

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be stricken out or the constitutions of the States are to be abolished by your act, or, what is the same thing, their enforcement by the State officers charged with that duty made a crime for which they are to be imprisoned. I deny the power of Congress to make an error of judgment in a State officer a crime to be punished by imprisonment. However honest, however just, however humane the purposes of the gentleman may be in presenting this penal provision of the bill, I deny the power of Congress to enact obedience to a State law which has been passed and is enforced in good faith into a crime. This is the further provision of the first section:

been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine not exceeding $1,000, or imprisonment not exceeding one year, or both.

And such citizens 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 equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

I say, with all my heart, that that should be the law of every State, by the voluntary act of every State. The law in every State should be just; it should be no respecter of persons. It is otherwise now, and it has been otherwise for many years in many of the States of the Union. I should remedy that not by an arbitrary assumption of power, but by amending the Constitution of the United States, expressly prohibiting the States from any such abuse of power in the future. Instead of sending out such amendment to the people we are asked to remedy this State wrong by enacting in the second section of this bill as follows: That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject or cause to be subjected any inhabitant [citizen] of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have

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Mr. Speaker, the word “inhabitant” is printed in the second section in mistake for “citizen.” I say this upon the suggestion of the chairman of the committee. If this is to be the language of the bill, by enacting it are we not committing the terrible enormity of distinguishing here in the laws in respect to life, liberty, and property between the citizen and stranger within your gates? Do we not thereby declare the States may discriminate in the administration of justice for the protection of life against the stranger irrespective of race or color? Sir, that is forbidden by the Constitution of your country. The great men who made that instrument, when they undertook to make provision, by limitations upon the power of this Government, for the security of the universal rights of man, abolished the narrow and limited phrase of the old Magna Charta of five hundred years ago, which gave the protection of the laws only to “free men” and inserted in its stead the more comprehensive words, “no person;” thereby obeying that higher law given by a voice out of heaven: “Ye shall have the same law for the stranger as for one of your own country.” Thus, in respect to life and liberty and property, the people by their Constitution declared the equality of all men, and by express limitation forbade the Government of the United States from making any discrimination. This bill sir, with all respect I submit, departs from that great law. The alien is not a citizen. You propose to enact this law, you say, in the interests of the freedmen. But do you propose to allow these discriminations to be made in States against the alien and stranger? Can such legislation be sustained by reason or conscience? With all respect to every gentleman who may be a supporter of it, I ask, can it be sanctioned? Is it not as unjust as the unjust State legislation you seek to remedy? Your Constitution says “no person,” not “no citizen,” “shall be deprived of life, liberty, or property,” without due process of law. If the bill of rights, as has been solemnly ruled by the Supreme Court of the United States, does not limit the powers of States and prohibit such gross injustice by States, it does limit the power of Congress and prohibit any such legislation by Congress.

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But, sir, on yesterday, the honorable gentleman from Pennsylvania [Mr. Broomall]—than whom there is no more candid or just gentleman in the House—treated this measure as though it was a bill simply for the protection of freedmen in their rights for the time being in the late insurrectionary States. That is a great mistake. It applies to every State in the Union, to States which have never been in insurrection, and is to be enforced in every State of the Union, not only for the present but for all future time, or until it shall be repealed by some subsequent act of Congress. It does not expire by virtue of its own limitation; it is intended to be permanent. And let me here suggest to the House that this bill stands in strange contrast with the solemn action of the Senate and of the House in that just and righteous bill known as the Freedmen’s Bureau bill. I shall not now take up the time of the House to read the seventh and eighth sections of that bill. But I beg leave to remark to the House, and I ask consideration to the fact, that the seventh and eighth sections of the Freedmen’s Bureau bill enumerate the same rights and all the rights and privileges that are enumerated in the first section of this bill, and for a violation of those rights and privileges within any of the insurrectionary States they impose the same penalty, and no other, than that which is imposed by the second section of this bill. But it contains this remarkable provision, that the jurisdiction conferred by the seventh and eighth sections upon the Freedmen’s Bureau to inflict these penalties and enforce the rights enumerated shall cease and determine upon the restoration of those insurrectionary States to their constitutional relations with the United States, and the establishment therein of the courts. ... This jurisdiction shall cease, and in no event be exercised in any State, after said State shall have been fully restored in all its constitutional relations to the United States. What was that but a solemn declaration by the Senate and House of Representatives to the whole world that during the insurrectionary condition of the States we have the power, and the duty rests upon us, to enforce these rights of person and citizen, in behalf not only of those freedmen but of refugees and of all men within the limits of the insurrectionary district, by the establishment of this extraordinary bureau of justice known as the Freedmen’s Bureau? What was it but the solemn conviction and declaration of Congress that with the restoration of those States to their constitutional relations, and the establishment of courts of

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justice therein, our powers in the premises cease, and under the Constitution of the country freedmen and refugees alike are dependent for justice and their rights upon the civil administrators of the law within those respective States? Why did not the Congress declare in that bill that upon the restoration of the civil authority within those States and when the courts of the United States therein shall no longer “be stopped in the peaceable course of justice,” the jurisdiction thus conferred should be exercised by the courts of the United States? Why, on the contrary, did the Congress solemnly enact by that bill that upon such restoration this jurisdiction for the protection of refugees and freedmen should cease and determine? It was a confession by solemn and formal enactment that in that event your judicial power in the premises is ended. It was that, sir, and nothing but that. I would be ashamed, sir, to go to your tribune, and take upon my soul the oath prescribed by the Constitution, if I thought this Government had not the power to establish tribunals of justice within the insurrectionary districts during the time of insurrection and until the duly organized State governments were restored for the protection of life, liberty, and property, to all men alike. Hence, sir, I stand by the Freedmen’s Bureau bill; and standing by that bill I hold it up this day before the House as a point, blank condemnation of the attempt to assert this great power over States duly organized, and sustaining their full constitutional relation to the Government of the United States, and in which the courts are not “disturbed or stopped in the peaceable course of justice.” This brings me, sir, to the closing remark which I propose to make on this subject, and that is this: that in the language of the “old man eloquent,” which I have had occasion more than once to quote upon this floor in the hearing of some of those who now honor me with their attention, in time of war, whether it be civil or foreign war, the public safety becomes the highest law; and tribunals of States and institutions of States, to use his own terse words, “go by the board for the time being.” But when peace is restored; when the courts of justice are opened; when her white-­robed ministers take the golden scales into their hands, justice is to be administered under the Constitution, according to the Constitution, and within the limitation of the Constitution. What is that limitation, sir? Simply this, that the care of the property, the liberty, and the life of the citizen, under the solemn sanction of an oath imposed by your Federal Constitution, is in the States, and not in the

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Federal Government. I have sought to effect no change in that respect in the Constitution of the country. I have advocated here an amendment which would arm Congress with the power to compel obedience to the oath, and punish all violations by State officers of the bill of rights, but leaving those officers to discharge the duties enjoined upon them as citizens of the United States by that oath and by that Constitution. Standing upon this position, I may borrow the words of the most distinguished man who was ever sent hither from the Old World to make a personal observation of the workings of our institutions, as truly descriptive of the American system: “centralized government, decentralized administration.” That, sir, coupled with your declared purpose of equal justice, is the secret of your strength and power. I hold, sir, that our Constitution never conferred upon the Congress of the United States the power— sacred as life is, first as it is before all other rights which pertain to man on this side of the grave—to protect it in time of peace by the terrors of the penal code within organized States; and Congress has never attempted to do it. There never was a law upon the United States statute-­ book to punish the murderer for taking away in time of peace the life of the noblest, and the most unoffending as well, of your citizens, within the limits of any State of the Union. The protection of the citizen in that respect was left to the respective States, and there the power is to-­day. What you cannot do by direction you cannot do by indirection. To show that I am not mistaken on this subject, I desire to read the language of one of those grand intellects who during life illustrated the jurisprudence of our country, and has left in his works a perpetual monument of his genius, his learning, and his wisdom. I read from the text of Chancellor Kent: “The judicial power of the United States is necessarily limited to national objects. The vast field of the law of property, the very extensive head of equity jurisdiction, the principal rights and duties which flow from our civil and domestic relations fall within the control, and we might almost say the exclusive cognizance of the State governments. We look essentially to the State courts for protection to all these momentous interests. They touch, in their operation, every chord of human sympathy, and control our best destinies. It is their province to reward and to punish. Their blessings and their

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terrors will accompany us to the fireside, and be in constant activity before the public eye.”—1 Kent, Lecture 19, sec. 446.

Sir, I have always so learned our dual system of Government by which our own American nationality and liberty have been established and maintained. I have always believed that the protection in time of peace within the States of all the rights of person and citizen was of the powers reserved to the States. And so I still believe. Now, what does this bill propose? To reform the whole civil and criminal code of every State government by declaring that there shall be no discrimination between citizens on account of race or color in civil rights or in the penalties prescribed by their laws. I humbly bow before the majesty of justice, as I bow before the majesty of that God whose attribute it is, and therefore declare there should be no such inequality or discrimination even in the penalties for crime; but what power have you to correct it? That is the question. You further say that in the courts of justice of the several States there shall, as to the qualifications of witnesses, be no discrimination on account of race or color. I agree that, as to persons who appreciate the obligation of an oath— and no others should be permitted to testify—there should be no such discrimination. But whence do you derive power to cure it by a congressional enactment? There should be no discrimination among citizens of the United States in the several States, of like sex, age, and condition, in regard to the franchises of office. But such a discrimination does exist in nearly every State. How do you propose to cure all this? By a congressional enactment? How? Not by saying, in so many words, which would be the bold and direct way of meeting this issue, that every discrimination of this kind, whether existing in State constitution or State law, is hereby abolished. You propose to make it a penal offense for the judges of the States to obey the constitution and laws of their States, and for their obedience thereto to punish them by fine and imprisonment as felons. I deny your power to do this. You cannot make an official act, done under color of law, and without criminal intent and from a sense of public duty, a crime. [Here the hammer fell.] ... Mr. WILSON, of Iowa.

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... The gentleman from Ohio tells the House that civil rights involve all the rights that citizens have under the Government; that in the term are embraced those rights which belong to the citizen of the United States as such, and those which belong to a citizen of a State as such; and that this bill is not intended merely to enforce equality of rights, so far as they relate to citizens of the United States, but invades the States to enforce equality of rights in respect to those things which properly and rightfully depend on State regulations and laws. My friend is too sound a lawyer, is too well versed in the Constitution of his country, to indorse that proposition on calm and deliberate consideration. He knows, as every man knows, that this bill refers to those rights which belong to men as citizens of the United States and none other; and when he talks of setting aside the school laws and jury laws and franchise laws of the States by the bill now under consideration, he steps beyond what he must know to be the rule of construction which must apply here, and as the result of which this bill can only relate to matters within the control of Congress. He says that we cannot interpose in this way for the protection of rights. Can we not? What are the great civil rights to which the first section of the bill refers? I find in the bill of rights which the gentleman desires to have enforced by an amendment to the Constitution that “no person shall be deprived of life, liberty, or property without due process of law.” I understand that these constitute the civil rights belonging to the citizens in connection with those which are necessary for the protection and maintenance and perfect 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. And now, sir, we are not without light as to the power of Congress in relation to the protection of these rights. In the case of Prigg vs. The Commonwealth of Pennsylvania—and this it will be remembered was uttered in behalf of slavery—I find this doctrine, and it is perfectly applicable to this case. The court said:

national Constitution and not in that of any State. It does not point out any State functionaries or any State action to carry its provisions into effect. The States cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation to insist that the States are bound to provide means to carry into effect the duties of the national Government nowhere delegated or intrusted to them by the Constitution. On the contrary, the natural, if not the necessary, conclusion is, that the national Government, in the absence of all positive provisions to the contrary, is bound, through its own proper department, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution. The remarks of Mr. Madison, in the Federalist, (No. 43,) would seem in such cases to apply with peculiar force. ‘A right,’ says he, ‘implies a remedy; and where else would the remedy be deposited than where it is deposited by the Constitution?’ meaning, as the context shows, in the Government of the United States.”

Now, sir, in relation to the great fundamental rights embraced in the bill of rights, the citizen being possessed of them is entitled to a remedy. That is the doctrine of the law as laid down by the courts. There can be no dispute about this. The possession of the rights by the citizen raises by implication the power in Congress to provide appropriate means for their protection; in other words, to supply the needed remedy. The citizen is entitled to the right of life, liberty, and property. Now, if a State intervenes and deprives him, without due process of law, of these rights, as has been the case in a multitude of instances in the past, have we no power to make him secure in his priceless possessions? When such a case is presented can we not provide a remedy? Who will doubt it? Must we wait for the perpetration of the wrong before acting? Who will affirm this? The power is with us to provide the necessary protective remedies. If not, from whom shall they come? From the source interfering with the right? Not at all. They must be provided by the Government of the United States, whose duty it is to protect the citizen in return for the allegiance he owes to the Government. Justice, reason, everything, asserts this as the true theory for the guidance of our action. This is in accord

“The fundamental principle applicable to all cases of this sort would seem to be that where the end is required the means are given; and where the duty is enjoined the ability to perform it is contemplated to exist on the part of the functionaries to whom it is intrusted. The clause is found in the

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with the dignity of government. Without it the Republic becomes an oppressor, exacting a discharge of duty by the citizen, in the absence of the power to return a protective compensation. I will now notice particularly the provisions of the amendment proposed by the gentleman from Ohio [Mr. Bingham] to the motion to recommit. I want no more complete assertion of the power to pass this bill as reported from the committee than the gentleman’s own amendment. What does he propose? To instruct the committee to report back this bill, striking out of the first clause the words “and there shall be no discrimination of 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 slavery;” and to insert in the eighth line of the first section, after the word “right,” the words “in every State and Territory of the United States;” leaving the section in every other respect precisely as reported by the committee. Now, sir, what rights does the gentleman propose to protect? Let his own instructions answer for him:

have gone, and assert the identical powers and principles which we have asserted. ... The question recurred on the motion* to recommit. Mr. BINGHAM demanded the yeas and nays. The yeas and nays were ordered. The question was taken; and it was decided in the affirmative—yeas 82, nays 70, not voting 31;

49 US House, Debate, Civil Rights Bill, Vote and Passage March 13, 1866†

Mr. WILSON, of Iowa, reported back from the Committee on the Judiciary, with amendments, the bill (S. No. 61) entitled “An act to protect all persons in the United States in their civil rights and furnish the means of their vindication.” The first amendment reported by the Committee on the Judiciary was read, as follows:

And such citizens 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 in every State and Territory of the United States 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 have equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.

Strike out, in lines six, seven, eight, and nine of section one, the following words: Without distinction of color, 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 slavery. So that the section will read as follows:

That all persons born in the United States and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens 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

Now, I want to know whether these rights are any greater than the rights which are included in the general term “life, liberty, and property.” And yet the gentleman admits by his instructions, and asks this House to indorse his admission, that the General Government may secure to citizens of the United States in every State the possession of these enumerated rights. I take the gentleman’s own instructions, and his argument in favor of them, and I apply them as arguments in support of the report of the Judiciary Committee. They go as far as we

* [That is, the motion of Mr. Wilson. —Ed.] † Cong. Globe, 39th Cong., 1st Sess., 1366–67 (Mar. 13, 1866). 142

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convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.

strikes out all of those general terms and leaves the bill with the rights specified in the section. Therefore the amendment referred to by the gentleman is unnecessary. ... Mr. WILSON, of Iowa, demanded the previous question on the passage of the bill. The previous question was seconded, and the main question ordered. Mr. HARRIS demanded the yeas and nays. The yeas and nays were ordered. The question was taken; and it was decided in the affirmative—yeas 111, nays 38, not voting 34; as follows: YEAS—Messrs. Alley, Allison, Ames, Anderson, James M. Ashley, Baker, Baldwin, Banks, Baxter, Beaman, Bidwell, Blaine, Blow, Boutwell, Bromwell, Broomall, Buckland, Bundy, Sidney Clarke, Cobb, Conkling, Cook, Cullom, Darling, Davis, Dawes, Delano, Deming, Dixon, Donnelly, Driggs, Dumont, Eliot, Farnsworth, Farquhar, Ferry, Garfield, Grinnell, Abner C. Harding, Hart, Hayes, Higby, Hill, Holmes, Hooper, Asahel W. Hubbard, Chester D. Hubbard, Demas Hubbard, John H. Hubbard, Hulburd, James Humphrey, Ingersoll, Jenckes, Julian, Kelley, Kelso, Ketcham, Kuykendall, Laflin, George V. Lawrence, William Lawrence, Loan, Longyear, Lynch, Marston, Marvin, McClurg, McRuer, Mercur, Miller, Moorhead, Morrill, Morris, Moulton, Myers, Newell, O’Neill, Orth, Paine, Perham, Pike, Plants, Price, Alexander H. Rice, Sawyer, Schenck, Scofield, Shellabarger, Sloan, Spalding, Starr, Stevens, Thayer, Francis Thomas, John L. Thomas, Trowbridge, Upson, Van Aernam, Burt Van Horn, Ward, Warner, Elihu B. Washburne, William B. Washburn, Welker, Wentworth, Whaley, Williams, James F. Wilson, Stephen F. Wilson, Windom, and Woodbridge—111. NAYS—Messrs. Ancona, Bergen, Bingham, Boyer, Brooks, Coffroth, Dawson, Denison, Glossbrenner, Good­ year, Grider, Aaron Harding, Harris, Hogan, Ed­ win N. Hubbell, Jones, Kerr, Latham, Le Blond, Mar­ shall, McCullough, Nicholson, Phelps, Radford, Samuel J. Randall, William H. Randall. Ritter, Rogers, Ross, Rousseau, Shanklin, Sitgreaves, Smith, Taber, Taylor, Thornton, Trimble, and Winfield—38. NOT VOTING—Messrs. Delos R. Ashley, Barker, Benjamin, Brandegee, Chanler, Reader W. Clarke, Culver, Defrees, Eckley, Eggleston, Eldridge, Finck, Griswold, Hale, Henderson, Hotchkiss, James R. Hubbell, James M. Humphrey, Johnson, Kasson, McIndoe, Mc-

Mr. WILSON, of Iowa. I wish to make one inquiry as to the effect of the recommitment of the bill on the amendments adopted when the bill was pending before the House a few days since. I desire to know whether those amendments remain as part of the bill. The SPEAKER. The amendments which were adopted remain of course in the bill. Those that were pending were recommitted with the bill for the action of the committee. Mr. WILSON, of Iowa. Mr. Speaker, the amendment which has just been read proposes to strike out the general terms relating to civil rights. I do not think it materially changes the bill; but some gentlemen were apprehensive that the words we propose to strike out might give warrant for a latitudinarian construction not intended. ... Mr. WILSON of Iowa. I am instructed by the same committee to move to add the following as a new section: And be it further enacted, That upon all questions of law arising in any case under the provisions of this act a final appeal may be taken to the Supreme Court of the United States.

... Mr. HILL. What has become of the amendment the gentleman promised me to move, that nothing in this bill contained should be construed to affect or interfere with the right of suffrage in the several States? Mr. WILSON, of Iowa. When the bill was up before I did offer such an amendment, that nothing in the bill contained should be construed to affect the rights of suffrage in the several States. I will explain. Some members of the House thought, in the general words of the first section in relation to civil rights, it might be held by the courts that the right of suffrage was included in those rights. To obviate that difficulty and the difficulty growing out of any other construction beyond the specific rights named in the section, our amendment 143

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Kee, Niblack, Noell, Patterson, Pomeroy, Raymond, John H. Rice, Rollins, Stilwell, Strouse, Robert T. Van Horn, Henry D. Washburn, and Wright—34. So the bill was passed.*

51 US Senate, President Andrew Johnson’s Message Accompanying Veto of the Civil Rights Bill

50 US Senate, Motion to Retroactively Exclude John Stockton

March 27, 1866§

March 22, 1866†

To the Senate of the United States: I regret that the bill which has passed both Houses of Congress, entitled “An act to protect all persons in the United States in their civil rights, and furnish the means for their vindication,” contains provisions which I cannot approve, consistently with my sense of duty to the whole people and my obligations to the Constitution of the United States. I am therefore constrained to return it to the Senate, the House in which it originated, with my objections to its becoming a law. By the first section of the bill, all persons born in the United States, and not subject to any foreign Power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, people of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is by the bill made a citizen of the United States. It does not purport to declare or confer any other right of citizenship than Federal citizenship. It does not purport to give these classes of persons any status as citizens of States, except that which may result from their status as citizens of the United States. The power to confer the right of State citizenship is just as exclusively with the several States as the power to confer the right of Federal citizenship is with Congress. The right of Federal citizenship thus to be conferred on the several excepted races before mentioned is now, for the first time, proposed to be given by law. If, as is claimed by many, all persons who are native-­born, already are, by virtue of the Constitution, citizens of the United States, the passage of the pending bill cannot be necessary to make them such. If, on the other hand, such persons are not citizens, as may be assumed

Mr. CLARK. I suppose the question before the Senate is upon the resolution submitted by the committee:‡ Resolved, That John P. Stockton was duly elected and is entitled to his seat as a Senator from the State of New Jersey, for the term of six years from the 4th day of March, 1865.

The PRESIDING OFFICER, (Mr. Anthony in the chair.) That is the question. Mr. CLARK. I move to amend the resolution by inserting the word “not” before the word “duly,” and also before the word “entitled;” so that it will read: Resolved, That John P. Stockton was not duly elected and is not entitled to his seat as a Senator from the State of New Jersey, for the term of six years from the 4th day of March, 1865.

* [On March 15, the Senate voted to concur with the House amendments, and, on March 16, the Civil Rights Bill was enrolled and sent to the president for signature. See Cong. Globe, 39th Cong., 1st Sess., 1413–16, 1452 (1866). —Ed.] † Cong. Globe, 39th Cong., 1st Sess., 1565 (Mar. 22, 1866). ‡ [That is, the Committee on the Judiciary. —Ed.]

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§ Cong. Globe, 39th Cong., 1st Sess., 1679–81 (Mar. 27, 1866).

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from the proposed legislation to make them such, the grave question presents itself, whether, when eleven of the thirty-­six States are unrepresented in Congress, at this time it is sound policy to make our entire colored population and all other excepted classes citizens of the United States? Four millions of them have just emerged from slavery into freedom. Can it be reasonably supposed that they possess the requisite qualifications to entitle them to all the privileges and immunities of citizens of the United States? Have the people of the several States expressed such a conviction? It may also be asked whether it is necessary that they should be declared citizens in order that they may be secured in the enjoyment of civil rights? Those rights proposed to be conferred by the bill are by Federal as well as State laws secured to all domiciled aliens and foreigners even before the completion of the process of naturalization, and it may safely be assumed that the same enactments are sufficient to give like protection and benefits to those for whom this bill provides special legislation. Besides, the policy of the Government, from its origin to the present time, seems to have been that persons who are strangers to and unfamiliar with our institutions and our laws should pass through a certain probation, at the end of which, before attaining the coveted prize, they must give evidence of their fitness to receive and to exercise the rights of citizens as contemplated by the Constitution of the United States. The bill, in effect, proposes a discrimination against large numbers of intelligent, worthy, and patriotic foreigners, and in favor of the negro, to whom, after long years of bondage, the avenues to freedom and intelligence have now been suddenly opened. He must, of necessity, from his previous unfortunate condition of servitude, be less informed as to the nature and character of our institutions than he who, coming from abroad, has to some extent at least, familiarized himself with the principles of a Government to which he voluntarily intrusts “life, liberty, and the pursuit of happiness.” Yet it is now proposed by a single legislative enactment to confer the rights of citizens upon all persons of African descent, born within the extended limits of the United States, while persons of foreign birth, who make our land their home, must undergo a probation of five years, and can only then become citizens upon proof that they are of “good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.”

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The first section of the bill also contains an enumeration of the rights to be enjoyed by these classes, so made citizens, “in every State and Territory in the United States.” These rights are, “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 have “full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens.” So, too, they are made subject to the same punishment, pains, and penalties in common with white citizens, and to none others. Thus a perfect equality of the white and black races is attempted to be fixed by Federal law, in every State of the Union, over the vast field of State jurisdiction covered by these enumerated rights. In no one of these can any State ever exercise 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 instance, that no white person shall intermarry with a negro or mulatto. Chancellor Kent says, speaking of the blacks, that “marriages between them and the whites are forbidden in some of the States where slavery does not exist, and they are prohibited in all the slaveholding States, and when not absolutely contrary to law, they are revolting, and regarded as an offense against public decorum.” I do not say this bill repeals State laws on the subject of marriage between the two races, for as the whites are forbidden to intermarry with the blacks, the blacks can only make such contracts as the whites themselves are allowed to make, and therefore cannot, under this bill, enter into the marriage contract with the whites. I cite this discrimination, however, as an instance of the State policy as to discrimination, and to inquire whether, if Congress can abrogate all State laws of discrimination between the two races in the matter of real estate, of suits, and of contracts generally, Congress may not also repeal the State laws as to the contract of marriage between the two races? 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 internal policy and economy of the respective States. They are matters which in each State concern the domestic condition of its people, varying in each according to its own peculiar circumstances, and the safety and well-­being of its own citizens.

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... I do not propose to consider the policy of this bill. To me the details of the bill seem fraught with evil. ... I now return the bill to the Senate, and regret that in considering the bills and joint resolutions—forty-­two in number—which have been thus far submitted for my approval, I am compelled to withhold my assent from a second measure that has received the sanction of both Houses of Congress. ANDREW JOHNSON Washington, D.C., March 27, 1866

53 US Senate, Civil Rights Bill, Veto Override April 6, 1866†

The PRESIDENT pro tempore. The question is, Shall the bill pass, the objections of the President of the United States to the contrary notwithstanding? The question must be taken by yeas and nays. As many as are in favor of the passage of the bill will say “yea,” those opposed will say “nay,” as their names are called. The Secretary proceeded to call the roll. Mr. Morgan’s vote in the affirmative was followed by applause in the galleries. The PRESIDENT pro tempore. Order will be preserved in the galleries. If there be any disturbance, they will be cleared: and the door-­keepers will take in charge any persons who commit disturbance. The call will proceed. The Secretary concluded the call of the roll; and the result was as follows: YEAS—Messrs. Anthony, Brown, Chandler, Clark, Conness, Cragin, Creswell, Edmunds, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana. Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague, Stewart, Sumner, Trumbull, Wade, Willey, Williams, Wilson, and Yates—33. NAYS—Messrs. Buckalew, Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, Lane of Kansas, McDougall, Nesmith, Norton, Riddle, Saulsbury, Van Winkle, and Wright—15. ABSENT—Mr. Dixon. The PRESIDENT pro tempore. The yeas being 33, and the nays 15, the bill has passed the Senate by the requisite constitutional majority, notwithstanding the objection of the President to the contrary.

52 US Senate, Exclusion of John Stockton March 27, 1866*

The PRESIDENT pro tempore. The question now is on the resolution as amended: Resolved, That John P. Stockton is not entitled to a seat as Senator from the State of New Jersey for the term of six years from the 4th of March, 1865.

... The result was then announced—yeas 23, nays 20; as follows: YEAS—Messrs. Brown, Chandler, Clark, Conness, Cragin, Creswell, Fessenden, Grimes, Howard, Howe, Kirk­wood, Lane of Indiana, Nye, Pomeroy, Ramsey, Riddle, Sherman, Sprague, Sumner, Wade, Williams, Wil­son, and Yates—23. NAYS—Messrs. Anthony, Buckalew, Cowan, Davis, Doo­little, Guthrie, Harris, Henderson, Hendricks, Johnson, Lane of Kansas, McDougall, Morgan, Nesmith, Nor­ton, Poland, Saulsbury, Trumbull, Van Winkle, and Willey—20. ABSENT—Messrs. Dixon, Foot, Foster, Morrill, Stew‑ art, Stockton, and Wright—7. So the resolution as amended was agreed to.

* Cong. Globe, 39th Cong., 1st Sess., 1677 (Mar. 27, 1866).

† Cong. Globe, 39th Cong., 1st Sess., 1809 (Apr. 6, 1866). 146

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and proceedings for the security of person and property. The bill does not declare who shall or shall not have the right to sue, give evidence, inherit, purchase, and sell property. These questions are left to the States to determine, subject only to the limitation that there are some inherent and inalienable rights, pertaining to every citizen, which cannot be abolished or abridged by State constitutions or laws. The first clause of section one provides:

54 US House, Civil Rights Bill, Speech of William Lawrence, Veto Override April 7, 1866*

Mr. LAWRENCE, of Ohio. ... This bill† has met with the executive veto. When it passed the House I was satisfied to record my vote in its favor without consuming time in discussion, leaving the measure to commend itself to the judgment of the world. It has already been debated somewhat at large. (See speeches of Wilson, and others, March 1, Globe, March 2; of Bingham, February 28, Globe, March 1; of Bingham and Shellabarger, March 9, Globe, March 10; Delano, March 8, Globe, March 13.) I will not therefore attempt a full discussion of it now, but content myself with briefly presenting some of the grounds upon which I will again perform the proudest act of my political life in voting to make this bill the law of the land. It is scarcely less to the people of this country than Magna Charta was to the people of England. It declares who are citizens. It does not affect any political right, as that of suffrage, the right to sit on juries, hold office, &c. This it leaves to the States, to be determined by each for itself. It does not confer any civil right, but so far as there is any power in the States to limit, enlarge, or declare civil rights, all these are left to the States. But it does provide that as to certain enumerated civil rights every citizen “shall have the same right in every State and Territory.” That is whatever of certain civil rights may be enjoyed by any shall be shared by all citizens in each State, and in the Territories, and these are: 1. To make and enforce contracts. 2. To sue, to be sued, and to be parties. 3. To give evidence. 4. To inherit, purchase, lease, sell, hold, and convey real and personal property. 5. To be entitled to full and equal benefit of all laws

“That all persons born in the United States, and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

This clause is unnecessary, but nevertheless proper, since it is only declaratory of what is the law without it. ... There is, then, a national citizenship. And citizenship implies certain rights which are to be protected, and imposes the duty of allegiance and obedience to the laws. ... The Continental Congress of 1774, composed of delegates from twelve colonies, in their Declaration of Rights, among other things, declared: “That the inhabitants of the English colonies of North America, by the immutable Laws of nature, the principles of the English constitution, and the several charters or compacts, have the following rights: “Resolved, That they are entitled to life, liberty, and property, and that they have never ceded to any sovereign Power whatever a right to dispose of either without their consent.”—Hurd on Habeas Corpus, chap. 5, p. 107. The Declaration of Independence affirms—

“That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights, Governments are instituted among men.”

The Constitution was established, as its preamble declares, to— “Promote the general welfare and secure the blessings of liberty.”

* Cong. Globe, 39th Cong., 1st Sess., 1832–37 (Apr. 7, 1866). † [That is, the Civil Rights Bill. —Ed.]

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All the law-­writers agree that every citizen has certain “absolute rights,” which include— “The right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered and frequently declared by the people of this country to be natural, inherent, and inalienable.”—1 Kent’s Commentaries, 599; Federalist, No. 84. In Wilkinson vs. Leland, 2 Pet. 657, Judge Story said: “The fundamental maxims of a free Government seem to require that the rights of personal liberty and private property should be held sacred. At least no court of justice in this country, would be warranted in assuming that the power to violate and disregard them—a power so repugnant to the common principles of justice and civil liberty—lurked under any general grant of legislative authority.”

(See Turrett vs. Taylor, 9 Cranch, 43; People vs. Morris, 13 Wend., 328; Taylor vs. Porter, 4 Hill, 147; Fletcher vs. Peck, 6 Cranch, 87.) The bill of rights to the national Constitution declares that: “No person” * * * * “shall be deprived of life, liberty, or property without due process of law, nor shall private property be taken for public use without just compensation.”

It has never been deemed necessary to enact in any constitution or law that citizens should have the right to life or liberty or the right to acquire property. These rights are recognized by the Constitution as existing anterior to and independently of all laws and all constitutions. Without further authority I may assume, then, that there are certain absolute rights which pertain to every citizen, which are inherent, and of which a State cannot constitutionally deprive him. But not only are these rights inherent and indestructible, but the means whereby they may be possessed and enjoyed are equally so. ... Every citizen, therefore, has the absolute right to live, the right of personal security, personal liberty, and the right to acquire and enjoy property. These are rights of citizenship. As necessary incidents of these absolute rights, there are others, as the right to make and enforce contracts, to purchase, hold, and enjoy property, and to

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share the benefit of laws for the security of person and property. Now, there are two ways in which a State may undertake to deprive citizens of these absolute, inherent, and inalienable rights: either by prohibitory laws, or by a failure to protect any one of them. If the people of a State should become hostile to a large class of naturalized citizens and should enact laws to prohibit them and no other citizens from making contracts, from suing, from giving evidence, from inheriting, buying, holding, or selling property, or even from coming into the State, that would be prohibitory legislation. If the State should simply enact laws for native-­born citizens and provide no law under which naturalized citizens could enjoy any one of these rights, and should deny them all protection by civil process or penal enactments, that would be a denial of justice. ... The question before us now is this: When the States deny to millions of citizens the means without which life, liberty, and property cannot be enjoyed, is the nation powerless to punish the great crime of denying civil rights constitutionally recognized and affirmed by national authority? That is, if a State, by her laws, says to whole classes of native or naturalized citizens, ‘“You shall not buy a house or a homestead to shelter your children within our borders;” “you shall be deprived of the means whereby life is preserved, whereby liberty is a boon, and whereby property is held sacred;” “you shall have no right to sue in our courts or make contracts”—in such cases, is the nation powerless to intervene in behalf of her own citizens, in behalf of humanity itself, to avert the annihilation of citizenship? Now, when this condition of affairs has been reached, I maintain that Congress may by law secure the citizens of the nation in the enjoyment of their inherent right of life, liberty, and property, and the means essential to that end, by penal enactments to enforce the observance of the provisions of the Constitution, article four, section two, and the equal civil rights which it recognizes or by implication affirms to exist among citizens of the same State. Congress has the incidental power to enforce and protect the equal enjoyment in the States of civil rights which are inherent in national citizenship. The Constitution declares these civil rights to be inherent in every citizen, and Congress has power to enforce the declaration. If it has not, then the Declaration of Rights is in vain, and we have a Government powerless to secure or

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protect rights which the Constitution solemnly declares every citizen shall have. And now let us consider these propositions briefly. The Constitution declares that—

“Remove from one State to another they are entitled to the privileges that persons of the same description are entitled to in the State to which the removal is made.”

“The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”

That is, distinctions created by nature of sex, age, insanity, &c., are recognized as modifying conditions and privileges, but mere race or color, as among citizens, never can. And this view Kent proceeds to recognize as to fundamental rights by citing with approval the case of Corfield vs. Coryell, 4 Wash. C. C, 380, and stating the rule of constitutional law to be—

I will concede that the courts have by construction limited the words “all privileges” to mean only “some privileges.” In a note to this section of the Constitution, in Brightly’s Digest, it is said:

“That the privileges and immunities conceded by the Constitution of the United States to citizens in the several States were to be confined to those which were in their nature fundamental, and belonged of right to the citizens of all free Governments. Such are the rights of protection of life and liberty, and to acquire and enjoy property,” &c. —2 Kent, 72.

“This is confined to those privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all free Governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign. They may all be comprehended 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 purpose of trade, agriculture, professional pursuits, or otherwise, to claim the benefit of the writ of habeas corpus, to institute and maintain actions of any kind in the courts of the States, to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions than arc paid by the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of principles deemed to be fundamental.”—Corfield vs. Coryell, 4 Wash. C. C. R., 380; Conner vs. Elliot, 18 Howard, 591; Murray vs. McCarty, 2 Munf., 303; United States vs. Williamson, 4 American Law Register, 19; People vs. Lemmon, 5 Law Rep., 489; Lawrence’s Wheaton on International Law, 909; Calhoun’s Speech, Senate, April 2, 1836; Sargent on Constitution, chap. 31 p. 348; chap. 31, p. 393, 2d ed.; 6 Pickering R., 92; 2 Story on Constitution, 605. Kent says that if citizens

And Judge Story, in commenting on article four, section two, of the Constitution, says: “The intention of this clause was to confer on them, [citizens,] if one may so say, a general citizenship; and to communicate all the privileges and immunities which the citizens of the same State would be entitled to under the like circumstances.”—Serg. on Constitution, chap. 31, p. 384; chap. 33, p. 393; Livingston vs. Van Ingen, 9 Johns R., 507; Abbott vs. Bayley, 6 Peck, 92.

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This clause of the Constitution asserts two things: 1. That there are “privileges and immunities of citizens.” 2. That “the citizens of each State” if they remove from one State to another “shall be entitled to all privileges and immunities of citizens” of the United States “in the” State to which they remove. The Constitution does not define what these privileges and immunities are; but all privileges and immunities are of two kinds, to wit, those which I have shown to be inherent in every citizen of the United States, and such others as may be conferred by local law and pertain only to the citizen of the State. But conceding, as the courts have held, that the privileges referred to in the Constitution are such as are fundamental civil rights, not political rights nor those dependent on local law, then to what extent shall they be

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enjoyed by a citizen of one State removing into another? Not simply so far as they may be enjoyed by “some portion” or “some description” of citizens, but “all the privileges and immunities of citizens;” that is, all citizens under the like circumstances. This section does not limit the enjoyment of privileges to such as may be accorded only to citizens of “some class,” or “some race,” or “of the least favored class,” or “of the most favored class,” or of a particular complexion, for these distinctions were never contemplated or recognized as possible in fundamental civil rights, which are alike necessary and important to all citizens, and to make inequalities in which is rank injustice. This clause of the Constitution therefore recognizes but one kind of fundamental civil privileges equal for all citizens. No sophistry can change it, no logic destroy its force. There it stands, the palladium of equal fundamental civil rights for all citizens. ... The national Government is the depositary of the power to enforce the enjoyment of these fundamental rights when denied or destroyed by State authority. In Prigg vs. Pennsylvania, 16 Peters’ Reports, 539, the Supreme Court, in discussing the fugitive slave clause of the Constitution, said:

“That is as obligatory as any other portion of the section. If it is not obligatory, what objection has the gentleman to striking it out? If it is obligatory, it must be stricken out or the constitutions of the States are to be abolished by your act, or, what is the same thing, their enforcement by the State officers charged with that duty made a crime for which they are to be imprisoned.”

Now, sir, he placed upon this provision of the bill an interpretation different from the committee who reported it. But for the purpose of obviating his objection this clause was stricken out and forms no part of the bill as it finally passed.*

55 S. S. Nicholas, “The Civil Rights Bill” April 12, 1866†

“An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication.” This title fully explains what the act in part attempts to do, but does not specify all that it attempts, for it attempts to define and even enlarge the civil rights of all persons residing within the several States, in contravention of the constitutions and laws of those States. Has Congress power to do this? That is the great question. Its discussion, as now proposed, will, for the sake of needful brevity, require the mere citation of indisputable fundamental propositions, instead of their vindication by argument. . . . for this purpose it will suffice to quote the following language of Madison, who is generally called the Father of the Constitution: “The powers delegated to the Federal Government are few and defined. Those which are to remain with the States are numerous and indefinite. The former will be exercised principally on international objects, as war, peace, negotiation, and foreign commerce. The powers

“The fundamental principles applicable to all cases of this sort would seem to be that where the end is required the means are given; and where the duty is enjoined the ability to perform it is contemplated to exist on the part of the functionaries to whom it is intrusted. . . .”

... The speech of my distinguished colleague, [Mr. Bingham, March 9,] has been extensively published in a mode to mislead the public judgment. The great weight of his argument was leveled against a single provision of the bill as it originally came from the Senate. In his speech he used this language: “It [the bill] provides that— “‘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 s­ lavery.’”

Having quoted this provision, he proceeds to remark on it as follows:

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* [On April 9, the House voted 122 to 41 (21 not voting) and successfully overrode President Johnson’s veto. See Cong. Globe, 39th Cong., 1st Sess., 1861 (1866). John Bingham is recorded as not voting. —Ed.] † Daily National Intelligencer (Washington, DC), May 8, 1866, 1.

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reserved to the several States will extend to all the objects which concern the lives, liberties, and property of the people, an internal order, improvement, and prosperity of the State.” This contemporaneous exposition of the theory of the Constitution by Madison, Hamilton, and the other authors of the Constitution, is sustained by the Supreme and all other Courts, by all commentators, by all lawyers and statesmen of any eminence, with no published opinions to the contrary from any respectable source. ... The bill of rights, or what are termed the guarantees of liberty, contained in the Federal Constitution, have none of them any sort of application to or bearing upon the State governments, but are solely prohibitions or restrictions upon the Federal Government. The recent attempt in Congress to treat them as guaranties against the State governments, with an accompanying incidental power to enforce the guaranties, is a surprising evidence of stolid ignorance of Constitutional law, or of a shameless effort to impose upon the ignorant.

any future payment of the rebel debt, which has already passed the House, is thought by Mr. Bingham to cover all the conditions necessary to the admission of the Southern States to representation in Congress, provided, of course, that the representatives shall be able to subscribe to such oaths as Congress may prescribe.

Washington, April 11.

56 “News of Proposed Amendments in the Joint Committee on Reconstruction,” Chicago Tribune April 16, 1866, pp. 1, 2

Washington, April 15

Another Proposition Among the most prominent propositions under consideration by the Committee on Reconstruction is one presented by Hon. John A. Bingham. It is in the form of an amendment to the Constitution, and is as follows: “No State shall pass or enforce any law which shall impair or deny any of 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 take private property for public use, without just compensation; nor deny the equal protection of the laws to all persons therein. And the Congress shall have power to pass all laws which shall be necessary and proper to carry into execution this provision.” This, in connection with the amendment guarding against

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A New Proposition. The following proposition, submitted by Hon. Robert Dale Owen, is now under consideration by the Reconstruction Committee. It is intended as an amendment to the Constitution. Section one declares that on and after the 4th of July, 1876, there shall be no discrimination on account of color; but that all male citizens of the age of twenty-­one years shall be legal voters at all elections, Federal and State. Section two provides that for the period of ten years from the fourth of July next, Representatives in Congress and electoral votes for President and Vice President, shall be apportioned according to the number of legal voters in the respective States, and after that period, by population, as at present. Section three declares that there shall be no discrimination of civil rights from and after the passage of this amendment, affirming in effect the constitutionality of the Civil Rights Bill. Section four provides that no obligations or liabilities incurred in aid of the rebellion or compensation for slaves emancipated by military authorities shall be paid by the United States or any State. To the margin is attached an enabling act which provides that when any one of the rebel States shall have ratified the foregoing amendment, and changed their constitutions and laws to correspond therewith, they shall be allowed to participate in legislation and their representatives be authorized to take their seats in Congress, without any other terms or provisions. It will be seen from the foregoing amendments that any state may enfranchise its colored citizens at any time within the next ten years, and it will thereby gain full representation, while those States which refuse to extend the franchise for the probationary term of ten years will only enjoy representation on the white basis. It is believed that many of the Southern States for the sake of securing increased representation in Congress and in the electoral college, would confer the right of suffrage upon blacks perhaps as soon as the next Congress.

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While the Radical members of Congress have not committed themselves to this plan, it is favorably regarded and is receiving serious thought.

57 Joint Committee, Thaddeus Stevens Introduces Five-­Section Constitutional Amendment April 21, 1866*

The Committee met pursuant to adjournment; absent, The Chairman, and Messrs. Harris and Conkling. Mr. Stevens moved that Mr. Johnson take the Chair in absence of the Chairman. The motion was agreed to. Mr. Grimes stated that Mr. Fessenden was recovering and would probably be out next week. On motion of Mr. Stevens it was Resolved, That in the opinion of this Committee it is expedient that the taking of testimony by the several subcommittees be concluded next week. Mr. Stevens said he had a plan of reconstruction, one not of his own framing, but which he should support, and which he submitted to the Committee for consideration. It was read as follows: A joint resolution proposing an amendment to the Constitution, and to provide for the restoration to the states lately in insurrection of their full political rights. Whereas, It is expedient that the States lately in insurrection should, at the earliest day consistent with the future peace and safety of the Union, be restored to full participation in all political rights; therefore, Be it resolved, by the Senate and House of Representatives of the United States of America in Congress assembled (two-­thirds of both Houses concurring), that the following Article be proposed to the Legislatures of the several states as an amendment to the Constitution of the United States, which, when ratified, by three-­ fourths of said legislatures, shall be valid as part of the Constitution, namely: * Journal of the Joint Committee, 82–88.

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Article — Section 1. 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. Sec. 2. From and after the fourth day of July, in the year one thousand eight hundred and seventy-­six, 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. Sec. 3. Until the fourth day of July, one thousand eight hundred and seventy-­six, no class of persons, as to the right of any of whom to suffrage discrimination shall be made by any state, because of race, color, or previous condition of servitude, shall be included in the basis of representation. Sec. 4. Debts incurred in aid of insurrection or of war against the Union, and claims of compensation for loss of involuntary service or labor, shall not be paid by any State nor by the United States. Sec. 5. Congress shall have power to enforce by appropriate legislation, the provisions of this article. And be it further resolved, That whenever the above recited amendment shall have become part of the Constitution, and any state lately in insurrection shall have ratified the same, and shall have modified its constitution and laws in conformity with the first section thereof, the Senators and Representatives from such state, if found duly elected and qualified, shall, after having taken the usual oath of office, be admitted as such: Provided, That no person who, having been an officer in the army or navy of the United States, or having been a member of the Thirty-­sixth Congress, or of the Cabinet in the year one thousand eight hundred and sixty, took part in the late insurrection, shall be eligible to either branch of the national legislature until after the fourth day of July, one thousand eight hundred and seventy-­six. Mr. Stevens said he had submitted the proposed amendment to the Constitution with the proposed legislation by Congress, to the Committee for action together; but it would be necessary to submit the two propositions separately to Congress for its action. The Committee then proceeded to consider the same. The question was upon agreeing to the proposed first section of the amendment. Mr. Bingham moved to amend the same by adding the following: “nor shall any state deny to any person

A. Drafting, doc. 57

within its jurisdiction the equal protection of the laws, nor take private property for public use without just compensation.” After discussion thereon The question was taken, and it was decided in the negative, yeas 5, nays 7, absent 3, as follows: Yeas—Messrs. Johnson, Stevens, Bingham, Blow and Rogers—5 Nays—Messrs. Grimes, Howard, Williams, Washburne, Morrill, Grider and Boutwell—7 Absent—Messrs. Fessenden, Harris and Conkling —3. So the amendment was not agreed to. The question was taken upon adopting the first section, and it was decided in the affirmative, yeas 10, nays 2, absent 3, as follows: Yeas—Messrs. Grimes, Howard, Johnson, Williams, Stevens, Washburne, Morrill, Bingham, Boutwell and Blow—10. Nays—Messrs Grider and Rogers—2. Absent—Messrs. Fessenden, Harris and Conkling —3. The first section was accordingly adopted. The question was upon adopting the second section. After discussion thereon The question was taken, and it was decided in the affirmative, yeas 8, nays 4, absent 3, as follows: Yeas—Messrs. Grimes, Harris, Williams, Stevens, Washburne, Morrill, Bingham and Blow—8. Nays—Messrs. Johnson, Grider, Boutwell and Rogers—4. Absent—Messrs. Fessenden, Harris and Conkling —3. So the second section was adopted. The question was then taken upon adopting the third section, and it was decided in the affirmative, yeas 9, nays, 3, absent 3, as follows: Yeas—Messrs. Grimes, Howard, Williams, Stevens, Washburne, Morrill, Bingham, Boutwell and Blow—9. Nays—Messrs. Johnson, Grider and Rogers—3. Absent—Messrs. Fessenden, Harris and Conkling —3. So the third section was adopted. The question was upon adopting the fourth section. Mr. Rogers moved to amend by striking out the words “by any state nor,” so that the clause would read—“shall not be paid by the United States.” The question was taken, and it was decided in the negative, yeas 3, nays 9, absent 3, as follows:

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Yeas—Messrs. Johnson, Grider and Rogers—3. Nays—Messrs. Grimes, Howard, Williams, Stevens, Washburne, Morrill, Bingham, Boutwell and Blow—9. Absent—Messrs. Fessenden, Harris and Conkling —3. So the amendment was not agreed to. Mr. Stevens moved to amend the section by inserting after the word “debts” the words “or obligations already incurred, or which may hereafter be,” so that it would read—“Debts or obligations already incurred or which may hereafter be incurred in aid of insurrection,” etc. The amendment was agreed to. The question was taken upon the section as amended, and it was decided in the affirmative, yeas 10, nays 2, absent 3, as follows: Yeas—Messrs. Grimes, Howard, Johnson, Williams, Stevens, Washburne, Morrill, Bingham, Boutwell and Blow—10. Nays—Messrs. Grider and Rogers—2. Absent—Messrs. Fessenden, Harris and Conkling —3. So the fourth section as amended was adopted. Mr. Bingham moved to insert as section five the following: “Sec. 5. 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.” After discussion thereon The question was taken, and it was decided in the affirmative, yeas 10, nays 2, absent 3, as follows: Yeas—Messrs. Grimes, Howard, Johnson, Williams, Stevens, Washburne, Morrill, Bingham, Boutwell and Blow—10. Nays—Messrs Grider and Rogers—2. Absent—Messrs. Fessenden, Harris and Conkling —3. So the section proposed by Mr. Bingham was adopted. The sixth section was read, giving Congress power to enforce the provisions of the article. The question was taken upon adopting the section, and it was decided in the affirmative, yeas 10, nays 2, absent 3, as follows: Yeas—Messrs. Grimes, Howard, Johnson, Williams, Stevens, Washburne, Morrill, Bingham, Boutwell and Blow—10. Nays—Messrs Grider and Rogers—2.

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Absent—Messrs. Fessenden, Harris and Conkling —3. So the sixth section was adopted.

Yeas—Messrs. Johnson, Bingham, Grider and Rogers —4. Nays—Messrs. Grimes, Howard, Williams, Stevens, Morrill, Conkling, Boutwell and Blow—8. Absent or not voting—Messrs. Fessenden, Harris and Washburne. So the proposition of Mr. Bingham was not agreed to.

58 Joint Committee, Proposed Constitutional Amendment

59 Joint Committee, Proposed Constitutional Amendment, Adoption of John Bingham’s Draft of Section One

April 25, 1866*

The Committee met pursuant to adjournment (Mr. Johnson in the chair); absent, Messrs. Fessenden and Washburne. ... Mr. Williams moved to amend the joint resolution by striking out the fifth section of the proposed amendment to the Constitution as follows: “Section 5. 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.” After discussion, The question was taken, and it was decided in the affirmative, yeas 7, nays 5, absent or not voting 3, as follows: Yeas—Messrs. Harris, Howard, Johnson, Williams, Grider, Conkling and Boutwell. Nays—Messrs. Stevens, Morrill, Bingham, Rogers and Blow—5. Absent or not voting—Messrs. Fessenden, Grimes and Washburne—3. So the amendment was agreed to. ... Mr. Bingham submitted for adoption by the Committee as a separate article of amendment to the Constitution, the section which had been stricken out of the one adopted by the Committee. After discussion, The question was taken, and it was decided in the negative, yeas 4, nays 8, absent or not voting 3, as follows:

April 28, 1866†

The Committee met pursuant to adjournment; all the members present. ... Mr. Stevens moved to strike out all of Section two of the proposed amendment to the Constitution of the United States as follows: “Sec. 2. From and after the fourth day of July, in the year 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.” And the following at the beginning of section three: “Until the fourth day of July, 1876.” So that the third section would then read, “No class of persons, as to the right of whom to suffrage discrimination shall be made by any State because of race, color or previous condition of servitude, shall be included in the basis of representation.” After discussion, The question was taken, and it was decided in the affirmative, yeas 12, nays 2, not voting 1, as follows: Yeas—Messrs. Grimes, Harris, Johnson, Williams, Stevens, Morrill, Grider, Bingham, Conkling, Boutwell, Blow, and Rogers—12. Nays—Messrs. Howard and Washburne—2. Not voting—The Chairman—1. So the motion to strike out was agreed to.

* Journal of the Joint Committee, 97–100.

† Journal of the Joint Committee, 100–114.

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Mr. Williams moved to strike out what had been section three, and to insert in lieu thereof 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 twenty-­one years of age, or in any way abridged, except for participation in rebellion 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 twenty-­one years of age.” After discussion, The question was taken, and it was decided in the affirmative, yeas 12, nays 3, as follows: Yeas—The Chairman, Messrs. Grimes, Harris, Johnson, Williams, Morrill, Grider, Bingham, Conkling, Boutwell, Blow and Rogers—12 Nays—Messrs. Howard, Stevens and Washburne—3. So the motion of Mr. Williams was agreed to. ... Mr. Bingham moved to strike out the first section of the proposed amendment to the Constitution, which was as follows: “Section 1. 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.” and to insert in lieu thereof the following: “Sec. 1. 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.” After discussion, The question was taken, and it was decided in the affirmative, yeas 10, nays 3, not voting 2, as follows: Yeas—Messrs. Johnson, Williams, Stevens, Washburne, Grider, Bingham, Conkling, Boutwell, Blow and Rogers—10. Nays—Messrs. Grimes, Howard and Morrill—3. Not voting—The Chairman and Mr. Harris—2. So the motion of Mr. Bingham was agreed to. ... The first question was upon reporting the joint reso-

lution proposing an amendment to the Constitution of the United States. The question was taken, and it was decided in the affirmative, yeas 12, nays 3, as follows: Yeas—The Chairman, Messrs. Grimes, Harris, Howard, Williams, Stevens, Washburne, Morrill, Bingham, Conkling, Boutwell and Blow—12. Nays—Messrs. Johnson, Grider and Rogers—3. So the motion to report the joint resolution was agreed to.

60 US House, Thaddeus Stevens Introduces Proposed Five-­Section Fourteenth Amendment April 30, 1866*

Mr. STEVENS. I am instructed by the joint committee on reconstruction to report a joint resolution proposing an amendment to the Constitution of the United States. ... A joint resolution proposing an amendment to the Constitution of the United States. Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States; which, when ratified by three fourths of said Legislatures, shall be valid as part of the Constitution, namely: Article —. Sec. 1. 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

* Cong. Globe, 39th Cong., 1st Sess., 2286–87 (Apr. 30, 1866). [On the same day, April 30, 1866, the New York Times published the proposed amendment in full. See “The Report of the Reconstruction Committee,” New York Times, Apr. 30, 1866, 1. —Ed.] 155

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within its jurisdiction the equal protection of the laws. Sec. 2. 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 twenty-­one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of male citizens shall bear to the whole number of such male citizens not less than twenty-­ one years of age. Sec. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States. Sec. 4. Neither the United States nor any State shall assume or pay any debt or obligation already incurred, or which may hereafter be incurred, in aid of insurrection or of war against the United States, or any claim for compensation for loss of involuntary service or labor. Sec. 5. The Congress shall have power to enforce by appropriate legislation the provisions of this article.

be asked to enact; and in another column we republish the whole from our issue of yesterday.* The scheme would seem sweeping enough to satisfy the most exacting Radical. It could hardly be much more sweeping, indeed, unless it provided for wholesale confiscation and the extermination or banishment of the Southern people. It requires the States to affirm the equality of whites and blacks in the eye of the law, in all that pertains to life, liberty, and property. It apportions representatives on the basis of the electoral population; included, however, those who may be disfranchised for participation in the rebellion. It disfranchises, until 1870, all who “voluntarily adhered to the late insurrection,” so far as voting for members of Congress and for the Federal President and Vice-­President is concerned. It forbids the payment of the rebel debt, or of compensation on account of emancipated slaves. . . . As a plan of pacification and reconstruction, the whole thing is worse than a burlesque. It might be styled a farce, were the country not in the midst of a very serious drama. Its proper designation would be “A plan to prolong indefinitely the exclusion of the South from Congress by imposing conditions to which the Southern people never will submit.” This being the obvious scope and tendency of the proposition, we are bound to assume that it clearly reflects the settled purpose of the Committee. So that the Joint Committee, appointed nearly five months ago to take exclusive charge of the question of reconstruction, now offer as the result of all their labors what would in fact render reconstruction forever impossible. There is an anomalous feature in the affair as it stands which of itself reveals the monstrous nature of the pretensions set up by the Committee. All the provisions of the proposed amendment imply the adoption of the extreme view in regard to the relation of the South to the Union. We must begin by assuming that what were States before the war are mere Territories now; or this attempt to dictate terms as the condition of recognition becomes undisguised usurpation. We must assume, in fact, that the South is at this moment neither more nor less than an aggregate of Territories waiting for admission as States, and from whose people Congress may therefore require compliance with certain proposals. And yet the amendment, on its face, declares the existence, as States, of all the States recently in rebellion,

61 “The Progress of Reconstruction— What the ‘Secret Directory’ Proposes,” New York Times April 30, 1866, p. 4

The Joint Committee on Reconstruction, so called, has finally ventured to promulgate a plan for the settlement of sectional difficulties and the restoration of harmony to the Union. It is in the shape of a constitutional amendment, with a couple of bills which Congress is to

* New York Times, Apr. 30, 1866, 1.

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of the subject. As it at present appears, the position of the Committee is utterly untenable. Aside from these points, the worthlessness of the Committee’s proposition is obvious. It cannot by any possibility effect anything. We may confidently take it for granted that the people of the South will never, under any circumstances, acquiesce in their own disfranchisement, for four years, in reference to all that relates to the Federal Government. There is room for difference of opinion on the general merits of the reconstruction problem; on this point there can be none. The South has taken its stand on the ground of a common citizenship, and it will never accept as the price of Congressional representation that which would be equivalent to an acknowledgment of four years’ serfdom, or inferiority, as the penalty of rebellion. Nor should it be asked to accede to terms of this nature. Punish the rebel leaders, if necessary, by banishment or otherwise. But to propose to punish a whole people to suit the partisan convenience of those who dictate the penalty is an outrage upon justice and common humanity. With all their errors and faults, the Southern people have shown that they are not cowards. They will not belie their nature by writing themselves down slaves, at the bidding of a Committee appointed to consider the question of reconstruction. If we would do aught to hasten the result which all moderate men admit to be exceedingly desirable, it is necessary without more ado to discard the idea of constitutional changes as the condition-­precedent of the readmission of the South to Congress. That is the primary step toward reconstruction, practically considered, and we should be prepared to take it on the ground of existing rights, subject only to the lawful test of individual fitness. To talk of wholesale and almost indiscriminate punishment as a preliminary measure—to call for concessions implying the relation of supplicants petitioning for favors, instead of citizens insisting upon their rights—to demand a confession of inferiority with one breath, while with another admitting the existence of constitutional equality—is to aggravate feelings already much too bitter, and to multiply difficulties which the Joint Committee have thus far vainly endeavored to overcome.

and presupposes the exercise by their several Legislatures of the highest constitutional attribute of State sovereignty. They have no right to representation in Congress, forsooth. They may not say yea or nay on the most trivial questions that come before Congress. They are not permitted to enjoy a particle of influence in matters affecting the finance, the trade, the industry, the foreign relations of the country, or any of its concerns, great or small. These privileges they are denied on the pretence that they are not within the Union, and therefore have no right to recognition as parts of the Union. Nevertheless, under the contemplated amendment, they are treated as sovereign States, whose ratification of the amendment is essential to its constitutional validity. They are to vote for or against a change in the Constitution of the Union, of which, on the Radical hypothesis, they are not at present members! Could absurdity go further? Could the folly of this fanaticism be made more manifest? From the dilemma into which the Committee have thus plunged there is no logical escape. If the Southern States are in a condition by their Legislatures to ratify or reject a Constitutional Amendment, they must of necessity be qualified to send Senators and Representatives to Congress, subject only to the judgment of either House as to the eligibility of the persons sent. A State which may assist in the sovereign task of molding the Constitution under which Congress acts may surely demand a voice in what the Constitution creates. The greater right covers the lesser right, in this as in other cases. On the other hand, if the Southern States are not entitled to admission to Congress—if the point be established, as the Radical doctors say it is, that these are States no longer, but Territories only, subject to the will of the conqueror—then it follows that they are not entitled to any lot or part in the business of amending the Constitution. Upon which horn shall the “Central Directory” be impaled? Shall we take it that this prodigious amendment—this mighty mouse brought forth by a mountain after five months’ parturition—does not mean what it says when it speaks of the States lately in rebellion as States still, with their sovereign functions unimpaired though for the time uninterrupted? Or shall we conclude that the doctrine of State suicide is abandoned, the doctrine of subjugation given up, and the criminal blunder of which the Radicals have been guilty in excluding the South from Congress, at length confessed? Let there be explicit answers upon these heads 157

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62 US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens Introducing the Amendment, Debate May 8, 1866*

The SPEAKER stated the first business in order to be the consideration of the constitutional amendment reported by the joint committee on reconstruction. ... Mr. STEVENS. The short time allowed by our resolution will suffice to introduce this debate. If unexpectedly there should be any objection to the proposed amendment to the Constitution I may ask the indulgence of the House to reply. The committee are not ignorant of the fact that there has been some impatience at the delay in making this report; that it existed to some extent in the country as well as among a few members of the House. It originated in the suggestions of faction, no doubt, but naturally spread until it infected some good men. This is not to be wondered at or complained of. Very few could be informed of the necessity for such delay. Beside, we are not all endowed with patience; some men are naturally restive, especially if they have active minds and deep convictions. But I beg gentlemen to consider the magnitude of the task which was imposed upon the committee. They were expected to suggest a plan for rebuilding a shattered nation—a nation which though not dissevered was yet shaken and riven by the gigantic and persistent efforts of six million able and ardent men; of bitter rebels striving through four years of bloody war. It cannot be denied that this terrible struggle sprang from the vicious principles incorporated into the institutions of our country. Our fathers had been compelled to postpone the principles of their great Declaration, and wait for their full establishment till a more propitious time. That time ought to be present now. But the public mind has been educated in error for a century. How difficult in a day to unlearn it. In rebuilding, it is necessary to * Cong. Globe, 39th Cong., 1st Sess., 2458–69 (May 8, 1866).

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clear away the rotten and defective portions of the old foundations, and to sink deep and found the repaired edifice upon the firm foundation of eternal justice. If, perchance, the accumulated quicksands render it impossible to reach in every part so firm a basis, then it becomes our duty to drive deep and solid the substituted piles on which to build. It would not be wise to prevent the raising of the structure because some corner of it might be founded upon materials subject to the inevitable laws of mortal decay. It were better to shelter the household and trust to the advancing progress of a higher morality and a purer and more intelligent principle to underpin the defective corner. I would not for a moment inculcate the idea of surrendering a principle vital to justice. But if full justice could not be obtained at once I would not refuse to do what is possible. The commander of an army who should find his enemy intrenched on impregnable heights would act unwisely if he insisted on marching his troops full in the face of a destructive fire merely to show his courage. Would it not be better to flank the works and march round and round and besiege, and thus secure the surrender of the enemy, though it might cost time? The former course would show valor and folly; the latter moral and physical courage, as well as prudence and wisdom. This proposition is not all that the committee desired. It falls far short of my wishes, but it fulfills my hopes. I believe it is all that can be obtained in the present state of public opinion. Not only Congress but the several States are to be consulted. Upon a careful survey of the whole ground, we did not believe that nineteen of the loyal States could be induced to ratify any proposition more stringent than this. I say nineteen, for I utterly repudiate and scorn the idea that any State not acting in the Union is to be counted on the question of ratification. It is absurd to suppose that any more than three fourths of the States that propose the amendment are required to make it valid; that States not here are to be counted as present. Believing, then, that this is the best proposition that can be made effectual, I accept it. I shall not be driven by clamor or denunciation to throw away a great good because it is not perfect. I will take all I can get in the cause of humanity and leave it to be perfected by better men in better times. It may be that that time will not come while I am here to enjoy the glorious triumph; but that it will come is as certain as that there is a just God. The House should remember the great labor which

A. Drafting, doc. 62

the committee had to perform. They were charged to inquire into the condition of eleven States of great extent of territory. They sought, often in vain, to procure their organic laws and statutes. They took the evidence of every class and condition of witness, from the rebel vice president and the commander-­in-­chief of their armies down to the humblest freedman. The sub-­committees who were charged with that duty—of whom I was not one, and can therefore speak freely—exhibited a degree of patience and diligence which was never excelled. Considering their other duties, the mass of evidence taken may well be considered extraordinary. It must be remembered, also, that three months since, and more, the committee reported and the House adopted a proposed amendment fixing the basis of representation in such way as would surely have secured the enfranchisement of every citizen at no distant period. That, together with the amendment repudiating the rebel debt, which we also passed, would have gone far to curb the rebellious spirit of secession, and to have given to the oppressed race their rights. It went to the other end of the Capitol, and was there mortally wounded in the house of its friends. After having received the careful examination and approbation of the committee, and having received the united Republican vote of one hundred and twenty Representatives of the people, it was denounced as “utterly reprehensible,” and “unpardonable;” “to be encountered as a public enemy;” “positively endangering the peace of the country, and covering its name with dishonor.” “A wickedness on a larger scale than the crime against Kansas or the fugitive slave law; gross, foul, outrageous; an incredible injustice against the whole African race;” with every other vulgar epithet which polished cultivation could command. It was slaughtered by a puerile and pedantic criticism, by a perversion of philological definition which, if when I taught school a lad who had studied Lindley Murray had assumed, I would have expelled him from the institution as unfit to waste education upon. But it is dead, and unless this (less efficient, I admit) shall pass, its death has postponed the protection of the colored race perhaps for ages. I confess my mortification at its defeat. I grieved especially because it almost closed the door of hope for the amelioration of the condition of the freedmen. But men in pursuit of justice must never despair. Let us again try and see whether we cannot devise some way to overcome the united forces of self-­righteous Republicans and unrighteous copperheads. It will not do

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for those who for thirty years have fought the beasts at Ephesus to be frightened by the fangs of modern catamounts. Let us now refer to the provisions of the proposed amendment. The first section prohibits the States from abridging the privileges and immunities of citizens of the United States, or unlawfully depriving them of life, liberty, or property, or of denying to any person within their jurisdiction the “equal” protection of the laws. I can hardly believe that any person can be found who will not admit that every one of these provisions is just. They are all asserted, in some form or other, in our Declaration or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that 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. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford “equal” protection to the black man. Whatever means of redress is afforded to one shall be afforded to all. Whatever law allows the white man to testify in court shall allow the man of color to do the same. These are great advantages over their present codes. Now different degrees of punishment are inflicted, not on account of the magnitude of the crime, but according to the color of the skin. Now color disqualifies a man from testifying in courts, or being tried in the same way as white men. I need not enumerate these partial and oppressive laws. Unless the Constitution should restrain them those States will all, I fear, keep up this discrimination, and crush to death the hated freedmen. Some answer, “Your civil rights bill secures the same things.” That is partly true, but a law is repealable by a majority. And I need hardly say that the first time that the South with their copperhead allies obtain the command of Congress it will be repealed. The veto of the President and their votes on the bill are conclusive evidence of that. And yet I am amazed and alarmed at the impatience of certain well-­meaning Republicans at the exclusion of the rebel States until the Constitution shall be so amended as to restrain their despotic desires. This amendment once adopted cannot be annulled without two thirds of Congress. That they will hardly get. And yet certain of our distinguished friends propose to admit State after State before this becomes a part of the Con-

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stitution. What madness! Is their judgment misled by their kindness; or are they unconsciously drifting into the haven of power at the other end of the avenue? I do not suspect it, but others will. The second section I consider the most important in the article. It fixes the basis of representation in Congress. If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. The effect of this provision will be either to compel the States to grant universal suffrage or so to shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive. If they do not enfranchise the freedmen, it would give to the rebel States but thirty-­seven Representatives. Thus shorn of their power, they would soon become restive. Southern pride would not long brook a hopeless minority. True it will take two, three, possibly five years before they conquer their prejudices sufficiently to allow their late slaves to become their equals at the polls. That short delay would not be injurious. In the mean time the freedmen would become more enlightened, and more fit to discharge the high duties of their new condition. In that time, too, the loyal Congress could mature their laws and so amend the Constitution as to secure the rights of every human being, and render disunion impossible. Heaven forbid that the southern States, or any one of them, should be represented on this floor until such muniments of freedom are built high and firm. Against our will they have been absent for four bloody years; against our will they must not come back until we are ready to receive them. Do not tell me that there are loyal representatives waiting for admission—until their States are loyal they can have no standing here. They would merely misrepresent their constituents. I admit that this article is not as good as the one we sent to death in the Senate. In my judgment, we shall not approach the measure of justice until we have given every adult freedman a homestead on the land where he was born and toiled and suffered. Forty acres of land and a hut would be more valuable to him than the immediate right to vote. Unless we give them this we shall receive the censure of mankind and the curse of Heaven. That article referred to provided that if one of the injured race was excluded the State should forfeit the right to have any of them represented. That would have hastened their full enfranchisement. This section allows the States to discriminate among the same class,

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and receive proportionate credit in representation. This I dislike. But it is a short step forward. The large stride which we in vain proposed is dead; the murderers must answer to the suffering race. I would not have been the perpetrator. A load of misery must sit heavy on their souls. The third section may encounter more difference of opinion here. Among the people I believe it will be the most popular of all the provisions; it prohibits rebels from voting for members of Congress and electors of President until 1870. My only objection to it is that it is too lenient. I know that there is a morbid sensibility, sometimes called mercy, which affects a few of all classes, from the priest to the clown, which has more sympathy for the murderer on the gallows than for his victim. I hope I have a heart as capable of feeling for human woe as others. I have long since wished that capital punishment were abolished. But I never dreamed that all punishment could be dispensed with in human society. Anarchy, treason, and violence would reign triumphant. Here is the mildest of all punishments ever inflicted on traitors. I might not consent to the extreme severity denounced upon them by a provisional governor of Tennessee—I mean the late lamented Andrew Johnson of blessed memory—but I would have increased the severity of this section. I would be glad to see it extended to 1876, and to include all State and municipal as well as national elections. In my judgment we do not sufficiently protect the loyal men of the rebel States from the vindictive persecutions of their victorious rebel neighbors. Still I will move no amendment, nor vote for any, lest the whole fabric should tumble to pieces. I need say nothing of the fourth section, for none dare object to it who is not himself a rebel. To the friend of justice, the friend of the Union, of the perpetuity of liberty, and the final triumph of the rights of man and their extension to every human being, let me say, sacrifice as we have done your peculiar views, and instead of vainly insisting upon the instantaneous operation of all that is right accept what is possible, and “all these things shall be added unto you.” I move to recommit the joint resolution to the committee on reconstruction. ... Mr. FINCK. Mr. Speaker, I promise to trespass upon the attention of the House but a very few minutes in what I have to say on this question. ...

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The time to which I am limited by the resolution of the House regulating this discussion; will prevent me from entering into an elaborate examination of this plan of the committee; and I shall have, therefore, to content myself with a very brief examination of it. The first section provides that—

ment. I trust gentlemen have no design in this proposition to disfranchise nine tenths of the voters of eleven States, unfairly to perpetuate their political power, or to influence the next presidential election. The fourth section provides that the rebel debt shall never be paid. Well, I suppose no one can be found in this country silly enough to believe that the rebel debt ever will be paid. These proposed amendments are accompanied by a bill which constitutes a part of the plan of the committee, the first section of which provides—

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.

Well, all I have to say about this section is, that if it is necessary to adopt it, in order to confer upon Congress power over the matters contained in it, then the civil rights bill, which the President vetoed, was passed without authority, and is clearly unconstitutional. The second section provides a new basis for the apportionment of Representatives to Congress, and is substantially the same which was defeated some weeks since in the Senate. The third section deprives all persons who voluntarily aided in the rebellion from voting for members of Congress and for electors for President and Vice President until the 4th day of July, 1870. The majority of the committee have made a most wonderful discovery, as disclosed in this third section of the proposed amendment, and have gravely announced to the world that a citizen of the United States who is now entitled to vote, but whose loyalty is suspected, would be an unsafe voter in 1866, or even in the presidential election of 1868, but will, after having his feelings soothed and his love of country encouraged by being branded as an outlaw and compelled to bear the burdens of Government, in the nicely adjusted and ascertained period of four years from the 4th day of July, 1866, which is a safe and reasonable time after the next presidential election, be converted into a true and loyal citizen, and will by that time become attached to the Government which had disfranchised him, and may then safely be intrusted with the great right of suffrage. Certainly this discovery deserves to be protected by some law. But, sir, this proposition to disfranchise these people by an amendment to the Constitution, to which you require the consent of the States whose citizens are thus to be disfranchised, is a most solemn admission that you have no authority to do so without such an amend-

That whenever the above recited amendments shall have become part of the Constitution, and any State lately in insurrection shall have ratified the same, and shall have modified its constitution and laws in conformity therewith, the Senators and Representatives from such State, if found duly elected and qualified, may, after having taken the required oaths of office, be admitted into Congress. Also, another bill, which declares—

Certain persons ineligible to office under the Government of the United States.

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Here, sir, in these propositions, we have the result of the wisdom and statesmanship of the distinguished gentlemen who compose the majority of the committee; and I say it without intending the least disrespect to these gentlemen, that in the future they will be quite unwilling to fix upon this report as the standard and measure of either their ability or statesmanship. Allow me to say, further, that this committee have had the opportunity, in the most important period of our history, to have inscribed their names among the first statesmen of the age, by a liberal and enlightened policy, which would have bound all sections of this great country together in the strong bond of mutual friendship and a restored Union. But they have let that opportunity pass. Stripped of all disguises, this measure is a mere scheme to deny representation to eleven States; to prevent indefinitely a complete restoration of the Union and perpetuate the power of a sectional and dangerous party. ... Mr. GARFIELD. Mr. Speaker, I do not rise to speak at length upon the pending measure, but for the purpose of entering a motion and submitting a few practical suggestions on the bill, and particularly in reference to the third section.

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With almost every proposition in the report of the joint committee on reconstruction I am pleased; yes, more than pleased, I am delighted that we have at least reached the firm earth, and planted our feet upon the solid granite, on enduring and indubitable principle. I believe we have at last a series of propositions which, in the main, will meet the approval of the American people as no others have ever done since the beginning of this struggle. I will not go into a general discussion of the reconstruction policy, but will confine myself in the few words I shall say to the joint resolution and the amendment to the Constitution proposed by it now before the House, and more particularly to one section of it. First let me say I regret more than I shall be able to tell this House that we have not found the situation of affairs in this country such, and the public virtue such that we might come out on the plain, unanswerable proposition that every adult intelligent citizen of the United States, unconvicted of crime, shall enjoy the right of suffrage. Sir, I believe that the right to vote, if it be not indeed one of the natural rights of all men, is so necessary to the protection of their natural rights as to be indispensable, and therefore equal to natural rights. I believe that the golden sentence of John Stuart Mill, in one of his greatest works, ought to be written on the constitution of every State, and on the Constitution of the United States, as the greatest and most precious of truths, “That the ballot is put into the hands of men, not so much to enable them to govern others as that he may not be misgoverned by others.” I believe that suffrage is the shield, the sword, the spear, and all the panoply that best befits a man for his own defense in the great social organism to which he belongs. And I profoundly regret that we have not been enabled to write it and engrave it upon our institutions, and imbed it in the imperishable bulwarks of the Constitution as a part of the fundamental law of the land. But I am willing, as I said once before in this presence, when I cannot get all I wish to take what I can get. And therefore I am willing to accept the propositions that the committee have laid before us, though I desire one amendment which I will mention presently. I am glad to see this first section here which proposes to hold over every American citizen, without regard to color, the protecting shield of law. The gentleman who has just taken his seat [Mr. Finck] undertakes to show that because we propose to vote for this section we therefore acknowledge that the civil rights bill was

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unconstitutional. He was anticipated in that objection by the gentleman from Pennsylvania, [Mr. Stevens.] The civil rights bill is now a part of the law of the land. But every gentleman knows it will cease to be a part of the law whenever the sad moment arrives when that gentleman’s party comes into power. It is precisely for that reason that we propose to lift that great and good law above the reach of political strife, beyond the reach of the plots and machinations of any party, and fix it in the serene sky, in the eternal firmament of the Constitution, where no storm of passion can shake it and no cloud can obscure it. For this reason, and not because I believe the civil rights bill unconstitutional, I am glad to see that first section here. As the nearest approach to justice which we are likely to be able to make, I approve of the second section that bases representation upon voters. I believe the section is now free from the objections that killed it in the Senate, and I have no doubt it will now pass that body. I am glad to see the fourth section here, which forever forbids the payment of the rebel debt. I am quite sure that on the proposition no man in this House will vote in the negative. Some may think the section unnecessary, but for abundant caution, and “to make assurance doubly sure,” let it become a part of the Constitution. It is to the third section that I wish to call the attention of the House for a moment. The gentleman from Maine [Mr. Blaine] has made a point against it, which has at least this value; that whatever may be the intention of the committee or of the House, the section is least susceptible of double construction. Some may say that it revokes and nullifies in part the pardons that have already been granted in accordance with law and the proclamations of the President. Others may say that it does not affect them, and will not apply to rebels who have been thus pardoned. Mr. STEVENS. Will the gentleman allow me to interrupt him a moment? Mr. GARFIELD. Certainly. Mr. STEVENS. I was not perhaps sufficiently explicit in what I said in answer to the interrogatory of the gentleman from Maine, [Mr. Blaine.] I admit that a pardon removes all liability to punishment for a crime committed. But there is a vast difference between punishing for a crime and withholding a privilege. Nobody will doubt that you may distinguish between classes in the privileges accorded to them if you think their enjoyment would be dangerous to the community. While I

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admit that the pardon will be full and operative so far as the crime is concerned, it confers no other advantages than an exemption from punishment for the crime itself. Mr. GARFIELD. I was about to say that if the section does not apply to those who have been pardoned, then it will apply to so small a number of people as to make it of no practical value; for the excepted classes in the general system of pardons form a very small fraction of the rebels. If the section does apply to those who have received the pardon, the objection of the gentleman from Maine [Mr. Blaine] may be worthy of consideration. But, without entering into the question of construction at all, and if there were no doubt or difference on that score, there are still other points to which I wish to call the attention of the House. If the proposition had been that those who had been in rebellion should be ineligible to any office under the Government of the United States, and should be ineligible to appointment as electors of the President and Vice President of the United States, or if all who had voluntarily borne arms against the United States had been declared forever incapable of voting for a United States officer, it would, in my judgment, be far more defensible. But what is the proposition? It is that— Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States.

Now, Mr. Speaker, this, in my judgment, is the only proposition in this resolution that is not bottomed clearly and plainly upon principle—principle that will stand the test of centuries, and be as true a thousand years hence as it is to-­day. If the persons referred to are not worthy to be allowed to vote in January of 1870, will they be worthy in July of that year? If the franchise were withheld until they should perform some specific act of loyalty, if it were conditioned upon any act of theirs, it would commend itself as a principle, but the fixing of an ordinary date, without any regard to the character or conduct of the parties themselves, is indefensible, and will not commend itself to the judgment of reflecting men. What is worse, it will be said everywhere that this is purely a piece of political management in reference to a presidential election. Now, I desire that what goes into our Constitution

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shall be the pure gold, unalloyed, untainted, having mingled with it nothing that will not stand the test of the ages. I fear that the proposition to which I have just referred might not stand that crucial test. But, sir, I invite the attention of the House to another consideration. Suppose this section should become a part of the Constitution, and suppose that it were entirely defensible as a matter of principle, I ask gentlemen how it is to be carried out in practice. If, under its operation in eleven States of the Union, nine tenths, and, in some instances, ninety-­nine hundredths of the adult population are to be disfranchised for four years, how do you propose to carry its provisions into practical execution? Will nine tenths of the population consent to stay at home and let one tenth do the voting? Will not every ballot-­box be the scene of strife and bloodshed? It may well be doubted whether this section can be carried out except by having a military force at every ballot-­box in eleven States of the Union. Are you ready to make the South a vast camp for four years more? I am ready to do that or anything else in the way of expense, if it is necessary as means of securing liberty and union; but I believe that great result can be achieved in a less expensive way. But it is evident to me that if this section becomes a part of the Constitution, it must either remain a dead letter or we must maintain a large army to enforce it. I do not, therefore, think it wise or prudent, both for practical reasons and for reasons of construction, as suggested by the gentleman from Maine, that the third section shall stand as a part of the Constitution in its present form. I am sure no member of this House will think that I make this motion with the least desire to favor or excuse in any way the men who have been in arms against the Government. I trust I do not need to make such a disclaimer to any person here, or among Union men anywhere. But I desire that any proposition which may be submitted by us for ratification by the States shall be so grounded in practical wisdom, that when it is presented to the American people, any man who votes against it will need to hide his face in shame. And there are thousands of men who only need some little excuse to justify themselves in voting against this great and good measure. I had nearly completed a substitute for this section providing that no person who had voluntarily adhered to the late insurrection should ever be eligible to any office under the United States, but as I have not perfected it I will not present it now. I hope, however, we may begin by striking out the section as it now stands.

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Is it now in order, Mr. Speaker, to move an amendment? The SPEAKER. A motion to amend is not in order pending a motion to recommit. Mr. GARFIELD. Then I move that the resolution be recommitted to the committee, with instructions to report it back to the House with the third section stricken out. Mr. RAYMOND. I inquire whether it will not be in order to call for a division on the different sections of this amendment. I think that will be the better way to test the sense of the House. Mr. GARFIELD. Mr. Speaker, I think when the vote comes to be taken on the motion to recommit, with instructions to strike out, the merits of the question will be tested by the House. Mr. RAYMOND. I ask whether it will be in order to call for a division now, or at any time. The SPEAKER. A resolution can be divided if each part can stand by itself, but a bill or joint resolution cannot be divided. It may be amended. Sometimes the House considers them section by section. They stand as a whole, and must be so considered. Mr. RAYMOND. Can this be considered section by section? The SPEAKER. It has been reported as a whole and must be acted on as a whole. Mr. RAYMOND. If this be considered section by section, then a two-­thirds vote will be required to carry each section. If amendment is necessary a majority can make it. The SPEAKER. A majority can amend it, but it will require two thirds to pass it. Mr. ELDRIDGE. I rise to make an inquiry. This being an amendment to the Constitution in three different particulars I ask whether it will not be required that we shall vote on them separately. I ask whether we can amend the Constitution by adding provisions grouped together in the manner in which these are without voting on each distinct proposition. Do not the Constitution and law require that they should be so voted on? The SPEAKER. They do not. The proposition is reported by the committee as a whole, and although it embrace different provisions, yet this House and the Senate and the people will vote on it as a whole. Mr. GARFIELD. It appears, then, that my motion is the only one that will bring us to a vote on this subject. The SPEAKER. The gentleman from Pennsylvania

[Mr. Stevens] has the right to withdraw his motion to recommit, and with the withdrawal of that motion the instructions would fall. Mr. GARFIELD. Would I not have the right to renew the motion? The SPEAKER. The gentleman could renew his instructions if the previous question were not sustained. Mr. GARFIELD. Would I not have the right to move to amend if the previous question were voted down? The SPEAKER. It would then be in order. Mr. GARFIELD. Now, Mr. Speaker, if the gentlemen who report this bill will put in a section, that all who participated in the rebellion shall forever be excluded from the right of elective franchise, in all cases relating to national offices, then I will say the proposition will be just and one we could stand upon as a matter of principle. Anything is just which excludes from privilege and power all those infamous men who participated in rebellion. The proposition, without any modification, without any limitation, would meet with my approval as one eminently just, if it could be practically carried out. But when you attempt to make it extend only for a limited period, you thereby acknowledge that as a principle they ought not to be excluded except for a limited period. I am unwilling to admit that proposition. As a matter of principle they should either be forever excluded, or allowed to come in when they comply with such conditions as the loyal people of this country, through their representatives in Congress may prescribe. I do not think we can so well stand a mixed proposition like this. Mr. DAWES. The gentleman proposes to submit practical views on this question, and in that view I ask him by what method the Congress of the United States could carry out that proposition if it is to deprive these parties of the right to vote in State affairs without erecting themselves into a tribunal in which to settle the question itself. I ask in that connection what tribunal is erected either in the Constitution or laws of the United States by which to settle the question in the appointment of electors of President and Vice President? Is there any tribunal provided either in the Constitution or the laws of the United States to test the question, should the time ever come when the elections of a President and Vice President depends upon the right of certain men to vote as electors or members of the Electoral College, and yet their right so to vote be disputed? It seems to me there is a defect somewhere in the 164

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the same spirit, and have helped to unite and rally the South against the Union. It does not become these men who have so long pursued these revolutionary schemes against liberty to charge this House with being revolutionary when it is struggling to restore both liberty and Union to the Republic. Mr. FINCK. Does the gentleman refer to what I said a few moments ago? Mr. GARFIELD. I do. Mr. FINCK. The gentleman has misstated what I said. I called upon the South to rally around the policy of Andrew Johnson; nothing about rebellion. Mr. GARFIELD. Well, Mr. Speaker, how much difference there is between the gentleman’s sentiment as I repeated it and as he himself states it I leave it to the House to judge. I understood him to call upon the people of the South to have the manliness to resist the operations of Congress and of the great Union party. Mr. FINCK. I did not use the word “resist.” Mr. GARFIELD. The gentleman can consult his notes. If he did not use the word he knows best, and I desire to be corrected if I misrepresent him. But I understood him to say that he trusted there was sufficient manhood in the people of the South to unite and resist the revolutionary schemes of this Congress, as he was pleased to denominate them. Mr. FINCK. One word. I said I hoped they would have the firmness and manliness of spirit to unite and reject this proposed amendment, which was calculated to subordinate them as States in the Union. Mr. GARFIELD. They have undertaken to reject and resist our scheme of restoring the Union for five years, and they propose now, and the gentleman by his own confession invites them to continue to unite and reject the scheme of the great Union party and of the people to build up liberty in this country and put down traitors and treason everywhere. I call upon the great Union party to stand together, and with all their manhood resist the revolutionary schemes not only of these rebels at the South, but of their coadjutors and abettors on this floor and everywhere who would unite with them and trample not only upon the prostrate body of the Union party, but, as I believe, of liberty herself. I have done. Mr. THAYER obtained the floor. Mr. FINCK. Will the gentleman allow me just one moment? Mr. THAYER. I will yield to the gentleman for a moment.

want of any tribunal known to the Constitution and laws by which you can ever determine this question, and the time may come when the whole nation will be rent in twain upon that question. Mr. GARFIELD. I am obliged to the gentleman from Massachusetts. I had noted that point, and in this running debate was about to overlook it, that in case this provision should prevail and there should come up at the next presidential election a number of electors from those eleven States whose vote would determine the fate of the election, and then in the Electoral College the question should be raised whether those electors were chosen by men who had been in rebellion, what tribunal have we to decide that question? Have we any committee of elections provided for in the Electoral College? Have we any court, have we any tribunal whatever under the Constitution to which that important question could be referred? It is not impossible that this section might bring us face to face with a new and most dangerous question, the solution of which is not easy to see. Mr. SCOFIELD. Will the gentleman yield for a question? Mr. GARFIELD. Yes, sir. Mr. SCOFIELD. The gentleman says that he will go for an amendment to the Constitution that shall disfranchise this class forever. Now, I wish to ask him, if he should get the report amended to suit him in that respect, how is he going to get a tribunal to decide that question any better than now? Mr. GARFIELD. The gentleman’s question does not involve me in any difficulty. I did not say I was in favor of putting such a clause into this amendment in view of all the circumstances, but I said that that proposition would be more just than the present one, and I would prefer it. There would be practical difficulties in the way of either proposition, but more I think in the way of this. Mr. HOTCHKISS. Will the gentleman yield? Mr. GARFIELD. Excuse me; I shall conclude my remarks in a few moments. My colleague [Mr. Finck] denounces this proposition and the whole scheme of the reconstruction committee as revolutionary, and calls upon the South to rally unitedly, and trusts they will have the manliness to resist it. It is not the first time that gentlemen on that side of the House have asked the South to rally against the North. During the last five years of bloody war their voices and their votes here and their actions elsewhere have been characterized by 165

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Mr. FINCK. I desire to say to my colleague, for whom I have the highest respect, that in my judgment there is but one party in this country that is a disunion party, and he belongs to it. [Laughter on the Republican side of the House.] Mr. GARFIELD. I am willing to stand by my record as a Union man. Mr. THAYER. ... With regard to the first section of the proposed amendment to the Constitution, I cannot conceive that any loyal man can hold any other view upon that subject than that which is indicated in the proposed amendments. The Constitution of the United States apportioned Representatives and direct taxes among the several States according to their respective numbers, and ordained that those numbers should be determined by adding to the whole number of free persons, including those held to service for a term of years and Indians not taxed, three fifths of all other persons. So stood the Constitution at the commencement of the rebellion. By that instrument three fifths of the class of persons known as slaves were counted in the enumeration which fixed the basis of representation in this House. How stands the Constitution now? Why, sir, the literal application of the Constitution to the present state of affairs makes this late slave population of the rebel States count in the representation in this body, not as three fifths, but as five fifths. Will any man say that that was contemplated by the framers of the Constitution? Will any man say that it was within the intention of the framers of that instrument that the late slaves in this country should, by an unforeseen state of public affairs, under a provision which enacted that they should count in the basis of representation as three fifths, come to count as five fifths, while at home they are counted politically as nothing? Yet this is what is proposed by those who oppose this amendment. It seems to me no man can maintain that proposition upon any principle of justice or sound political reasoning. What number of Representatives will this bring into this Chamber from the rebel States by way of increase over the former number that came here under the terms of the Constitution? About thirteen members. Is it not preposterous that after all the trials, the sacrifices, the sufferings, and the hardships caused by this great war for the Union the result of the success of the Government should be the increase of representation in this House on the part of those who made the rebellion, by adding thirteen mem-

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bers which they had not before the war? Is there a man here who dare go before the northern people and tell them that they are to be rewarded for the losses and sufferings which they have sustained by having thirteen additional members admitted into this body from the rebel States. I want to see the northern constituency that will send a Representative here who declares in plain terms that that is just and that he is in favor of it. Now, I ask gentlemen on the other side of the House why that should be done. If you say that this large class of persons have been transformed from their late condition of chattels to a condition in which they constitute a part of the element of the political fabric, then I can conceive that having added that much in population to the thinking, voting men of the southern States, it would be just and proper that that addition should be represented in this body. But we all know that such is not the case. In those States themselves the late slaves do not enter into the basis of local representation. In South Carolina they do not enter into the basis of representation in the Legislature of that State. And anybody who will read the new constitution of South Carolina will see that such is the case. Would it not be a most unprecedented thing that when this population are not permitted where they reside to enter into the basis of representation in their own State, we should receive it as an element of representation here; that when they will not count them in apportioning their own legislative districts, we are to count them as five-­fifths (no longer as three fifths, for that is out of the question) as soon as you make a new apportionment? I am not going to dwell upon that proposition. I believe it to be a proposition which the people of this country will understand without much discussion. You have only to enunciate that proposition in plain terms in order to secure for it the unqualified rebuke of every man who sustained the Government during the war for the Union. With regard to the second section of the proposed amendment to the Constitution, it simply brings into the Constitution what is found in the bill of rights of every State of the Union. As I understand it, it is but incorporating in the Constitution of the United States the principle of the civil rights bill which has lately become a law, and that, not as the gentleman from Ohio [Mr. Finck] suggested, because in the estimation of this House that law cannot be sustained as constitutional, but in order, as was justly said by the gentleman from Ohio who last addressed the House, [Mr. Garfield,]

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that that provision so necessary for the equal administration of the law, so just in its operation, so necessary for the protection of the fundamental rights of citizenship, shall be forever incorporated in the Constitution of the United States. But, sir, that subject has already been fully discussed, I have upon another occasion expressed my views upon it, and I do not propose to detain the House with any further remarks of my own upon it. I pass now to the third section of the proposed amendment, and here, sir, I am constrained to say that I do not believe it to be either proper or expedient to retain this section of the proposed amendment. I do not believe it for the reason which is contained in the preamble of one of the bills reported by the committee, the “bill to provide for the restoration to the States lately in insurrection of their full political rights.” The preamble of that bill, as reported by the committee, reads as ­follows: Whereas it is expedient that the States lately in insurrection should, at the earliest day consistent with the future peace and safety of the Union, be restored to full participation in all political rights.

I am opposed to the third section of the proposed amendment because I am in favor of the preamble of the bill. 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. I am opposed to it because I think it will keep this country, which we seek to pacify and to bring back to its old state of allegiance, in a state of constant turmoil and disaffection if it does not rekindle afresh the fires of civil war. ... The loyal people who have preserved the Government demand this amendment to the Constitution. In my judgment, they will never, if they can prevent it, suffer this Government to be long without this amendment to the Constitution, because it would be a most unjust and cruel return for all the sacrifices which they have made, to deny them this measure of justice. But, sir, they do not, in my judgment, demand as a further price of security that the rehabilitation of the southern people, with all the rights of freemen, shall be postponed until 1870. I agree that it is just and expedient and proper that you should fasten a badge of shame upon this great crime of rebellion by rendering ineligible to office under the United States those who have been leaders in the insurrection against the Government. But, sir, this third section goes much further than this. It de-

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clares that the masses of the people in the lately insurrectionary States—because it is idle to talk of the people in connection with the infinitesimal number of Union men in those States—shall be disfranchised. We know that the masses of the people there, with exceptions too small to be counted, did support the rebellion, and supported it with their whole heart. They supported it in the field; they supported it by the payment of taxes; they supported it by speech and by votes; they supported it in every village and by every fireside. Everybody knows that. We cannot deny it. There is no use in attempting to conceal the fact. And in dealing with a great subject like this it is better to look facts in the face and treat them as facts. The third section of the proposed amendment disfranchises until 1870 this whole people, while the measure itself is presented to us as a measure of universal pacification as well as a measure for future security. I do not believe, sir, that this feature of the measure which is proposed will meet the approval of our constituents. I believe that what the constituencies of the States now represented in Congress demand is, not prospective reconstruction, but immediate reconstruction with conditions that will secure the public safety. As I have already said, the great condition of public safety and security is the readjustment of the Constitution upon the subject of representation, that article of the Constitution which relates to the subject of representation having been pushed by the war from the original sphere of its operation, and which will, without amendment, operate in a manner never contemplated by the framers of the Constitution and with a degree of injustice to which the loyal States cannot consent to submit, and to which they will not submit if it can be prevented. What will continue to be the condition of the country if you adopt this feature of the proposed plan? Continual distraction, continued agitation, continued bickerings, continued opposition to the law, and it will be well for the country if a new insurrection shall not spring from its bosom. [Here the hammer fell.] ... Mr. BOYER. ... The effect of this amendment, if adopted, would be to disfranchise for a period of over four years nine tenths of the voting population of eleven States. Does any sane man believe such terms would be accepted? When in the history of nations did a free people voluntarily consent to such a degradation? It is a condition which could

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not be accepted with honor, and it is a condition, therefore, which is not fit to be proposed to any American community by an American Congress. But it is said that we have the rightful power to impose such a condition. If we had, its exercise would still be most unwise. It needs no argument to demonstrate that in statesmanship magnanimity is a nobler quality, and withal a sounder policy, than tyranny; and that it is better for a Government to call forth blessings by its clemency than to provoke the curses of a people by its oppression. But I deny altogether the right of the Federal Government to disfranchise the majority of the citizens of any State on account of their past participation in the rebellion. They who have committed treason are amenable to the laws, even after they have returned to their allegiance. But you cannot make new laws and a new Constitution to meet their case. Treason is undoubtedly a crime and may be punished, but by no bill of attainder or ex post facto law such as is provided in the amendment before the House. The ninth section of the first article of the Constitution declares— “No bill of attainder or ex post facto law shall be passed.”

That single prohibition is in itself a complete answer to all that has been said in support of the doctrine of the reconstruction committee. If any further answer were needed, it would be found in the ninth and tenth articles of the same instrument: “Art. 9. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. “Art. 10. The powers not delegated to the United States are reserved to the States respectively, or to the people.”

It will not do to say that the civil war has abrogated the constitutional rights of rebellious citizens, and that vengeance beyond the boundaries of what is written is to be justified to the Federal Government by right of conquest. Not only is such a doctrine opposed by the express prohibitions of the Constitution, but Congress and the whole nation stand pledged before the world against any such interpretation. ... I have considered the third section of the amendment reported by the committee, first, because it is the

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most objectionable of all the parts. I am opposed, however, to any further constitutional amendments as conditions to representation in Congress of any State in the Union. But my limited time will not allow me to dwell at much length upon the remaining sections. The first section embodies the principles of the civil rights bill, and is intended to secure ultimately, and to some extent indirectly, the political equality of the negro race. It is objectionable also in its phraseology, being open to ambiguity and admitting of conflicting constructions. The second section of the amendment is ostensibly intended to remedy a supposed inequality in the basis of representation. The real object is to reduce the number of southern representatives in Congress and in the Electoral College; and also to operate as a standing inducement to negro suffrage. It may indeed be said that there is some well-­founded objection to the present basis of representation. But while eleven States remain without any representation in either House of Congress we may well postpone all minor reforms until the Constitution as it now is shall be first applied in good faith by those self-­same Constitution menders. Justice and equality might also be promoted by carrying the reform into some other quarters. There can, for example, be no good reason founded in justice and equality why the six New England States, with a population of little over three millions, should have twelve votes in the Senate of the United States, and the State of New York, with a population of about four millions, only two. Would it not promote justice and equality to reconstruct in this respect New England’s lucky six as well as Dixie’s unlucky eleven? The fourth section of the amendment prohibits the assumption of the rebel debt by the United States or any of them. But I imagine there is no hot haste required to prohibit by a constitutional enactment the payment of this debt by the bankrupt States of the South; and I do not suppose that any man outside of a lunatic asylum ever dreamed it would be paid by any one else. Besides, a constitutional amendment has already been passed this session by Congress to the same effect. The fifth and last section of the amendment empowers Congress to enforce by appropriate legislation the provisions of the article. Upon this latter it will not be necessary to remark. ... It is argued that those who have once rebelled against the Government deserve to be disfranchised; but you

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cannot disfranchise a majority of the voters of a State without the establishment of an oligarchy; and the Constitution as our fathers made it guaranties a republican form of government to every State. Besides, it is not for them alone that the Union is to be restored, but for ourselves also, and our children. Every hour during which we govern the eleven States with their twelve million people as conquered provinces carries us further away from the original landmarks of the Constitution and brings us nearer to centralization and military despotism. Mr. KELLEY. Mr. Speaker, I know not that I am called specially to give utterance to my thoughts on this measure. The report of the committee does not meet my expectation, and one of its propositions is in conflict with some of my well-­considered convictions. If, however, those with whom I am sent to cooperate in this House deem this measure wise and expedient, I will vote for it. I am prompted to speak because it will enable me to gratify gentlemen on the other side of the House, by allowing them to hear voices from one of the disfranchised States. They will, I know, be gratified to learn that they are not entirely voiceless or powerless on this floor. One thing attracted my attention and doubtless that of others while listening to the speech of the gentleman from Ohio [Mr. Finck] and that of my eloquent colleague, [Mr. Boyer,] and that was that either of them embodied in the text of his speech the text of the amendment they were discussing. I do not think this omission was accidental. I apprehend they would rather their constituents should read their denunciatory remarks than the language of the propositions under consideration. They have not discussed any provision of the proposed amendment. I will not say they dare not discuss them clause by clause and denounce them as they have, but it would evince a high degree of political courage. Let us look at these provisions so fearfully denounced by the gentlemen. Does my colleague think he could go safely through his district in Pennsylvania denouncing the proposition to embody in the Constitution of the United States a provision that— 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?

There is not a man in Montgomery or Lehigh county that will not say those provisions ought to be in the Constitution if they are not already there. Again, sir, dare he read to his constituents the language of the second section and reiterate his denunciations of it? It is as follows:

Sec. 2. 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 twenty-­one years of age, or in any way abridged, except for participation in rebellion 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 twenty-­ one years of age.

Shall the pardoned rebels of the South include in the basis of representation four million people to whom they deny political rights, and to no one of whom is allowed a vote in the selection of a Representative? Can he tell the men of the boroughs of Norristown and Allentown that one red-­handed rebel in South Carolina is of right and ought to be the equal of three of the best and most patriotic of them on the floor of Congress or in the college for the election of President and Vice President? He dare not do it. They would spurn him and the insulting proposition. The men who fought the rebels and crushed their confederacy would say, give us at least equal consideration and power with the traitors against whom we fought, and who caused the death of three hundred thousand of our patriotic brethren. I come, sir, to the third section. To strike that out would, in my judgment, be to emasculate the amendment. It is as follows: Sec. 3. Until the 4th day of July, 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States.

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Who ought to govern this country? The men who for more than four years sustained bloody war for its overthrow, or they whom my colleague designates as “that

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proscriptive body of men known as the great Union party” who maintained the Government against the most gigantic rebellion since that which Satan led? I quote my colleague’s language, and I ask him whether he dare go before our fellow-­citizens and argue that magnanimity requires us to hand the Government over immediately to the vanquished but unconverted rebels of the South. ... Mr. Speaker, this section which is denounced as so degrading to the people of the rebellious States simply proposes, as I have shown, to restore to them at the end of four years those rights which the sensible people of the South know they have lost, and which they despise Andrew Johnson for attempting to restore by unconstitutional means. He has committed, said one of them, in the letter from which I read an extract, a great blunder, if not a great crime; and that is the sentiment of the brave men who fought us in the South. The next section which the gentleman opposes is this:

understand that the Constitution of the United States is the supreme law of the land; that treason is a crime which must be made odious; that traitors must be punished; and that it is the purpose of the governing people of the North, “that proscriptive body of men known as the great Union party,” to maintain these propositions beyond “all cavil or dispute.”

63 US House, Proposed Fourteenth Amendment, Debate and Passage May 10, 1866*

The SPEAKER. The first business in order is the consideration of the joint resolution reported by the committee on reconstruction, on which the gentleman from Pennsylvania [Mr. Randall] has the floor. Mr. RANDALL, of Pennsylvania. Mr. Speaker, in discussing this question briefly, as I am compelled to do by reason of the limited time allowed me, I shall advert to the proposition now before the House as a whole, not undertaking a lengthy discussion of the various amendments which have been proposed, and I trust the chairman of the committee [Mr. Stevens] will, when the proper time arrives, call the previous question, and in that manner induce a vote upon the main proposition as embraced in the whole five sections of the proposed amendment to the Constitution. And for that purpose I desire to analyze the various sections of the proposed amendment. The first section proposes to make an equality in every respect between the two races, notwithstanding the policy of discrimination which has heretofore been exclusively exercised by the States, which in my judgment should remain and continue. They relate to matters appertaining to State citizenship, and there is no occasion whatever for the Federal power to be exercised between the two races at variance with the wishes of the people of the States. For myself, I would wish that the colored race should be placed in the same political condition as it occupies in Pennsylvania; but I would leave all this to the States themselves, just in the same manner as the elective franchise is permitted. If you have the right to inter-

Sec. 4. Neither the United States nor any State shall assume or pay any debt or obligation already incurred, or which may hereafter be incurred, in aid of insurrection or of war against the United States, or any claim for compensation for loss of involuntary service or labor.

There is not a voter in Pennsylvania that does not approve that proposition. The men of our State do not mean that the people of the United States or future emigrants to the southern States shall be taxed to pay rebel debts or for slaves set free by war; and I mean that they shall see what the provisions are that the gentlemen assail with broad generalities and laudations of our modern “Moses.” ... The only other section of this much abused proposition is as follows: Sec. 5. The Congress shall have power to enforce by appropriate legislation the provisions of this article.

So far as I am individually concerned, I object to the amendment as a whole, because it does not go far enough and propose to at once enfranchise every loyal man in the country. I wish to see its power asserted by the Government. I want to see traitors in heart or head, those who would hatch or effect treason, made to

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* Cong. Globe, 39th Cong., 1st Sess., 2530–45 (May 10, 1866).

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fere in behalf of one character of rights—I may say of every character of rights, save the suffrage—how soon will you be ready to tear down every barrier? It is only because you fear the people that you do not now do it. I consider the Federal restraints upon the States in reference to rights of citizens as now in the Constitution safe and sufficient. I feel it, in consequence, my imperative duty to oppose this section. Grant this power, insert it in the Constitution, and how soon will the privilege of determining who must vote within the States be assumed by the Federal power? Gentlemen here admit that they desire this, but that the weak kneed of their party are not equal to the issue. Your purpose is the same, and but for that timidity you would now ingraft negro suffrage upon our Constitution and force it on the entire people of this Union. The second section, to my mind, is ambiguous, and is liable to a doubtful construction. What does this amendment mean? Does it mean that those males over twenty-­ one years not allowed to vote shall not be counted in the basis of representation? If so, why not say so in terms; but if it means, as it may, that the diminution of representation is to be in proportion they bear to the voters, it may deny all or greatly abridge representation. Suppose, for instance, a State with one hundred thousand voters, and a similar number excluded, if proportions are considered this State would seem to have no Representative. I desire that my colleague, [Mr. Stevens,] the gentleman having charge of this legislation, shall answer what they claim it to mean, so that the issue when before the country may be rightly understood. In addition, this section makes an entire change in the basis of representation, which should in every country rest upon inhabitants. This is the safest and has been found to work the best. I do not consider there is any need to change, more especially when a large portion of our people with whom we hope for all time to live on terms of peace and equity are not now here to present their views and consider the effect this legislation will have upon their interest. The injustice and the animus of the third section have been so fully stated by gentlemen on the other side that I will not consume my limited time in reproducing, but dismiss it with the remark that it is intended to secure what you most wish, an entire disagreement to the whole scheme by the eleven southern States, and a continued omission of representation on this floor. This brings me to another point in the argument of the gentleman from Pennsylvania who introduced this report.

The fourth section I need not discuss, because I believe if that proposition was presented to this House as a simple proposition it would be almost unanimously adopted. The gentleman from Pennsylvania [Mr. Stevens] tells us— “Upon a careful survey of the whole ground, we did not believe that nineteen of the loyal States could be induced to ratify any proposition more stringent than this. I say nineteen, for I utterly repudiate and scorn the idea that any State not acting in the Union is to be counted on the question of ratification.”

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In this respect let me say that the gentleman must fly directly in the face of the decisions of the Supreme Court of the United States; he has to put at naught the precedent established in reference to the amendment of the Constitution abolishing slavery; he has to overcome what is clearly the common-­sense judgment of the people of this country upon this point. And moreover, I believe his opinion, as there expressed, is in contravention of the judgment of a majority of this House, with whom he is politically associated. Such is the plan of the committee of fifteen, or what may perhaps be described as the congressional view of this vexed question. It is a plan of disunion, and it is a deception to call it otherwise; and the friends of the Union, by whatever name, must cooperate to defeat this measure, or the Union will sooner or later be destroyed by those who have arrogated to themselves to be its special defenders. This proposition is worthy of having emanated from the tower of Babel. It carries with it a confusion of tongues and a confusion of purposes. One design, however, is clearly apparent, and that is to secure the success of the Republican party, even in the event of the overthrow of the Union. Now, Mr. Speaker, what have we in the opposition to this plan of procrastination and delay? The President, immediately upon his accession to the Presidency, took up the plan which Mr. Stanton informs us was the mode which Mr. Lincoln had marked out for himself; and he has steadily pursued it, regardless of threats and clamor, exhibiting a moral courage of the equal of which we have but rare instances in history. Thus guided by wisdom and prudence, he has brought us along until now the admission of loyal representatives in Congress from the late rebel States is all that is required to complete and make perfect our Union. His plan is simple and effective, just and equitable;

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and acceptable, as I believe, to a vast majority of the people both North and South. What is this policy? 1. That the southern States are in the Union. Their ordinances of secession being null and void, they have never been out, and are legally entitled to representation in Congress. 2. That whenever the people in any of those States elect Union men, of whose loyalty there can be no question or doubt, it is the duty of Congress to admit them. 3. That all those claiming seats in Congress from the southern States who were prominently identified with the rebel government or rebel army should be immediately rejected and their constituents requested to elect loyal Union men in their places. The issue is now made up, and to the people we must appeal. ... Mr. STROUSE. ... While discussing the report of the committee with a learned friend of mine, he informed me that the subject was most ably treated in an editorial in the New York Times. The Times is acknowledged to be one of the ablest and most leading Republican papers in the United States. Fully concurring in the views therein expressed, I beg to read the article for the benefit of this House. It is sound, patriotic, statesmanlike, and just, and well deserves the serious consideration of every truly patriotic man who loves his country, its history, and glory:* ... Mr. ECKLEY. Mr. Speaker, any question affecting the fundamental law of the land demands careful and mature deliberation; and it is only when the necessity is great that such changes can be justified. That necessity is upon us, and we cannot, in view of the past and our duty to the present and the future, postpone it. My colleague [Mr. Finck] has signaled the alarm at the proposition. Those of us who were members of the last Congress heard the same cry while the amendment was under consideration abolishing slavery, but we heeded it not. The amendment was adopted and ratified, and every person now rejoices, except a small faction known as copperheads, and they lament it only because of the loss of political capital. * [Here, Strouse quotes the entire New York Times editorial of April 30, 1866 (see this section, doc. 61), beginning with “As a plan of pacification.” —Ed.]

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... It is claimed that we have no right to exclude their Representatives. I think we have. We do not want another war, and we would be faithless if we did not secure such guarantees as would last through all time. If they have given up the idea of rebellion, they can assure us such guarantees as will secure them in their right of representation and the country in harmony forever. We should exact nothing of them unjust or inconsistent with reason but we should insist upon that well-­ recognized principle that maintains in every civilized country, that the highwayman, burglar, and pirate are not fit to sit as administrators of the law. ... In my judgment three things are necessary to be done before we can with safety restore them to their former relations with the Government: 1. Equal and just representation. 2. Security of life, liberty, and property to all the citizens of all the States. 3. To reject all debts or obligations incurred in aid of the rebellion. The ratification of the constitutional amendment changed the condition of representation and rendered an amendment to the Constitution necessary in order to equalize the just basis of representation. Under the Constitution as it now stands they would count the entire population in the southern States. Before the Constitution was amended, they counted the entire free population and three fifths of the slaves; but there being now no slaves they would count all. In none of those States do they confer the right of suffrage on the colored population. This presents the anomaly of allowing five million white rebels to represent four million loyal blacks, and makes two white persons—rebels at that—in South Carolina equal to five white loyalists in Ohio, Pennsylvania, or New York. To this unjust demand I cannot and will not yield. If all other objections were removed, that one would be a justification for rejecting their Representatives. I could not return to my own gallant State and say to her loyal people and to the three hundred thousand gallant sons she sent to the field that by my vote I had reduced their political power until it required five of these scarred veterans to equal two of the rebels against whom they fought. If South Carolina persists in withholding the ballot from the colored man, then let her take the alternative we offer, of confining her to the white basis of representation, and instead of the seven hundred thousand, her

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entire population, let her accept the two hundred and ninety thousand white population as the basis of her representation. For my purpose this sufficiently illustrates the operation of the rule, and the only practicable remedy is in an amendment to the Constitution changing the basis to the voting population, and making that a condition-­precedent to the admission of Representatives from the insurgent States. But it is said we should admit their Representatives, and if they are not loyal, turn them out. I hope we shall not be deceived by such a trick as that. Some of us have had experience in expelling a member. If Georgia was to send her Toombs here as a Representative, or Kentucky her Breckinridge, both gory with the blood of our murdered soldiers, both ardent supporters of the rebellion in every stage, supporting in every way, and when conquered, and its failure no longer a question, they would not risk their safety in this country, but sought refuge in Europe, not one vote on the other side could be had for their expulsion. But how are members admitted here? By producing a certificate of election to the Clerk, who makes up the roll, calls it himself, and prepares them for qualifying. Much, then, depends upon the Clerk in the organization of the House. He could exclude them if he desired so to do. The experience of Congress has taught us to beware of dangers from Clerks of their own selection. I heard of a Clerk once who decided that a certificate, setting forth that a person was duly elected a Representative, did not prove that he was elected according to law. As an apology for his fine-­spun theory it was said he had partially lost his reason; but I think he had suffered, if possible, a worse calamity than that. He had united his fortunes with the disunionists, enough certainly to drive any man mad. When the Clerk makes up his roll, calls the members, they take the oath, how are you to get them out of their seats but by expulsion, which requires a two-­thirds vote. Let us look at this matter in its practical operation. Suppose we admit the Representatives from the rebel States, and the bloody General Forrest should be returned a member, who produced his certificate of election, was placed on the roll, answered to the call, and took the oath; could you expel him on account of his treason? Certainly not; unless you could expel all the rest from the insurgent States, and that you could not do. And it would be the merest folly to attempt it. It would then become a political question. The Democratic party would then all be here—the open rebels of the South, the three hundred thousand Knights of

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the Golden Circle, the sympathizers of the North; the prisons would be emptied, the gallows cheated, the Canadian refugees would be called home, and if that was not enough, they would resurrect the conspirators and call from the tomb of infamy the murderers of the Andersonville prisoners. Then they would have a Democratic party strong enough in this Hall to prevent the expulsion of one of their number. As to the provision disfranchising those who have participated in the rebellion, it is objected to, first, for want of power, and second, on the ground of expediency. Neither, in my judgment, are sound. As to the first, I have no doubt of the power under the Constitution as it is. Such is and has been its interpretation from the foundation of the Government. Under a congressional act persons convicted of a crime against the laws of the United States, the penalty for which is imprisonment in the penitentiary, are now and always have been disfranchised, and a pardon did not restore them unless the warrant of pardon so provided. ... The only objection I have to the proposition is that it does not go far enough. I would disfranchise them forever. They have no right, founded in justice, to participate in the administration of the Government or exercise political power. If they receive protection in their persons and property, are permitted to share in the nation’s bounties, and live in security under the broad aegis of the nation’s flag, it is far more than the nation owes them. ... Mr. BEAMAN. Mr. Speaker, to say that I am not entirely satisfied with the plan for the reconstruction of the rebel States reported by the committee is probably to utter the sentiment of nearly every member of the House, including the members of that committee. It is most likely, also, that the expectation of the country will be somewhat disappointed. Mindful of the terrible struggle through which we have just passed, with all its sad incidents, the people are naturally earnest, anxious, and watchful. Impressed with the former teaching of your Chief Magistrate, they have come to believe that treason is crime, and ought to be punished; and that in any plan adopted for admitting the people of the rebel States to a participation in the government of the country, ample safeguards will be provided for future s­ ecurity. Sir, I feel compelled to say that I do not think the report of the committee quite meets their just expecta-

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tions. Nevertheless, so various are the views of gentlemen of the House, as well as of the individual members of the committee, perhaps it is as nearly satisfactory as any system that could have been agreed on with any well-­founded hope of adoption. I am inclined, therefore, to support the joint resolution, though I hope it may be amended. I have serious objections to the third section, and I shall experience regret if, through the inflexibility of parliamentary rules, I am compelled to vote upon the original resolution without an attempt to amend it. It seems to me that the third section will be found useless in its results and impracticable in its operation, while it is calculated to foster irritation and bad blood among the people of the South. It makes a show on the face of it of accomplishing what it is impotent to perform; that is to say, it assumes until the 4th day of July, 1870, to “exclude all persons who voluntarily adhered to the late insurrection, giving it aid and comfort,” from the right to vote “for electors for President and Vice President of the United States,” yet we very well know that such a provision would be entirely inoperative, because electors for President and Vice President can be appointed by the Legislatures according to a practice that has always obtained in South Carolina. The provision does not extend to the election of Senators, and consequently it can operate only to affect the election of members of this House, and that only for a period of four years. The State governments, the inspectors of election, the rejection or reception and canvassing of votes, the returns and certificates, in short the whole machinery of the elections will be in the hands and under the control of the very men whom you propose to disfranchise, and the difficulties that will arise in an attempt to execute the law are too obvious to require particular specification. This section looks as though it was intended for ornament rather than for use. Perhaps I should say it has the appearance of having been introduced to multiply the conditions of restoration, thereby rendering the scheme somewhat more imposing. It was doubtless the offspring of compromise, the result of a contest of adverse opinions, in which each one of the progenitors gave up so much of his paternity that the bantling is a mere shadow. It is, however, a shade too thin to blind the eye, and it might as well be removed altogether. The people are not likely to be blinded by so thin a veil, and it is folly to undertake to deceive ourselves. The people do not stand on punctilio. They want no expedient adopted in order to gratify their vanity, or to save a point of honor. They desire the adoption of no measure whose

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sole object is to assert their power over the rebels; that has already been established in the clash of arms. They want protection and security for the future, and to that end they believe it indispensable that the Government should be administered by loyal hands. ... But I will not on this account abandon all. I will accept of the best arrangement available. I will vote for the substitute I propose, if I have an opportunity. I will vote simply to strike out the third section, if I can do no more; and failing in that, I will vote for the joint resolution as it stands. Mr. ROGERS. ... 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 everything 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. This section of the joint resolution is no more nor less than an attempt to embody in the Constitution of the United States that outrageous and miserable civil rights bill which passed both Houses of Congress and was vetoed by the President of the United States upon the ground that it was a direct attempt to consolidate the power of the States and to take away from them the elementary principles which lie at their foundation. It is only an attempt to ingraft upon the Constitution of the United States one of the most dangerous, most wicked, most intolerant, and most odious propositions ever introduced into this House or attempted to be ingrafted upon the fundamental law of the Federal Union. It provides that 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. What are privileges and immunities? Why, sir, all the rights we have under the laws of the country are embraced under the definition of privileges and immunities. The right to vote is a privilege. The right to marry is a privilege. The right to contract is a privilege. The right to be a juror is a privi-

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lege. The right to be a judge or President of the United States is a privilege. I hold if that ever becomes a part of the fundamental law of the land it will prevent any State from refusing to allow anything to anybody embraced under this term of privileges and immunities. If a negro is refused the right to be a juror, that will take away from him his privileges and immunities as a citizen of the United States, and the Federal Government will step in and interfere, and the result will be a contest between the powers of the Federal Government and the powers of the States. It will result in a revolution worse than that through which we have just passed. It will rock the earth like the throes of an earthquake until its tragedy will summon the inhabitants of the world to witness its dreadful shock. ... Mr. FARNSWORTH. Mr. Speaker, in my half hour I shall confine myself to the amendments of the Constitution now under consideration. When the bill reported by the committee of fifteen comes up for action by this House I may desire to say something in regard to it. I intend to vote for this amendment in the form reported, with the exception of the third section. It is not all I could wish; it is not all I hope may yet be adopted and ratified; for I am not without hope that Congress and the people of the several States may yet rise above a mean prejudice and do equal and exact justice to all men by putting in practice that “self-­evident truth” of the Declaration of Independence, that Governments “derive their just powers from the consent of the governed,” and giving to every citizen, white or black, who has not forfeited the right by his crimes, the ballot. But I do not think it is becoming in a legislator to oppose some good because the measure is not all he wants. The first section of the amendment proposed is as follows:

will do no harm, and I shall not therefore oppose it on account of what I may regard as surplusage. “Equal protection of the laws;” can there be any well-­ founded objection to this? Is not this the very foundation of a republican government? Is it not the undeniable right of every subject of the Government to receive “equal protection of the laws” with every other subject? How can he have and enjoy equal rights of “life, liberty, and the pursuit of happiness” without “equal protection of the laws?” This is so self-­evident and just that no man whose soul is not too cramped and dwarfed to hold the smallest germ of justice can fail to see and appreciate it. The second section of the amendments proposed is as follows: Sec. 2. 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 twenty-­one years of age or in any way abridged, except for participation in rebellion 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 twenty-­ one years of age.

Sec. 1. 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 its laws.

So far as this section is concerned, there is but one clause in it which is not already in the Constitution, and it might as well in my opinion read, “No State shall deny to any person within its jurisdiction the equal protection of the laws.” But a reaffirmation of a good principle

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I like this better than the one this House adopted some time since, and which was defeated in the Senate. That amendment I declared then, as I do now, that I did not like. It received my vote in common with many other members of this House, but with hesitation, doubt, and protest. I will not reiterate the reasons now; but, sir, I have no sympathy with nor approval for the denunciations which the gentleman from Pennsylvania [Mr. Stevens] has seen fit to hurl at those Senators who differed with him and defeated the adoption of that amendment. I rather admire their patriotism, their courage, and their sense. The amendment, however, now under consideration is free from what I considered the most objectionable features of the other. The Constitution now provides for the apportionment of Representatives according to the “whole number of free persons” and “three fifths of all other persons.” Consequently, before emancipation, three fifths of the slaves were enumerated, which gave to the slave

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States nineteen Representatives in Congress, and as many electors of President, based upon a constituency of slaves alone. But now there are no “other persons;” all are free; and when the other two fifths are added in the enumeration they will give the late slave States thirteen more Representatives and electoral votes than before, making thirty-­two Representatives and electors for the four million emancipated slaves. Now, this amendment says to those States this: “If the freedman are so degraded and ignorant as to be unworthy of enfranchisement; if they are not capable of governing themselves, but must be held in subjection to and governed by their late masters, then they are not fit to govern the country through the votes of others.” They shall not by any such prestidigitation, be dead at the ballot-­box, but alive here, dumb, without a voice for their own government, and with thirty-­two voices on this floor, and thirty-­two votes for President and Vice President. They shall not be used to swell their rebel masters into giants and dwarf the loyal and patriotic men of the free States into Tom Thumbs! If you deny to any portion of the loyal citizens of your State the right to vote for Representatives you shall not assume to represent them, and, as you have done for so long a time, misrepresent and oppress them. This is a step in the right direction; and although I should prefer to see incorporated into the Constitution a guarantee of universal suffrage, as we cannot get the required two thirds for that, I cordially support this proposition as the next best. This amendment, too, I fully believe, will in a reasonably short period bring universal suffrage. The fourth section of this amendment, repudiating the rebel debt and claims for slaves, will be most heartily adopted and approved by every loyal man in the nation. Every man or woman who holds a Government bond, or who pays a tax, every crippled soldier or widow of a dead soldier, who holds a pension certificate, and everybody who hates treason and rebellion, and prays for the prosperity of the Government, will rejoice at its adoption. The third section excludes all persons who voluntarily adhered to the rebellion, giving it aid and comfort, from the right to vote for members of Congress, and for electors for President and Vice President until the 4th of July, 1870. I cannot regard this section as of any practical value. I believe it to be difficult, if not impossible, of fulfillment; and I have fears that it may greatly embarrass, if not defeat, the adoption of the other sections should we pass it through this House.

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If the rebels are to be disfranchised at all, they should be for a longer period. Again, some rebels are deserving of a total and lasting disfranchisement, while others who are embraced in this provision are not near so criminal. But such a provision would be taken to imply that all shall have the right to vote after July, 1870. Besides, there is a large class of men, both in the North and South, equally, yea, and more, guilty than thousands of the misguided men who will be disfranchised by this provision, who will not be affected by it. I allude to those politicians and others at the South who, keeping themselves out of danger, set on the ignorant and brave to fight for what they were told by these rascals were “their rights;” and to other politicians, editors, “copperheads,” in the North, some of whom were and are members of Congress, who encouraged them and discouraged our soldiers. How is it to be ascertained who “gave aid and comfort” to the insurrection? Is it by challenge and oath at the polls, or shall we have a registration throughout the United States with officers to settle and adjudge that question as to every voter? It seems to me, Mr. Speaker, that this provision is worse than useless, and will very much mar the beneficent effect of the other most excellent provisions of this amendment. Why, sir, the almost universal testimony from the rebel States is that the soldiers who fought us in the field accept their situation of “defeated and vanquished” with a much better grace than the politicians and non-­combatants. They do not want to fight again. They are inspired with a wholesome respect for northern character and for the Government. They have ceased their bragging, and are willing to accept the position which the results of the war has placed them in. Then, with the exception of the third section, I am heartily for the amendment, and if instead of that section we could incorporate a provision into the Constitution which should forever disqualify all the leading rebels from holding any office under the United States, thus making “treason odious” and traitors infamous, the country would hail it with joy. ... Mr. BINGHAM. Mr. Speaker, I beg the House to remember that the three several measures reported by the committee on reconstruction must be considered together as an entirety in order to determine the merit of the question immediately involved before the House in the adoption of the constitutional amendment. I do not believe myself, sir, that the purpose for which this committee was organized by the House would the fully

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attained if nothing more were to be done by the Congress of the United States than simply to send to the people of the several States the proposition reported by the committee for the amendment of the Constitution. There are three measures, Mr. Speaker, and not, as some gentlemen seem to argue, but one, that have been reported by this committee. The first of these measures is a condition-­precedent to the reorganization and restoration to political power of any State lately in insurrection. That measure has more than once during this debate been lost sight of by gentleman who have spoken. No State lately in insurrection, according to one of the measures reported, in case it shall become a law of the United States, can ever exercise political powers in this Union until the pending constitutional amendment shall first have become a part of the Constitution of the United States, by the consent of the Legislatures of three fourths of the States now maintaining their constitutional relations to the Government, and by the subsequent consent of the insurrectionary State itself, the State also conforming its own constitution and laws to all its requirements. Additional to this there is yet another measure reported by the committee to which I attach great importance, and to which I doubt not the loyal people of this country of every section will attach great importance. That is the bill which disqualifies forever from holding any office of honor or trust within the Republic every leading and marked actor in the late rebellion. By that bill the president and vice president of the late confederate States so called will be excluded; the members of the Thirty-­Sixth Congress who in any manner aided this rebellion will be excluded; all persons who were educated at the national academies, naval or military, who have been endowed by the people with the power of knowledge, a gift next in value to the gift of the understanding with which the breath of the Almighty has given them, are excluded; the persons who represented this confederacy of treason and crime in any part of the habitable globe are excluded; and above all and beyond all, all persons who in any manner subjected to untimely death by exposure or neglect or the slow torture of famine or poison the captive defenders of the Union, are forever excluded. The mere statement and concession of the people’s right to exercise this power, which is undoubtedly the sovereign right of the American people, by a congressional act, ought to have suggested to the honorable gentleman from Massachusetts [Mr. Banks] that if it is

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needful in this great work of reconstruction further to disfranchise the participants in this rebellion, it can be done in like manner by an act of Congress, and without a constitutional amendment. The franchise of a Federal elective office is as clearly one of the privileges of a citizen of the United States as is the elective franchise for choosing Representatives in Congress or presidential electors. They are both provided for and guarantied in your Constitution. Why, then, prohibit rebels from the enjoyment of the first for life by an act of Congress and restrict the second for a term of years by a constitutional amendment? To be sure we all agree, and the great body of the people of this country agree, and the committee thus far in reporting measures of reconstruction agree, that the exercise of the elective franchise, though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States. But, sir, the committee never intimated and never intended to intimate by any measure they have reported that any State lately in insurrection can exercise either that power or any other until it is restored to its constitutional relation to the Union save by the express or implied consent of the Congress of the United States, nor that after being restored they can exercise that power contrary to the express conditions prescribed by Congress for their restoration. The power to prescribe these conditions is exclusively in Congress. That is the philosophy of every measure of reconstruction now pending before the House. ... The want of the Republic to-­day is not a Democratic party, is not a Republican party, is not any party save a party for the Union, for the Constitution, for the supremacy of the laws, for the restoration of all the States to their political rights and powers under such irrevocable guarantees as will forevermore secure the safety of the Republic, the equality of the States, and the equal rights of all the people under the sanctions of inviolable law. I trust, Mr. Speaker, that after the roll shall have been called this day, and the departing sun shall have gilded with its last rays the dome of the Capitol, it will not be recorded by the pen of the historian that the sad hour had come to this great Republic which, in the day of its approaching dissolution, came to the republic of ancient Rome, when it was said Caesar had his party, Antony had his party, Brutus had his party, but the Commonwealth had none! I speak to-­day, Mr. Speaker, to the party that is for

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the Republic; to the party that is for the Constitution; to the party that is for the speedy restoration to their constitutional relations of the late insurrectionary States, under such perpetual guarantees as will guard the future of the Republic by the united voice of a united people against the sad calamities which have in these late years befallen it. Mr. Speaker, the final settlement of this grave question which touches the nation’s life is at last with the people of the loyal States—the loyal people of the Union. To the end, therefore, knowing, as the committee did know, that parties must dissolve, that men must perish from the earth, but that the Commonwealth is for all time, if its laws be just and its people be faithful, they propose to the several States a perpetual covenant in the form of a constitutional amendment, never to be broken so long as the people adhere to their cherished forms of government, which, when ratified, will secure the safety of all and the rights of each, not only during the present generation, but throughout all generations, until this grand example of free government shall itself be forgotten. The amendment reported by the committee is as follows:

excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States. Sec. 4. Neither the United States nor any State shall assume or pay any debt or obligation already incurred, or which may hereafter be incurred, in aid of insurrection or of war against the United States, or any claim for compensation for loss of involuntary service or labor. Sec. 5. The Congress shall have power to enforce by appropriate legislation the provisions of this article.

Article —. Sec. 1. 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. Sec. 2. 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 twenty-­one years of age, or in any way abridged, except for participation in rebellion 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 twenty-­ one years of age. Sec. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be

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The necessity for the first section of this amendment to the Constitution, Mr. Speaker, is one of the lessons that have been taught to your committee and taught to all the people of this country by the history of the past four years of terrific conflict—that history in which God is, and in which He teaches the profoundest lessons to men and nations. There was a want hitherto, and there remains a want now, in the Constitution of our country, which the proposed amendment will supply. What is that? It is 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. Allow me, Mr. Speaker, in passing, to say that this amendment takes from no State any right that ever pertained to it. No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws or to abridge the privileges or immunities of any citizen of the Republic, although many of them have assumed and exercised the power, and that without remedy. The amendment does not give, as the second section shows, the power to Congress of regulating suffrage in the several States. The second section excludes the conclusion that by the first section suffrage is subjected to congressional law; save, indeed, with this exception, that as the right in the people of each State to a republican government and to choose their Representatives in Congress is of the guarantees of the Constitution, by this amendment a remedy might be given directly for a case supposed

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by Madison, where treason might change a State government from a republican to a despotic government, and thereby deny suffrage to the people.* Why should any American citizen object to that? But, sir, it has been suggested, not here, but elsewhere, if this section does not confer suffrage the need of it is not perceived. 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 guarantied 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 and could provide none. Sir, the words of the Constitution that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States” include, among other privileges, the right to bear true allegiance to the Constitution and laws of the United States, and to be protected in life, liberty, and property. Next, sir, to the allegiance which we all owe to God our Creator, is the allegiance which we owe to our common country. The time was in our history, thirty-­three years ago, when, in the State of South Carolina, by solemn ordinance adopted in a convention held under the authority of State law, it was ordained, as a part of the fundamental law of that State, that the citizens of South Carolina, being citizens of the United States as well, should abjure their allegiance to every other government or authority than that of the State of South Carolina. That ordinance contained these words:

amount to a violation of their allegiance, and to provide the proper punishment for such violation.”

“The allegiance of the citizens of this State is due to the State; and no allegiance is due from them to any other Power or authority; and the General Assembly of said State is hereby empowered from time to time, when they may deem it proper, to provide for the administration to the citizens and officers of the State, or such of the said officers as they may think fit, of suitable oaths or affirmations, binding them to the observance of such allegiance, and abjuring all other allegiance; and also to define what shall

* [Here Bingham refers to Federalist, No. 43 (Madison). See vol. 1, 1B, doc. 4. —Ed.]

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There was also, as gentlemen know, an attempt made at the same time by that State to nullify the revenue laws of the United States. What was the legislation of Congress in that day to meet this usurpation of authority by that State, violative alike of the rights of the national Government and of the rights of the citizen? In that hour of danger and trial to the country there was as able a body of men in this Capitol as was ever convened in Washington, and of these were Webster, Clay, Benton, Silas Wright, John Quincy Adams, and Edward Livingston. They provided a remedy by law for the invasion of the rights of the Federal Government and for the protection of its officials and those assisting them in executing the revenue laws. (See 4 Statutes-­ at-­Large, 632–33.) No remedy was provided to protect the citizen. Why was the act to provide for the collection of the revenue passed, and to protect all acting under it, and no protection given to secure the citizen against punishment for fidelity to his country? But one answer can be given. There was in the Constitution of the United States an express grant of power to the Federal Congress to lay and collect duties and imposts and to pass all laws necessary to carry that grant of power into execution. But, sir, that body of great and patriotic men looked in vain for any grant of power in the Constitution by which to give protection to the citizens of the United States resident in South Carolina against the infamous provision of the ordinance which required them to abjure the allegiance which they owed their country. It was an opprobrium to the Republic that for fidelity to the United States they could not by national law be protected against the degrading punishment inflicted on slaves and felons by State law. That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment. That is the extent that it hath, no more; and let gentlemen answer to God and their country who oppose its incorporation into the organic law of the land. The second section of the amendment simply provides for the equalization of representation among all the States of the Union, North, South, East, and West. It makes no discrimination. New York has a colored population of fifty thousand. By this section, if that great State discriminates against her colored population as to the elective franchise, (except in cases of crime,) she loses

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to that extent her representative power in Congress. So also will it be with every other State. Upon the third section of the amendment gentlemen are divided upon this side of the House as well as upon the other. It is a provision that until the year 1870 all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress or for electors for President or Vice President of the United States. This section imposes no other or further disability. It seems to me, Mr. Speaker, that this section can bring no strength to the amendment, although I fully agree with the honorable gentleman from Massachusetts [Mr. Banks] in the words which he so fitly uttered, it is within the authority of the people of the United States to disfranchise these parties. But, sir, I submit to the honorable gentleman, and I submit to the House, that if we have the power by a mere act of Congress, (as is conceded by the committee,) to take from rebels the franchise of office under the Government of the United States for life, as is provided in the bill reported by the committee, we can as well take from them until 1870, by an act of Congress, the right to vote for Representatives in Congress or for the presidential electors, as is provided in the third section of this amendment. Mr. STEVENS. And have it vetoed. Mr. BINGHAM. My friend from Pennsylvania says, “and have it vetoed.” I am not fearful of any veto at the other end of the avenue. I believe no veto can defeat the final passage of either of the measures reported to the House, nor can a veto defeat the final triumph of this constitutional amendment before the people. The success of the amendment here depends upon no veto. It does not go to the President for his sanction. Touching, however, the other question, the veto of the bill, even with the provision of the third section added to it, I do not believe for a moment, that the President will veto it, and for the reasons suggested, which I have not time to enumerate now, by the gentleman from Massachusetts in the citations he made from the President’s proclamation of the 29th of May last and the just deductions he drew therefrom. I can vote for the amendment with the third section in as readily as without it. It raises no question of power; it imposes no unjust disability. It involves a question of policy, not of power. The sovereignty of the nation can unquestionably disfranchise the persons referred to, not only until 1870, but until seventy times seventy shall have passed over them, if it pleases God to allow them so long to live upon the earth.

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The question upon the third section, and the only question, is, what do we gain by putting it in the constitutional amendment? If thereby we endanger the adoption of the amendment in the Senate, or its final ratification by the requisite number of States, we should omit it. It has been said that the third section is incapable of execution if adopted. I beg leave to say to the House that in my opinion an amendment that is not to be executed to the full, and which is incapable of full execution, ought not to be put into the Constitution. My honorable colleague from the Columbus district, [Mr. Shellabarger,] in my judgment, suggested, in the few remarks which he made yesterday, the only method by which the Government of the United States can enforce the first clause of that section, and that is by making a registry law for congressional districts, and the election of Representatives to Congress all over the country, and appointing election officers to conduct the same. The first clause only of the third section can in that way be executed; but is there anybody here who proposes to send Federal election officers into Massachusetts or New York to control the elections of Representatives to Congress? The amendment, sir, is of universal application, and if adopted, it is to be enforced in every State in the Union. There are voters within the operation of this section in every State. I have no objection to their disfranchisement, but are you going to enforce the provision if adopted? If not, why retain it? Is it to be retained simply to furnish demagogues a pretext for raising the howl that we exclude rebels for four years only that we may control the next presidential election? Honest, intelligent, and reflecting men will scout such a suggestion, but the calculating and the careless or thoughtless may accept and act upon it to the hurt, the lasting hurt, of the sacred cause this day in your hands. How, I ask, can the last clause of this third section be enforced? That clause of the section excludes until 1870 all rebels from voting for electors for President and Vice President of the United States. I venture to say that by the very letter and intendment of the Constitution of our country, the great seal of a State, duly organized and exercising its functions within this Union touching the appointment of electors for President and Vice President of the United States, is final and conclusive upon Congress, except when the certificate shows that the electors were appointed on a day other than that prescribed by the Constitution or the laws. The Constitution has provided that these electors shall be appointed by each State in such manner

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as the Legislature thereof may direct; that the Congress may determine the time of choosing the electors and the day on which they shall give their votes, which day shall be the same throughout the United States, and that the electors shall certify their action. If the State and the electors’ certificates show that all these provisions have been complied with, Congress cannot go behind them and inquire who voted for the electors. If, on the contrary, the certificate from any State discloses that the electors did not meet on the day prescribed by law, as was the fact in the Wisconsin case, to which the gentleman from Massachusetts [Mr. Banks] referred, of course the Congress could reject the vote from that State, but where the certificates are regular, where they show a due appointment of electors, that the electors were chosen on the day prescribed by law, and met and voted for President and Vice President on the day prescribed by law, Congress cannot go behind the certificates; neither can the two Houses of Congress, in joint convention or separately, investigate the question. The appointment of electors for President and Vice President of the United States is the act of a State and not of individuals. “Each State shall appoint,” says the Constitution; therefore the act can be evidenced only by the certificate of the State officials, under its great seal, which imports absolute verity. How could Congress say the appointment was not the act of the State against the certificate and seal of the State? The remarks of some gentlemen to the effect that under the Constitution we could enforce the first clause of the section by inquiring into the election of members of the House or of the Senate, do not apply to the last clause, because the express language of the Constitution is that “each House shall be the judge of the elections and returns” as well as the “qualifications of its own members.” There is no like grant in the Constitution that each House or both Houses in joint convention may inquire into the appointment of electors; therefore the second clause of the third section of the amendment is useless. I venture to say that clause is useless unless, indeed, by implication Congress is to declare the express text of the Constitution as I have cited it repealed by the proposed amendment when adopted, and that by virtue of it Congress will prescribe by law the mode and manner of appointing electors for President and Vice President of the United States, in the face of the existing provision of the Constitution that “each State shall appoint the electors in such manner as the Legislature thereof

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may direct.” Who will say, if this amendment is adopted, that the State Legislatures may not direct the manner and each State appoint electors? To what, then, are we reduced? This amendment does not disqualify any rebel or aider of the rebellion from voting at all the State elections for all State officers, nor does it disqualify them from being appointed presidential electors. It amounts, therefore, to this: though it be adopted, and made part of the Constitution, yet all persons “who voluntarily adhered to the late insurrection, giving it aid and comfort,” may vote at all the State elections for State officers, and, being largely in the majority in every insurrectionary State, may elect the State Legislature, which may appoint electors for President and Vice President of the United States, and from aught in the amendment may appoint rebels as such electors. It seems to me, sir, that it must by this time be apparent to members of the House that this clause of the amendment is never to be executed until that part of the text of your Constitution is stricken out; or in other words, that it will require another amendment to the Constitution to enforce this clause if adopted. I trust, therefore, that when the vote comes to be taken on the pending motion to strike out which is offered by way of instruction to the motion to recommit, it will be adopted, and that afterward the House will, if it deems it important, put such a provision as to the election of Representatives to Congress as it has the lawful right to do in the bill of disfranchisement. Mr. Speaker, there is another section which simply prohibits the United States or any State of this Union from ever assuming or paying any part of the rebel debt or making compensation for emancipated slaves. I do not believe that there is a man on this floor who can answer to his constituency for withholding his vote from that proposition. It involves the future fidelity of the nation. It is a declaration in solemn form, if accepted by the people, that the resources of this great country shall be used in the future, not to liquidate debts contracted in aid of rebellion, not to pay for emancipated slaves, but to maintain inviolate the plighted faith of the nation to all the world and especially to its dead and its living defenders. Mr. Speaker, I trust that this amendment, with or without the third section, will pass this House. I trust that the disfranchisement bill, with or without additions, will pass this House. I trust that the enabling act for the restoration of the States that have been in rebellion will, with amendment, pass this House; so that the

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day may soon come when Tennessee—loyal Tennessee, loyal in the very heart of the rebellion, her mountains and plains blasted by the ravages of war and stained with the blood of her faithful children fallen in the great struggle for the maintenance of the Union—having already conformed her constitution and laws to every provision of this amendment, will at once upon its submission by Congress irrevocably ratify it, and be without further delay represented in Congress by her loyal Representatives and Senators, duly elected and duly qualified and ready to take the oath of office prescribed by existing law. Let that great example be set by Tennessee and it will be worth a hundred thousand votes to the loyal people in the free North. Let this be done and it will be hailed as the harbinger of that day for which all good men pray, when the fallen pillars of the Republic shall be restored without violence or the noise of words or the sound of the hammer, each to its original place in the sacred temple of our national liberties, thereby giving assurance to all the world that for the defense of the Republic it was not in vain that a million and a half of men, the very elect of the earth, rushed to arms; that the Republic still lives, and will live forevermore, the sanctuary of an inviolable justice, the refuge of liberty, and the imperishable monument of the nation’s dead, from the humblest soldier who perished on the march, or went down amid the thunder and tempest of the dread conflict, up through all the shining roll of heroes, and patriots, and martyrs, to the incorruptible and immortal Commander-­in-­Chief, who fell by an assassin’s hand in the capital, and thus died that his country might live. Mr. STEVENS. Mr. Speaker, I rise to conclude the debate, but I will not move the previous question until I finish what I have to say. I am glad, sir, to see great unanimity among the Union friends in this House on all the provisions of this joint resolution except the third one. I am not very much gratified to see any division among our friends on that which I consider the vital proposition of them all. Without that, it amounts to nothing. I do not care the snap of my finger whether it be passed or not if that be stricken out. Before another Congress shall have assembled here, and before this can be carried into full effect, there will be no friends of the Union left on this side of the House to carry it out as— Mr. LE BLOND. Members are crowding the aisles on the other side and the open space in the center of

the House so that we can neither see nor hear what is going on. The SPEAKER. Members must resume their seats. Mr. STEVENS. I should be sorry to find that that provision was stricken out, because before any portion of this can be put into operation there will be, if not a Herod, a worse than Herod elsewhere to obstruct our actions. That side of the House will be filled with yelling secessionists and hissing copperheads. Give us the third section or give us nothing. Do not balk us with the pretense of an amendment which throws the Union into the hands of the enemy before it becomes consolidated. Gentlemen say I speak of party. Whenever party is necessary to sustain the Union I say rally to your party and save the Union. I do not hesitate to say at once, that section is there to save or destroy the Union party, is there to save or destroy the Union by the salvation or destruction of the Union party. The gentleman from Ohio [Mr. Bingham] who has just taken his seat thinks it difficult to carry it into execution, and he proposes to put it into a bill which the President can veto. Will my friend tell me how much easier it is to execute it as a law than as a provision of the Constitution? I say if this amendment prevails you must legislate to carry out many parts of it. You must legislate for the purpose of ascertaining the basis of representation. You must legislate for registry such as they have in Maryland. It will not execute itself, but as soon as it becomes a law, Congress at the next session will legislate to carry it out both in reference to the presidential and all other elections as we have the right to do. So that objection falls to the ground. Gentlemen tell us it is too strong—too strong for what? Too strong for their stomachs, but not for the people. Some say it is too lenient. It is too lenient for my hard heart. Not only to 1870, but to 18070, every rebel who shed the blood of loyal men should be prevented from exercising any power in this Government. That, even, would be too mild a punishment for them. Gentlemen here have said you must not humble these people. Why not? Do not they deserve humiliation? Do not they deserve degradation? If they do not, who does? What criminal, what felon deserves it more, sir? They have not yet confessed their sins; and He who administers mercy and justice never forgives until the sinner confesses his sins and humbles himself at His footstool. Why should we forgive any more than He? But we are told that we must take them back as equal 182

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Ah, sir, it was but six years ago when they were here, just before they went out to join the armies of Catiline, just before they left this Hall. Those of you who were here then will remember the scene in which every southern member, encouraged by their allies, came forth in one yelling body, because a speech for freedom was being made here; when weapons were drawn, and Barksdale’s bowie-­knife gleamed before our eyes. Would you have these men back again so soon to reenact those scenes? Wait until I am gone, I pray you. I want not to go through it again. It will be but a short time for my colleague to wait. I hope he will not put us to that test. Mr. THAYER. Will the gentleman yield? Mr. STEVENS. Yes, sir. Mr. THAYER. This amendment does not affect the eligibility of the people to whom he refers. The portion to which I directed my remarks excludes them from voting; and I wish to ask my colleague in this connection whether he thinks he can build a penitentiary big enough to hold eight million people. Mr. STEVENS. Yes, sir, a penitentiary which is built at the point of the bayonet down below, and if they undertake to come here we will shoot them. That is the way to take care of these people. They deserve it, at least for a time. Now, sir, if the gentleman had remembered the scenes twenty years ago, when no man dared to speak without risking his life, when but a few men did do it— for there were cowards in those days, as there are in these—you would not have found them asking to bring these men in, and I only wonder that my friend from Ohio [Mr. Bingham] should intimate a desire to bring them here. Mr. BINGHAM. I beg the gentleman’s attention one moment. I have not by one word or vote of mine ever justified him in saying that I consent ever to bring them in. Mr. STEVENS. Never; but the gentleman wished to strike out a section and kill this amendment, the most popular before the people of any that can be presented. Mr. BINGHAM. I ask the gentleman to indulge me a moment. The third section does not touch the question of their coming in. Mr. STEVENS. Then why is it you oppose it? If it is going to hurt nobody, in God’s name let it remain. If it is going to hurt anybody, it will be the men that deserve it. Now, Mr. Speaker, I withdraw my motion to recommit, and move the previous question.

brothers at once. I shall not agree they shall come back except as supplicants in sackcloth and ashes. Let them come back and ask forgiveness, and let us then consider how many we will forgive and how many we will exclude. All I regret is, this is not sufficiently stringent. Sir, they tell us, I hear several gentlemen say, that these men should be admitted as equal brethren. Let not these friends of secession sing to me their siren song of peace and good will until they can stop my ears to the screams and groans of the dying victims at Memphis. I hold in my hand an elaborate account from a man whom I know to be of the highest respectability in the country, every word of which I believe. This account of that foul transaction only reached me last night. It is more horrible in its atrocity, although not to the same extent, than the massacre at Jamaica. Tell me Tennessee or any other State is loyal of whom such things are proved! I regret that the true men of these States cannot be brought in, but they cannot be brought in with rebel constituency behind them. They would misrepresent their States. Therefore I can never agree to let them in under the present state of affairs. Let us have probation; let us be sure that something more than mere willingness to come in has been felt by them. Mr. Speaker, I do not intend to occupy many minutes. I was indeed astonished to find my respected colleague, I will not say so tender-­hearted, but so lenient to those toward whom mercy is not rendered necessary. But I know so well his natural kindness of heart and his proximity to that eloquent divine who so lately has slaughtered whole herds of fatted calves, that I cannot be much surprised at it. ... Now, sir, for my part I am willing they shall come in when they are ready. Do not, I pray you, admit those who have slaughtered half a million of our countrymen until their clothes are dried, and until they are reclad. I do not wish to sit side by side with men whose garments smell of the blood of my kindred. Gentlemen seem to forget the scenes that were enacted here years ago. Many of you were not here. But my friend from Ohio [Mr. Garfield] ought to have kept up his reading enough to have been familiar with the history of those days, when the men that you propose to admit occupied the other side of the House; when the mighty Toombs, with his shaggy locks, headed a gang who, with shouts of defiance on this floor, rendered this a hell of legislation. 183

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... The joint resolution was then read the third time, as follows:

by appropriate legislation, the provisions of this article.

A joint resolution proposing an amendment to the Constitution of the United States. Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States, as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid as part of the Constitution, namely:

Article —. Sec. 1. 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 with out due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Sec. 2. 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 twenty-­one years of age, or in any way abridged, except for participation in rebellion 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 twenty-­ one years of age. Sec. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States. Sec. 4. Neither the United States nor any State shall assume or pay any debt or obligation already incurred, or which may hereafter be incurred, in aid of insurrection or of war against the United States, or any claim for compensation for loss of involuntary service or labor. Sec. 5. The Congress shall have power to enforce,

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Mr. STEVENS. I call the previous question on the passage of the joint resolution. The previous question was seconded and the main question ordered. Mr. ELDRIDGE and Mr. LE BLOND called for the yeas and nays on the passage of the joint resolution. Mr. ASHLEY, of Ohio. Does not the Constitution require that the vote upon the passage of an amendment to the Constitution shall be taken by yeas and nays? The SPEAKER. The Constitution requires that the vote shall be taken by yeas and nays upon the passage of a measure over a veto. But it only says that the passage of an amendment to the Constitution shall be by a two-­thirds vote of each House of Congress, but does not say that the vote shall be by yeas and nays. The yeas and nays were ordered. The question was taken; and it was decided in the affirmative—yeas 128, nays 37, not voting 19; as follows: YEAS—Messrs. Alley, Allison, Ames, Anderson, Delos R. Ashley, James M. Ashley, Baker, Baldwin, Banks, Barker, Baxter, Beaman, Benjamin, Bidwell, Bingham, Blaine, Blow, Boutwell, Bromwell, Broomall, Buckland, Bundy, Reader W. Clarke, Sidney Clarke, Cobb, Conkling, Cook, Cullom, Darling, Davis, Dawes, Defrees, Delano, Deming, Dixon, Dodge, Donnelly, Driggs, Dumont, Eckley, Eggleston, Eliot, Farnsworth, Ferry, Garfield, Grinnell, Griswold, Abner C. Harding, Hart, Hayes, Henderson, Higby, Holmes, Hooper, Hotchkiss, Asahel W. Hubbard, Chester D. Hubbard, Demas Hubbard, James R. Hubbell, Hulburd, James Humphrey, Ingersoll, Jenckes, Julian, Kasson, Kelley, Kelso, Ketcham, Kuykendall, Laflin, George V. Lawrence, William Lawrence, Loan, Longyear, Lynch, Marston, McClurg, McIndoe, McKee, McRuer, Mercur, Miller, Moorhead, Morrill, Morris, Moulton, Myers, Newell, O’Neill, Orth, Paine, Patterson, Perham, Pike, Plants, Price, William H. Randall, Raymond, Alexander H. Rice, John H. Rice, Rollins, Sawyer, Schenck, Scofield, Shellabarger, Spalding, Stevens, Stilwell, Thayer, Francis Thomas, John L. Thomas, Trowbridge, Upson, Van Aernam, Burt Van Horn, Robert T. Van Horn, Ward, Warner, Elihu B. Washburne, Henry D. Washburn, William B. Washburn, Welker, Williams, James F. Wilson, Stephen F. Wilson, Windom, Woodbridge, and the Speaker—128. NAYS—Messrs. Ancona, Bergen, Boyer, Chanler, Coffroth, Dawson, Eldridge, Finck, Glossbrenner,

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Good­year, Grider, Aaron Harding, Harris, Kerr, Latham, Le Blond, Marshall, McCullough, Niblack, Phelps, Radford, Samuel J. Randall, Ritter, Rogers, Ross, Rousseau, Shank­ lin, Sitgreaves, Smith, Strouse, Taber, Taylor, Thorn­ton, Trimble, Whaley, Winfield, and Wright—37. NOT VOTING—Messrs. Brandegee, Culver, Denison, Farquhar, Hale, Hill, Hogan, John H. Hubbard, Edwin N. Hubbell, James M. Humphrey, Johnson, Jones, Marvin, Nicholson, Noell, Pomeroy, Sloan, Starr, and Wentworth—19. So, two thirds voting in the affirmative, the joint resolution was passed.

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. Sec. 2. Representatives shall be apportioned among the several States which may be included within the 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 twenty-­ one years of age, or in any way abridged, except for participation in rebellion 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 twenty-­one years of age. Sec. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States. Sec. 4. Neither the United States nor any State shall assume or pay any debt or obligation already incurred, or which may hereafter be incurred, in aid of insurrection or of war against the United States, or any claim for compensation for loss of involuntary service or labor. Sec. 5. The Congress shall have power to enforce by appropriate legislation the provisions of this article.

64 US Senate, Proposed Fourteenth Amendment, Speech of Jacob Howard Introducing the Amendment May 23, 1866*

The Senate, as in Committee of the Whole, proceeded to consider the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States, which was read as follows: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid as part of the Constitution, namely: Article —. Sec. 1. No State shall make or enforce any law which shall abridge the privileges or immunities

* Cong. Globe, 39th Cong., 1st Sess., 2764–67 (May 23, 1866). [Jacob Howard’s speech introducing the Fourteenth Amendment to the Senate was widely published by newspapers across the country. See “Senator Howard’s Speech,” Philadelphia Inquirer, May 24, 1866, 8; New York Times, May 24, 1866, 1; National Intelligencer (Washington, DC), May 24, 1866, 3; New York Herald, May 24, 1866, 1. See also “Speech of Hon. J. M. Howard in the Senate, May 25,” Hillsdale Standard (MI), June 5, 1866. —Ed.]

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Mr. HOWARD. Mr. President, I regret that the state of the health of the honorable Senator from Maine [Mr. Fessenden] who is chairman, on the part of the Senate, of the joint committee of fifteen, is such as to disable him from opening the discussion of this grave and important measure. I was anxious that he should take the lead, and the prominent lead, in the conduct of this discussion, and still entertain the hope that before it closes the Senate will have the benefit of a full and ample statement of his views. For myself, I can only promise to present to the Senate, in a very succinct way, the views and the motives which influenced that committee, so far as I understand those views and motives, in presenting the report which is now before us for consideration, and the ends it aims to accomplish.

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The joint resolution creating that committee intrusted them with a very important inquiry, an inquiry involving a vast deal of attention and labor. They were instructed to inquire into the condition of the insurgent States, and authorized to report by bill or otherwise at their discretion. I believe that I do not overstate the truth when I say that no committee of Congress has ever proceeded with more fidelity and attention to the matter intrusted to them. They have been assiduous in discharging their duty. They have instituted an inquiry, so far as it was practicable for them to do so, into the political and social condition of the insurgent States. It is very true, they have not visited any localities outside of the city of Washington in order to obtain information; but they have taken the testimony of a great number of witnesses who have been summoned by them to Washington, or who happened to be in Washington, and who had some acquaintance with the condition of affairs in the insurgent States. I think it will be the judgment of the country in the end that that committee, so far as the procuring of testimony upon this subject is concerned, has been not only industrious and assiduous, but impartial and entirely fair. I know that such has been their aim. I know that it has not been their purpose to present to Congress and the country in their report anything unfair or one-­sided, or anything of a party tendency. Our anxiety has been to ascertain the whole truth in its entire length and breadth, so far as the facilities given us would warrant. One result of their investigations has been the joint resolution for the amendment of the Constitution of the United States now under consideration. After most mature deliberation and discussion, reaching through weeks and even months, they came to the conclusion that it was necessary, in order to restore peace and quiet to the country and again to impart vigor and efficiency to the laws, and especially to obtain something in the shape of a security for the future against the recurrence of the enormous evils under which the country has labored for the last four years, that the Constitution of the United States ought to be amended; and the project which they have now submitted is the result of their deliberations upon that subject. The first section of the amendment they have submitted for the consideration of the two Houses relates to the privileges and immunities of citizens of the several States, and to the rights and privileges of all persons, whether citizens or others, under the laws of the United States. It declares that—

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.

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It will be observed that this is a general prohibition upon all the States, as such, from abridging the privileges and immunities of the citizens of the United States. That is its first clause, and I regard it as very important. It also prohibits each one of the States from depriving any person of life, liberty, or property without due process of law, or denying to any person within the jurisdiction of the State the equal protection of its laws. The first clause of this section relates to the privileges and immunities of citizens of the United States as such, and as distinguished from all other persons not citizens of the United States. It is not, perhaps, very easy to define with accuracy what is meant by the expression, “citizen of the United States,” although that expression occurs twice in the Constitution, once in reference to the President of the United States, in which instance it is declared that none but a citizen of the United States shall be President, and again in reference to Senators, who are likewise to be citizens of the United States. Undoubtedly the expression is used in both those instances in the same sense in which it is employed in the amendment now before us. A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws. Before the adoption of the Constitution of the United States, the citizens of each State were, in a qualified sense at least, aliens to one another, for the reason that the several States before that event were regarded by each other as independent Governments, each one possessing a sufficiency of sovereign power to enable it to claim the right of naturalization; and, undoubtedly, each one of them possessed for itself the right of naturalizing foreigners, and each one, also, if it had seen fit so to exercise its sovereign power, might have declared the citizens of every other State to be aliens in reference to itself. With a view to prevent such confusion and disorder, and to put the citizens of the several States on an equality with each other as to all fundamental rights, a clause was introduced in the Constitution declaring that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”

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The effect of this clause was to constitute ipso facto the citizens of each one of the original States citizens of the United States. And how did they antecedently become citizens of the several States? By birth or by naturalization. They became such in virtue of national law, or rather of natural law which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country. Such persons were, therefore, citizens of the United States as were born in the country or were made such by naturalization; and the Constitution declares that they are entitled, as citizens, to all the privileges and immunities of citizens in the several States. They are, by constitutional right, entitled to these privileges and immunities, and may assert this right and these privileges and immunities, and ask for their enforcement whenever they go within the limits of the several States of the Union. It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States. I do not propose to go at any length into that question at this time. It would be a somewhat barren discussion. But it is certain the clause was inserted in the Constitution for some good purpose. It has in view some results beneficial to the citizens of the several States, or it would not be found there; yet I am not aware that the Supreme Court have ever undertaken to define either the nature or extent of the privileges and immunities thus guarantied. Indeed, if my recollection serves me, that court, on a certain occasion not many years since, when this question seemed to present itself to them, very modestly declined to go into a definition of them, leaving questions arising under the clause to be discussed and adjudicated when they should happen practically to arise. But we may gather some intimation of what probably will be the opinion of the judiciary by referring to a case adjudged many years ago in one of the circuit courts of the United States by Judge Washington; and I will trouble the Senate but for a moment by reading what that very learned and excellent judge says about these privileges and immunities of the citizens of each State in the several States. It is the case of Corfield vs. Coryell, found in 4 Washington’s Circuit Court Reports, page 380. Judge Washington says: “The next question is whether this act infringes that section of the Constitution which declares that ‘the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States?’

“The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all free Governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would, perhaps, be more tedious than difficult to enumerate. They may, however, be all comprehended 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, or 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 the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental, to which may be added the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each State in every other State was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old Articles of Confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union.’”

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Such is the character of the privileges and immunities 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 guaran-

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tied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the 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 vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments. Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They 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 Congress. Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees. How will it be done under the present amendment? As I have remarked, they are not

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powers granted to Congress, and therefore it is necessary, if they are to be effectuated and enforced, as they assuredly ought to be, that additional power should be given to Congress to that end. This is done by the fifth section of this amendment, which declares that “the Congress shall have power to enforce by appropriate legislation the provisions of this article.” 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. The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Is it not time, Mr. President, that we extend to the black man, I had almost called it the poor privilege of the equal protection of the law? Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body? But, sir, the first section of the proposed amendment does not give to either of these classes the right of voting. The right of suffrage is not, in law, one of the privileges or immunities thus secured by the Constitution. It is merely the creature of law. It has always been regarded in this country as the result of positive local law, not regarded as one of those fundamental rights lying at the basis of all society and without which a people cannot exist except as slaves, subject to a despotism. As I have already remarked, section one is a restriction upon the States, and does not, of itself, confer any power upon Congress. The power which Congress has, under this amendment, is derived, not from that section, but from the fifth section, which gives it authority to pass laws which are appropriate to the attainment of the great object of the amendment. I look upon the first

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section, taken in connection with the fifth, as very important. It will, if adopted by the States, forever disable every one of them from passing laws trenching upon these fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction. It establishes equality before the law, and it gives to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty. That, sir, is republican government, as I understand it, and the only one which can claim the praise of a just Government. Without this principle of equal justice to all men and equal protection under the shield of the law, there is no republican government and none that is really worth maintaining. The second section of the proposed amendment reads as follows: Sec. 2. Representatives shall be apportioned among the several States which may be included within the 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 twenty-­one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens—

That is, citizens as to whom the right of voting is denied or abridged— shall bear to the whole number of male citizens not less than twenty-­one years of age.

It is very true, and I am sorry to be obliged to acknowledge it, that this section of the amendment does not recognize the authority of the United States over the question of suffrage in the several States at all; nor does it recognize, much less secure, the right of suffrage to the colored race. I wish to meet this question fairly and frankly; I have nothing to conceal upon it; and I am perfectly free to say that if I could have my own way, if my preferences could be carried out, I certainly should secure suffrage to the colored race to some extent at least; for I am opposed to the exclusion and proscription of an entire race. If I could not obtain universal suffrage in the popular sense of that expression, I should

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be in favor of restricted, qualified suffrage for the colored race. But, sir, it is not the question here what will we do; it is not the question what you, or I, or half a dozen other members of the Senate may prefer in respect to colored suffrage; it is not entirely the question what measure we can pass through the two Houses; but the question really is, what will the Legislatures of the various States to whom these amendments are to be submitted do in the premises; what is it likely will meet the general approbation of the people who are to elect the Legislatures, three fourths of whom must ratify our propositions before they have the force of constitutional provisions? Let me not be misunderstood. I do not intend to say, nor do I say, that the proposed amendment, section two, proscribes the colored race. It has nothing to do with that question, as I shall show before I take my seat. I could wish that the elective franchise should be extended equally to the white man and to the black man; and if it were necessary, after full consideration, to restrict what is known as universal suffrage for the purpose of securing this equality, I would go for a restriction; but I deem that impracticable at the present time, and so did the committee. The colored race are destined to remain among us. They have been in our midst for more than two hundred years; and the idea of the people of the United States ever being able by any measure or measures to which they may resort to expel or expatriate that race from their limits and to settle them in a foreign country, is to me the wildest of all chimeras. The thing can never be done; it is impracticable. For weal or for woe, the destiny of the colored race in this country is wrapped up with our own; they are to remain in our midst, and here spend their years and here bury their fathers and finally repose themselves. We may regret it. It may not be entirely compatible with our taste that they should live in our midst. We cannot help it. Our forefathers introduced them, and their destiny is to continue among us; and the practical question which now presents itself to us is as to the best mode of getting along with them. The committee were of opinion that the States are not yet prepared to sanction so fundamental a change as would be the concession of the right of suffrage to the colored race. We may as well state it plainly and fairly, so that there shall be no misunderstanding on the subject. It was our opinion that three fourths of the States of this Union could not be induced to vote to grant the right of suffrage, even in any degree or under any restriction,

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in the Constitution, shall remain operative for the future, making our calculations upon the census of 1860, the enfranchisement of their slaves would increase the number of their Representatives in the other House nine or ten, I think at least ten; and under the next census it is easy to see that this number would be still increased; and the important question now is, shall this be permitted while the colored population are excluded from the privilege of voting? Shall the recently slaveholding States, while they exclude from the ballot the whole of their black population, be entitled to include the whole of that population in the basis of their representation, and thus to obtain an advantage which they did not possess before the rebellion and emancipation? In short, shall we permit it to take place that one of the results of emancipation and of the war is to increase the Representatives of the late slaveholding States? I object to this. I think they cannot very consistently call upon us to grant them an additional number of Representatives simply because in consequence of their own misconduct they have lost the property which they once possessed, and which served as a basis in great part of their representation. The committee thought this should no longer be permitted, and they thought it wiser to adopt a general principle applicable to all the States alike, namely, that where a State excludes any part of its male citizens from the elective franchise, it shall lose Representatives in proportion to the number so excluded; and the clause applies not to color or to race at all, but simply to the fact of the individual exclusion. Nor did the committee adopt the principle of making the ratio of representation depend upon the number of voters, for it so happens that there is an unequal distribution of voters in the several States, the old States having proportionally fewer than the new States. It was desirable to avoid this inequality in fixing the basis. The committee adopted numbers as the most just and satisfactory basis, and this is the principle upon which the Constitution itself was originally framed, that the basis of representation should depend upon numbers; and such, I think, after all, is the safest and most secure principle upon which the Government can rest. Numbers, not voters; numbers, not property; this is the theory of the Constitution. By the census of 1860, the whole number of colored persons in the several States was four million four hundred and twenty-­seven thousand and sixty-­seven. In five of the New England States, where colored persons

to the colored race. We may be right in this apprehension or we may be in error. Time will develop the truth; and for one I shall wait with patience the movements of public opinion upon this great and absorbing question. The time may come, I trust it will come, indeed I feel a profound conviction that it is not far distant, when even the people of the States themselves where the colored population is most dense will consent to admit them to the right of suffrage. Sir, the safety and prosperity of those States depend upon it; it is especially for their interest that they should not retain in their midst a race of pariahs, so circumstanced as to be obliged to bear the burdens of Government and to obey its laws without any participation in the enactment of the laws. The second section leaves the right to regulate the elective franchise still with the States, and does not meddle with that right. Its basis of representation is numbers, whether the numbers be white or black; that is, the whole population except untaxed Indians and persons excluded by the State laws for rebellion or other crime. Formerly under the Constitution, while the free States were represented only according to their respective numbers of men, women, and children, all of course endowed with civil rights, the slave States had the advantage of being represented according to their number of the same free classes, increased by three fifths of the slaves whom they treated not as men but property. They had this advantage over the free States, that the bulk of their property in the proportion of three fifths had the right of representation in Congress, while in the free States not a dollar of property entered into the basis of representation. John Jacob Astor, with his fifty millions of property, was entitled to cast but one vote, and he at the ballot-­box would meet his equal in the raggedest beggar that strolled the streets. Property has been rejected as the basis of just representation; but still the advantage that was given to the slave States under the Constitution enabled them to send at least twenty-­one members to Congress in 1860, based entirely upon what they treated as property—a number sufficient to determine almost every contested measure that might come before the House of Representatives. The three-­fifths principle has ceased in the destruction of slavery and in the enfranchisement of the colored race. Under the present Constitution this change will increase the number of Representatives from the once slave-­holding States by nine or ten. That is to say, if the present basis of representation, as established 190

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are allowed to vote, the number of such colored persons is only twelve thousand one hundred and thirty-­ two. This leaves of the colored population of the United States in the other States unrepresented, four million four hundred and fourteen thousand nine hundred and thirty-­five, or at least one seventh part of the whole population of the United States. Of this last number, three million six hundred and fifty thousand were in the eleven seceding States, and only five hundred and forty-­seven thousand in the four remaining slave States which did not secede, namely, Delaware, Maryland, Kentucky, and Missouri. In the eleven seceding States the blacks are to the whites, basing the calculation upon the census of 1860, nearly as three to five. A further calculation shows that if this section shall be adopted as a part of the Constitution, and if the late slave States shall continue hereafter to exclude the colored population from voting, they will do it at the loss at least of twenty-­four Representatives in the other House of Congress, according to the rule established by the act of 1850. I repeat, that if they shall persist in refusing suffrage to the colored race, if they shall persist in excluding that whole race from the right of suffrage, they will lose twenty-­four members of the other House of Congress. Some have estimated their loss more and some less; but according to the best calculation I have been able to make, I think that will be the extent. It is not to be disguised—the committee have no disposition to conceal the fact—that this amendment is so drawn as to make it the political interest of the once slaveholding States to admit their colored population to the right of suffrage. The penalty of refusing will be severe. They will undoubtedly lose, and lose so long as they shall refuse to admit the black population to the right of suffrage, that balance of power in Congress which has been so long their pride and their boast. It will be observed, however, that this amendment does not apply exclusively to the insurgent States, nor to the slaveholding States, but to all States without distinction. It says to all the States, “If you restrict suffrage among your people, whether that people be white or black or mixed, your representation in Congress shall be reduced in proportion to that restriction.” It holds out the same penalty to Massachusetts as to South Carolina, the same to Michigan as to Texas. Mr. CLARK. If the Senator will pardon me for a moment, I wish to inquire whether the committee’s attention was called to the fact that if any State excluded any 191

person, say as Massachusetts does, for want of intelligence, this provision cuts down the representation of that State. Mr. HOWARD. Certainly it does, no matter what may be the occasion of the restriction. It follows out the logical theory upon which the Government was founded, that numbers shall be the basis of representation in Congress, the only true, practical, and safe republican principle. ... Mr. STEWART. I wish to call the attention of the Senator to the word “abridged” before he passes from that branch of the subject. I should like to understand the operation intended by that expression. Mr. HOWARD. The word “abridged” I regard as a mere intensitive, applicable to the preceding sentence, “but whenever, in any State, the elective franchise shall be denied to any portion of its male citizens not less than twenty-­one years of age, or in any way abridged” to any portion of its male citizens not less than twenty-­one “except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens”—that is, the number of citizens as to whom it is either denied or abridged—“shall bear to the whole number of male citizens not less than twenty-­one years of age.” I suppose it would admit of the following application: a State in the exercise of its sovereign power over the question of suffrage might permit one person to vote for a member of the State Legislature, but prohibit the same person from voting for a Representative in Congress. That would be an abridgment of the right of suffrage; and that person would be included in the exclusion, so that the representation from the State would be reduced in proportion to the exclusion of persons whose rights were thus abridged. ... But as to the principle of representation, I beg to call the attention of Senators to two passages which I will read from the Writings of Mr. Madison, whose reflections upon the right of suffrage were at once the most enlightened and profound, to show what were his ideas respecting the right of suffrage and the persons to whom it ought to be granted. It applies to this whole subject. They apply as well to the negro as to the white man. Mr. Madison has been discussing the question of confining the right of suffrage to freeholders, and he observes:

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“Confining the right of suffrage to freeholders and to such as hold an equivalent property, convertible, of course, into freeholds. The objection to this regulation is obvious. It violates the vital principle”—

excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States.

It is due to myself to say that I did not favor this section of the amendment in the committee. I do not believe, if adopted, it will be of any practical benefit to the country. It will not prevent rebels from voting for members of the several State Legislatures. A rebel, notwithstanding this clause, may vote for a member of the State Legislature. The State Legislature may be made up entirely of disloyal elements, in consequence of being elected by a rebel constituency. That Legislature when assembled has the right, under the Constitution, to appoint presidential electors itself if it shall choose to do so, and to refuse to refer that question to the people. It is the right of every State. It is very probable that the power of the rebel States would be used in exactly that way. We should therefore gain nothing as to the election of the next or any future President of the United States. Rather than this, I should prefer a clause prohibiting all persons who have participated in the rebellion, and who were over twenty-­five years of age at the breaking out of the rebellion, from all participation in offices, either Federal or State, throughout the United States. I think such a provision would be a benefit to the nation. It would ostracize the great mass of the intelligent and really responsible leaders of the rebellion. ... The fourth section of this amendment declares that—

Here my honorable friend from Massachusetts will observe what I regard as the vital principle of republican government; it is not representation because of taxation; it is this— “the vital principle of free government, that those who are to be bound by the laws ought to have a voice in making them.”

That is the point; that those who are to be bound by the laws ought to have a voice in making the laws. Mr. JOHNSON. Does the honorable member read from Madison’s Writings? Mr. HOWARD. The fourth volume of Madison’s Writings, page 25.* ... Now, apply that great principle as broadly as it is laid down by Mr. Madison on the page from which I have read, and how can any man of true republican feeling, attached to the essential principles of our system of government, refuse the right of suffrage to the whole negro population as a class? Mr. JOHNSON. Females as well as males? Mr. HOWARD. Mr. Madison does not say anything about females. Mr. JOHNSON. “Persons.” Mr. HOWARD. I believe Mr. Madison was old enough and wise enough to take it for granted there was such a thing as the law of nature which has a certain influence even in political affairs, and that by that law women and children were not regarded as the equals of men. Mr. Madison would not have quibbled about the question of women’s voting or of an infant’s voting. He lays down a broad democratic principle, that those who are to be bound by the laws ought to have a voice in making them; and everywhere mature manhood is the representative type of the human race. I have but little to say, Mr. President, as to the third section of this amendment. It reads as follows:

Neither the United States nor any State shall assume or pay any debt or obligation already incurred, or which may hereafter be incurred, in aid of insurrection or of war against the United States, or any claim for compensation for loss of involuntary service or labor.

Sec. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be

* [Howard is reading from Letters and Other Writings of James Madison (Philadelphia: J. B. Lippincott, 1865), 4:25. —Ed.]

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I take it for granted that no member of this body would oppose the adoption of this section of the amendment. I do not believe the people of the United States will object to declaring that the whole of the rebel debt shall be eternally repudiated and extinguished—a debt contracted in the prosecution of the most wicked war with which the earth was ever cursed, against a Government that was never felt by them except in the benefits it conferred. Such a debt can never be assumed or paid by the loyal people of the United States, and if suffered to remain in quasi existence it can only be left in that condition as a subject of political squabbling and party wrangling.

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... The amount of that debt is probably not less than five billion dollars. We do not know its exact amount, and I am not sure that it is possible ever to ascertain it; but if there should ever be a fair prospect of its assumption by the United States or by the States it is perfectly certain that the evidences of it would multiply thicker than the leaves in Vallombrosa. ... The next clause is a very simple one. I have already remarked upon it; and shall spend no more time upon it. It 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 seeing 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 indispensable for the reason that it thus imposes upon Congress this power and this duty. It enables Congress, in case the States shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment.

65 “The Reconstruction Debate in the Senate, Mr. Howard Speaks on Behalf of the Committee,” New York Times May 24, 1866, p. 1*

Mr. Howard took the floor to explain the proposition in behalf the Special Committee of Fifteen. ... The first section of the proposed amendment relates to the privileges and immunities of the citizens of the several States of the Union, and to the rights and privileges of all persons other than citizens under the laws of the United States. It declares that no State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall

* [The debate reported here took place on May 23, 1866. —Ed.]

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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 law. It will be observed that this is a general prohibition upon all the States as such from abridging the privileges and immunities of the citizens of the United States. ... The first clause of this section relates to the privileges and immunities of the citizens of the United States as such, and as distinguished from all other persons who are not citizens of the United States. It is not, perhaps, very easy to define with accuracy what is meant by the expression “citizen of the United States.” . . . A citizen of the United States is, I believe, held to be a person who was born within the limits of the United States, and subject to their laws on the adoption of the Constitution. . . . with a view to put the citizens of the several States upon an equality one with another in reference to certain fundamental rights, a clause was introduced into the Constitution declaring that the citizens of each State shall be entitled to the privileges and immunities of the citizens of the several States. . . . It would be a curious question to solve, what are the privileges and immunities of the citizens in each State in the several States? I do not propose to go into that question at present. It would be rather a barren discussion. But it is certain that that clause was inserted in the Constitution for some good purpose. . . . I am not aware that the Supreme Court of the United States have undertaken to define either the nature or extent of these privileges and immunities thus guaranteed to the citizens of the several States. . . . But we gather something of what probably will be the opinion of the Judiciary in that very important question, by a reference to a case which was decided many years ago in one of the Circuit Courts of the United States by Judge Washington. I will trouble the Senate a little while by reading what that learned and excellent Judge says of these privileges and immunities of the citizens of the several States from the fourth Washington Circuit Court reports, page 380. Mr. Howard having read from the work referred to and continued: Such, then, is the character of the privileges and immunities spoken of in the Constitution, in the second section of the fourth article. I believe to these privileges and immunities may be added the personal right guaranteed by the first eight amendments of the United States, such as freedom of speech and of the press, the right of the people peaceably to assemble and petition Government for a redress of grievances—a right

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pertaining to each and all of the people—the right to keep and bear arms—the right to be exempt from the quartering of soldiers in a house without the consent of the owner—to be exempt from unreasonable searches and seizures, &c. Here is a mass of privileges and immunities and rights—some of them secured by the second section of the fourth article of the Constitution—which I have recited; some of them secured by the amendments to the Constitution, to which I have referred. And it is a fact well worthy the attention of gentlemen, that the course of the decisions of our Courts and the present doctrine is that all these immunities and all these rights thus guaranteed by the Constitution, are secured to citizens of the United States solely as citizens of the United States; and as parties in their Courts they do not operate in the slightest degree as a restraint or prohibition upon the States themselves. States are not affected by these restrictions, and it has been held repeatedly that these restrictions contained in the Constitution, declaring that private property shall not be taken for public use without just compensation, is not a restriction upon the State Legislatures at all, and refers exclusively to the legislature of Congress. Now there is no power in the Constitution to enforce any of these guarantees which I have mentioned. There is no power granted by the Constitution to Congress, and as such do not come within the sweeping clause in the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing powers, and they extend simply to declarations of rights as a bill of rights in the Constitution, without powers on the part of Congress to carry them out and give them effect, while, at the same time, the States are not restrained from violating the principles in their guarantees except by their own local laws, which may be altered from year to year and almost from day to day. The great object of the first section of this amendment is to restrain the power of the States, and to compel them at all times to respect these great fundamental guarantees, which I have ­enumerated.

66 US Senate, Proposed Fourteenth Amendment, Debate, Citizenship Clause Added, Section Three Removed and Replaced, Alterations to Section Four May 29, 1866*

The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States, the pending question being on the amendment offered by Mr. Johnson to strike out the third section, in the following words: Sec. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice President of the United States.

Mr. HOWARD. I hope the vote will be taken on that motion. Mr. JOHNSON. Is there anything proposed as a substitute for that section? Mr. CLARK. Your motion precludes that now. You move to strike out, simply. Mr. JOHNSON. I ask for the yeas and nays upon the amendment. The yeas and nays were ordered; and being taken, resulted—yeas 43, nays 0; as follows: YEAS—Messrs. Anthony, Buckalew, Chandler, Clark, Conness, Cowan, Cragin, Creswell, Davis, Doolittle, Edmunds, Fessenden, Foster, Grimes, Guthrie, Har­ris, Henderson, Hendricks, Howard, Howe, Johnson, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nesmith, Norton, Nye, Poland, Pomeroy, Ram­sey, Riddle, Saulsbury, Sherman, Stewart, Sumner, Trum­bull, Van Winkle, Wade, Willey, Williams, and Wilson—43. NAYS—0.

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* Cong. Globe, 39th Cong., 1st Sess., 2869 (May 29, 1866).

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ABSENT: Messrs. Brown, Dixon, McDougall, Sprague, Wright, and Yates—6. So the amendment was agreed to. Mr. HOWARD. I now offer a series of amendments to the joint resolution under consideration, which I will send to the Chair. Mr. FESSENDEN. Take them one section at a time. Mr. HOWARD. I will state very briefly what they are. I propose to amend section one of the article by adding after the words “section one” the following words, which will of course constitute a part of section one:

Section four, as it now stands, will be changed to section five, and I propose to amend that section as follows: strike out the word “already,” in line thirty-­four, and also the words “or which may hereafter be incurred,” in line thirty-­five, and also the words “or of war” in lines thirty-­ five and thirty-­six, and insert the word “rebellion” in lieu thereof; and also strike out the words “loss of involuntary service or labor” in line thirty-­seven, and insert “the loss or emancipation of any slave; but all such debts, obligations, and claims shall be forever held illegal and void.” After consultation with some of the friends of this measure it has been thought that these amendments will be acceptable to both Houses of Congress and to the country, and I now submit them to the consideration of the Senate.

All persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and of the States wherein they reside.

The second amendment— Mr. FESSENDEN. Let us take a vote on the first one. Mr. TRUMBULL. The Senator had better state all the amendments. Mr. JOHNSON. I hope we shall hear them all. Mr. HOWARD. The second amendment is to amend the second section by striking out the word “citizens,” in the twentieth line, where it occurs, and inserting after the word “male” the words “inhabitants, being citizens of the United States;” and by inserting at the end of that section the words “any such State.” The third section has already been stricken out. Instead of that section, or rather in its place, I offer the following:

67 US Senate, Proposed Fourteenth Amendment, Debate May 30, 1866*

Mr. HOWARD. I now move to take up House joint resolution No. 127. The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States. The PRESIDENT pro tempore. The question is on the amendments proposed by the Senator from Michigan, [Mr. Howard.] Mr. HOWARD. The first amendment is to section one, declaring that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a

Sec. 3. No person shall be a Senator or Representative in Congress, or an elector of President and 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. The following is to come in as section four:

The obligations of the United States incurred in suppressing insurrection, or in defense of the Union or for payment of bounties or pensions incident thereto, shall remain inviolate.

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* Cong. Globe, 39th Cong., 1st Sess., 2890–902 (May 30, 1866).

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citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country. The PRESIDENT pro tempore. The first amendment proposed by the Senator from Michigan will be read. The Secretary read the amendment, which was in line nine, after the words “section one,” to insert: All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. So that the section will read:

Sec. 1. All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. 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.

Mr. DOOLITTLE. I presume the honorable Senator from Michigan does not intend by this amendment to include the Indians. I move, therefore, to amend the amendment—I presume he will have no objection to it—by inserting after the word “thereof ” the words “excluding Indians not taxed.” The amendment would then read: All persons born in the United States, and subject to the jurisdiction thereof, excluding Indians not taxed, are citizens of the United States and of the States wherein they reside.

Mr. HOWARD. I hope that amendment to the amendment will not be adopted. Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations. Mr. COWAN. The honorable Senator from Michigan

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has given this subject, I have no doubt, a good deal of his attention, and I am really desirous to have a legal definition of “citizenship of the United States.” What does it mean? What is its length and breadth? I would be glad if the honorable Senator in good earnest would favor us with some such definition. Is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen? If so, what rights have they? Have they any more rights than a sojourner in the United States? If a traveler comes here from Ethiopia, from Australia, or from Great Britain, he is entitled, to a certain extent, to the protection of the laws. You cannot murder him with impunity. It is murder to kill him, the same as it is to kill another man. You cannot commit an assault and battery on him, I apprehend. He has a right to the protection of the laws; but he is not a citizen in the ordinary acceptation of the word. It is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power. He is not entitled, by virtue of that, to be an elector. An elector is one who is chosen by the people to perform that function, just the same as an officer is one chosen by the people to exercise the franchises of an office. Now, I should like to know, because really I have been puzzled for a long while and have been unable to determine exactly, either from conversation with those who ought to know, who have given this subject their attention, or from the decisions of the Supreme Court, the lines and boundaries which circumscribe that phrase, “citizen of the United States.” What is it? So far as the courts and the administration of the laws are concerned, I have supposed that every human being within their jurisdiction was in one sense of the word a citizen, that is, a person entitled to protection; but in so far as the right to hold property, particularly the right to acquire title to real estate, was concerned, that was a subject entirely within the control of the States. It has been so considered in the State of Pennsylvania; and aliens and others who acknowledge no allegiance, either to the State or to the General Government, may be limited and circumscribed in that particular. I have supposed, further, that it was essential to the existence of society itself, and particularly essential to the existence of a free State, that it should have the power, not only of declaring who should exercise political power within its boundaries, but that if it were overrun by another and a different race, it would have the right to absolutely expel them. I do not know that there

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is any danger to many of the States in this Union; but is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race? Are they to be immigrated out of house and home by Chinese? ... Mr. CONNESS. ... If my friend from Pennsylvania, who professes to know all about Gypsies and little about Chinese, knew as much of the Chinese and their habits as he professes to do of the Gypsies, (and which I concede to him, for I know nothing to the contrary,) he would not be alarmed in our behalf because of the operation of the proposition before the Senate, or even the proposition contained in the civil rights bill, so far as it involves the Chinese and us. The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States. ... We are not troubled with them at all. Indeed, it is only in exceptional cases that they have children in our State; and therefore the alarming aspect of the application of this provision to California, or any other land which the Chinese may come as immigrants, is simply a fiction in the brain of persons who deprecate it, and that alone. ... Mr. DOOLITTLE. ... Mr. President, the celebrated civil rights bill which has been passed during the present Congress, which was the forerunner of this constitutional amendment, and to give validity to which this constitutional amendment is brought forward, and which without this constitutional amendment to enforce it has no validity so far as this question is concerned, uses the following language: “That all persons born in the United States, and not subject to any foreign Power, excluding Indians

not taxed, are hereby declared to be citizens of the United States.”

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Why should this language be criticised any more now, when it is brought forward here in this constitutional amendment, than when it was in the civil rights bill? Why should the language be more criticised here than it is in the second section of this constitutional amendment, where the same words are used? The second section, in apportioning representation, proposes to count the whole number of persons in each State, “excluding Indians not taxed.” Why not insert those words in the first section as well as in the second? Why not insert them in this constitutional amendment as well as in the civil rights bill? The civil rights bill undertook to do this same thing. It undertook to declare that “all persons born in the United States, and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” But, sir, the committee of fifteen, fearing that this declaration by Congress was without validity unless a constitutional amendment should be brought forward to enforce it, have thought proper to report this amendment. Mr. FESSENDEN. I want to say to the honorable Senator, who has a great regard for truth, that he is drawing entirely upon his imagination. There is not one word of correctness in all that he is saying, not a particle, not a scintilla, not the beginning of truth. Mr. DOOLITTLE. I take a little issue with my friend from Maine on that point as a question of fact. Mr. FESSENDEN. In the first place, this was not brought forward by the committee of fifteen at all. Mr. DOOLITTLE. This proposition was first introduced into the House by a gentleman from Ohio by the name of Bingham. Mr. FESSENDEN. I thought the Senator was speaking of this first part of the section, the amendment, not the whole. Mr. DOOLITTLE. No, sir; that is proposed by the Senator from Michigan. As I understand, a member from Ohio, Mr. Bingham, who in a very able speech in the House maintained that the civil rights bill was without any authority in the Constitution, brought forward a proposition in the House of Representatives to amend the Constitution so as to enable Congress to declare the civil rights of all persons, and that constitutional amendment, Mr. Bingham being himself one of the committee of fifteen, was referred by the House to that committee, and from the committee it has been re-

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ported. I say I have a right to infer that it was because Mr. Bingham and others of the House of Representatives and other persons upon the committee had doubts, at least, as to the constitutionality of the civil rights bill that this proposition to amend the Constitution now appears to give it validity and force. It is not an imputation upon any one. Mr. GRIMES. It is an imputation upon every member who voted for the bill, the inference being legitimate and logical that they violated their oaths and knew they did so when they voted for the civil rights bill. Mr. DOOLITTLE. The Senator goes too far. What I say is that they had doubts. Mr. FESSENDEN. I will say to the Senator one thing: whatever may have been Mr. Bingham’s motives in bringing it forward, he brought it forward some time before the civil rights bill was considered at all and had it referred to the committee, and it was discussed in the committee long before the civil rights bill was passed. Then I will say to him further, that during all the discussion in the committee that I heard nothing was ever said about the civil rights bill in connection with that. It was placed on entirely different grounds. Mr. DOOLITTLE. I will ask the Senator from Maine this question: if Congress, under the Constitution now has the power to declare that “all persons born in the United States, and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens of the United States,” what is the necessity of amending the Constitution at all on this subject? Mr. FESSENDEN. I do not choose that the Senator shall get off from the issue he presented. I meet him right there on the first issue. If he wants my opinion upon other questions, he can ask it afterward. He was saying that the committee of fifteen brought this proposition forward for a specific object. Mr. DOOLITTLE. I said the committee of fifteen brought it forward because they had doubts as to the constitutional power of Congress to pass the civil rights bill. Mr. FESSENDEN. Exactly; and I say, in reply, that if they had doubts, no such doubts were stated in the committee of fifteen, and the matter was not put on that ground at all. There was no question raised about the civil rights bill. Mr. DOOLITTLE. Then I put the question to the Senator: if there are no doubts, why amend the Constitution on that subject? Mr. FESSENDEN. That question the Senator may

answer to suit himself. It has no reference to the civil rights bill. Mr. DOOLITTLE. That does not meet the case at all. If my friend maintains that at this moment the Constitution of the United States, without amendment, gives all the power you ask, why do you put this new amendment into it on that subject? Mr. HOWARD. If the Senator from Wisconsin wishes an answer, I will give him one such as I am able to give. Mr. DOOLITTLE. I was asking the Senator from Maine. Mr. HOWARD. I was a member of the same committee, and the Senator’s observations apply to me equally with the Senator from Maine. We desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power of such gentlemen as the Senator from Wisconsin, who would pull the whole system up by the roots and destroy it, and expose the freedmen again to the oppressions of their old masters. Mr. DOOLITTLE. The Senator has made his answer, I suppose. Mr. HOWARD. Yes, sir. ... The PRESIDENT pro tempore. The question is on the amendment of the Senator from Wisconsin to the amendment proposed by the Senator from Michigan. Mr. DOOLITTLE. I ask for the yeas and nays on that question. The yeas and nays were ordered. Mr. VAN WINKLE. I desire to have the amendment to the amendment read. The Secretary read the amendment to the amendment, which was to insert after the word “thereof ” in the amendment the words “excluding Indians not taxed;” so that the amendment, if amended, would read: All persons born in the United States, and subject to the jurisdiction thereof, excluding Indians not taxed, are citizens of the United States and of the State wherein they reside.

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The question being taken by yeas and nays, resulted—yeas 10, nays 30; as follows: YEAS—Messrs. Buckalew, Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, McDougall, Norton, and Riddle—10. NAYS—Messrs. Anthony, Clark, Conness, Cragin, Creswell, Edmunds, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Kansas,

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Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Stewart, Sumner, Trumbull, Van Winkle, Wade, Willey, Williams, and Wilson—30. ABSENT—Messrs. Brown, Chandler, Dixon, Lane of Indiana, Nesmith, Saulsbury, Sprague, Wright, and Yates—9. So the amendment to the amendment was rejected. The PRESIDENT pro tempore. The question now is on the amendment of the Senator from Michigan. The amendment was agreed to. The PRESIDENT pro tempore. The next amendment proposed by the Senator from Michigan [Mr. Howard] will be read. The Secretary read the amendment, which was in section two, line twenty-­two, after the word “male,” to strike out the word “citizens” and insert “inhabitants, being citizens of the United States;” so as to make the section read:

Mr. JOHNSON. I am satisfied. The amendment was agreed to. Mr. SAULSBURY. Is it in order now to offer an amendment to the first section? The PRESIDENT pro tempore. There are several more amendments before the Senate, offered by the Senator from Michigan, [Mr. Howard,] not yet acted upon. The next amendment offered by him will be read. The Secretary read the amendment, which was to add at the end of section two the words “in such State.” The amendment was agreed to. The next amendment was to insert as section three the following: Sec. 3. That no person shall be a Senator or Representative in Congress, or elector of President and 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.

Sec. 2. Representatives shall be apportioned among the several States which may be included within the 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 inhabitants, being citizens of the United States, not less than twenty-­one years of age, or in any way abridged, except for participation in rebellion 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 twenty-­one years of age.

Mr. JOHNSON. Is it supposed that that amendment changes the section as it was before? It appears to me to be the same as it was before, because, although the word “inhabitants” is used, it is in connection with the other words that they are to be citizens of the United States. As it originally stood it read: But whenever, in any State, the elective franchise shall be denied to any portion of its male citizens.

Mr. FESSENDEN. The object is the same as in the amendment already made, to prevent a State from saying that although a person is a citizen of the United States he is not a citizen of the State. Mr. HOWARD. The object is to make section two conform to section one, to make them harmonize.

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... Mr. JOHNSON. ... I have had occasion to say more than once, and the idea is so fully impressed upon my mind that I hope the Senate will excuse me for reiterating it, that we ought to consider, it is due to justice to consider, it is due to generosity and magnanimity to consider, that many of the men who will be excluded by this constitutional amendment from sharing in the honors of the country believed that the Constitution as it stood gave them the right to secede. Illegal as the notion was in my judgment, yet some of the brightest intellects in the country, North as well as South, maintained the same doctrine; and the war, therefore, in which we have been engaged was not a war like the civil wars which have existed in other countries. It was a war growing out of a difference of constitutional opinion, to say nothing of anything else. The opinion entertained by the South was as honest as was the opinion entertained by the North—wrong, dangerous, unconstitutional, inconsistent as I think it is with the continuance of any Union to be formed out of

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the States of the United States, but still honestly entertained. Now they have become satisfied by the result of the conflict that their doctrine was one which could not be maintained and never will be suffered to exist as long as the people of the United States are true to the interest and the prosperity and renown of the country. Why, then, should we exclude the numerous class that will be excluded by this provision? Do you not want to act upon the public opinion of the masses of the South? Do you not want to win them back to loyalty? And if you do, why strike at the men who, of all others, are most influential and can bring about the end which we all have at heart?

and amnesty have already been given. I know it may be said that by an amendment of the Constitution of the United States, which is the supreme law of the land, you can annul all existing rights. You could, perhaps, by an amendment to the Constitution of the United States, enact a provision which would deprive individual citizens of their property, and vest the whole of it in the government of a State or in the Government of the United States; you might, perhaps, by a constitutional amendment, pass a bill of attainder by which certain men should be sentenced to death and to corruption of blood; but, sir, would it be right? That is the question. Where men in good faith have taken this oath and accepted the terms of this amnesty and pardon, is it right to undertake, by a constitutional amendment, to rob them of this vested right? Sir, I have never been taught to believe that might was right, or that such a provision would be right because we had the power to pass it. I maintain that good faith, the good faith of this Government which was pledged by the Congress of the United States, and the President acting under the authority of Congress, requires us not to undertake to destroy or take away the rights which we ourselves have vested. Our honor is involved in it, and we cannot, as honorable men, it seems to me, undertake to annul what we ourselves have given and they have accepted in good faith. ... The question recurring upon the amendment of Mr. Howard, the yeas and nays were taken, with the following result: YEAS—Messrs. Anthony. Chandler, Clark, Conness, Cragin, Creswell, Edmunds, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sprague, Stewart, Sumner, Trumbull, Van Winkle, Wade, Willey, Williams, and Wilson—32. NAYS—Messrs. Buckalew, Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, Norton, Riddle, and Saulsbury—10. ABSENT—Messrs. Brown, Dixon, McDougall, Nesmith, Sherman, Wright, and Yates—7. So the amendment was agreed to.

68 US Senate, Proposed Fourteenth Amendment, Debate Continued May 31, 1866*

The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States, the pending question being on the amendment of Mr. Howard to insert as section three of the proposed article of constitutional amendment the ­following: That no person shall be a Senator or Representative in Congress, or elector of President and 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.

Mr. DOOLITTLE. ... [S]ir, this amendment proposed to the Constitution embraces large numbers of persons to whom pardon * Cong. Globe, 39th Cong., 1st Sess., 2914–21 (May 31, 1866).

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we be again a united and powerful people? Shall trade and commerce return again to their ancient channels, and prosperity attend all the pursuits of the people? You may throw yourselves across the pathway of the people, and by shouting copperhead and sympathizer hope to frighten the timid, but you will not be able to check or turn them in their onward progress, because they now follow a banner upon which is written in letters of light “reconciliation and Union.” The PRESIDING OFFICER, (Mr. Clark in the chair.) The question is on the amendment of the Senator from Michigan to insert an additional section as section four. The amendment was agreed to. The next amendment of Mr. Howard was in section [four] five, line forty-­six, to strike out the word “already” before the word “incurred;” in line forty-­seven to strike out the words “or which may hereafter be incurred;” in line forty-­eight to strike out the words “of war” and insert the word “rebellion;” in line forty-­nine to strike out the words “loss of involuntary service or labor” and to insert “the loss or emancipation of any slave; but all such debts, obligations, and claims shall be forever held illegal and void;” so that the section will read:

69 US Senate, Proposed Fourteenth Amendment, Debate Continued June 4, 1866*

The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States, the pending question being on the amendment proposed by Mr. Howard, to insert the following after section three of the proposed article of constitutional amendment: Sec. 4. The obligations of the United States, incurred in suppressing insurection, or in defense of the Union, or for payment of bounties or pensions incident thereto, shall remain inviolate.

Mr. HENDRICKS. ... The position of the President and those who support his Administration upon the great question now agitating the country is so well and accurately expressed by an eloquent friend, that I will borrow his words:

Sec. [4] 5. 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 compensation for the loss or emancipation of any slave; but all such debts, obligations and claims shall be forever held illegal and void.

“1. That no State has the legal right to sever its connection with the Federal Government. “2. Failing in such an attempt they remain in their ancient places, fixed, immovable, and shorn of none of their attributes as States. “3. The right to immediate representation in Congress as living, lawful, and legitimate members of the Government. “4. That the American Union is restored, and stands unbroken, without flaw or blemish, and with domestic tranquillity in all her borders in the presence of the nations of the earth.”

Mr. President, upon this great question of a restored Union we go to the country. The Army has done all its work, there is nothing more for it to do, and the sons of the Republic have returned to their homes. All opposition to the authority of the Government of the United States has ceased, and peace reigns throughout our borders. Shall the Union in all respects stand restored, and * Cong. Globe, 39th Cong., 1st Sess., 2938–41 (June 4, 1866).

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Mr. FESSENDEN. I did not notice that the fourth section was agreed to. Was it agreed to? Mr. HOWARD. Yes, sir. Mr. FESSENDEN. Then I shall move a reconsideration, as I propose to offer an amendment to it. Mr. HOWARD. I move to amend the amendment to the [fourth] fifth section, in line forty-­nine, by striking out the words “for compensation for” and inserting the words “on account of,” so as to prevent the repetition of the word “for.” Mr. HARRIS. I do not see that that improves it at all. I think it is quite well enough as it is. I would not change it. Mr. HOWARD. The object is merely to prevent the repetition of the word “for.” It now reads, “any claim for compensation for the loss,” &c. Mr. FESSENDEN. It will make better phraseology.

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Mr. HOWARD. I propose simply to make it read, “or any claim on account of the loss or emancipation of any slave.” It makes it more harmonious. The amendment to the amendment was agreed to. The amendment, as amended, was adopted. Mr. HOWARD. There is one other amendment that escaped my attention. In line thirty the word “that,” at the beginning of section three, should be stricken out. It is entirely superfluous. The section will then read:

70 US Senate, Proposed Fourteenth Amendment, Debate Continued, Speech of Luke Poland, Remarks of William M. Stewart June 5, 1866*

No person shall be a Senator or Representative in Congress, or elector, &c.

The PRESIDING OFFICER. The amendment will be made if there be no objection, being a verbal amendment. Mr. FESSENDEN. There is a little obscurity, or, at any rate, the expression in section four might be construed to go further than was intended, and I have rather come to the conclusion that it was best to put sections four and five in one single section; and I ask the Chair, as section four has been adopted and also the amendments to section five, if it will be at any time in order to strike out both and insert a substitute for the two sections. The PRESIDING OFFICER, (Mr. Clark.) It is in order now, in the opinion of the Chair, to strike out those sections and insert a substitute, and it will also be in order when the joint resolution is reported to the Senate. Mr. FESSENDEN. But section four has been agreed to. The PRESIDING OFFICER. It has been agreed to, but it will be in order to strike that out with something else, and insert a substitute. Mr. FESSENDEN. These amendments will come up in the Senate in their regular order, as I understand. The PRESIDING OFFICER. They will. Mr. FESSENDEN. I will omit offering my amendment, then, until the resolution is reported to the Senate. The PRESIDING OFFICER. All the amendments proposed by the Senator from Michigan have now been disposed of.

The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States, ... Mr. POLAND. Mr. President, the few observations which I propose to make are addressed to the general merits of the proposition which is before the Senate, but some of them are addressed to the very point of this pending amendment. I read in a morning paper that it was expected that I would present some important and new views upon the subject. The views that I shall present, Mr. President, may be important in the sense that almost any view that any man may present who has a vote to give on such a subject is important; but that I shall be able to say, after six months’ discussion of this subject, anything new is more than I expect. Mr. President, all the questions involved in the proposed amendments to the Constitution have been so elaborately and ably discussed on former occasions during the present session that I do not feel at liberty to attempt to argue them at length and in detail. I do not propose to do more than to state, in the shortest and plainest manner I am able, some of the reasons for my action upon the propositions submitted to us by the committee. The clause of the first proposed amendment, that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” secures nothing beyond what was intended by the original provision in the Constitution, that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” But the radical difference in the social systems of the several States, and the great extent to which the doc202

* Cong. Globe, 39th Cong., 1st Sess., 2960–65 (June 5, 1866).

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trine of State rights or State sovereignty was carried, induced mainly, as I believe, by and for the protection of the peculiar system of the South, led to a practical repudiation of the existing provision on this subject, and it was disregarded in many of the States. State legislation was allowed to override it, and as no express power was by the Constitution granted to Congress to enforce it, it became really a dead letter. The great social and political change in the southern States wrought by the amendment of the Constitution abolishing slavery and by the overthrow of the late rebellion render it eminently proper and necessary that Congress should be invested with the power to enforce this provision throughout the country and compel its observance. Now that slavery is abolished, and the whole people of the nation stand upon the basis of freedom, it seems to me that there can be no valid or reasonable objection to the residue of the first proposed amendment: 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 law.

It is the very spirit and inspiration of our system of government, the absolute foundation upon which it was established. It is essentially declared in the Declaration of Independence and in all the provisions of the Constitution. Notwithstanding this we know that State laws exist, and some of them of very recent enactment, in direct violation of these principles. Congress has already shown its desire and intention to uproot and destroy all such partial State legislation in the passage of what is called the civil rights bill. The power of Congress to do this has been doubted and denied by persons entitled to high consideration. It certainly seems desirable that no doubt should be left existing as to the power of Congress to enforce principles lying at the very foundation of all republican government if they be denied or violated by the States, and I cannot doubt but that every Senator will rejoice in aiding to remove all doubt upon this power of Congress. The second article of the proposed amendments involves many considerations, and opens a much wider field for discussion. I suppose it is the purpose of the Union Republican majority in Congress, when they shall have agreed upon articles of amendment to the Constitution to be proposed for adoption, to say to the southern States which seceded, joined the confederacy, and waged war against the national Government, that

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as preliminary to their again becoming acting members of the national Union by their Senators and Representatives in Congress they must adopt or ratify such amendments. Indeed, one of the bills reported by the committee, accompanying the proposed amendments, proposes this directly, and is a part of the committee’s plan of reconstruction. It is objected in the outset to this that the States and people who have remained loyal to the Government during the war for the suppression of the rebellion have no right to affix such or any condition whatever to their return; that, having laid down their arms and ceased active hostilities against the nation, and acknowledged their allegiance and willingness to obey the national laws, no reason exists why their representatives should not be immediately admitted to their seats in Congress and participate in the legislation for the nation; and that to refuse this is really to deny to those States their proper constitutional rights. No public or political question has ever arisen in this country that has excited more ingenious and earnest debate than the legal and political condition of the seceded States after the suppression of the rebellion by the military power of the nation. The discussion began long before the war ended, and before there was occasion for any practical application, and it has continued ever since. I do not purpose to go into this question or to attempt to prove by argument that these States did or did not lose or forfeit their corporate existence as States by their acts of secession and rebellion, or that they are now in or out of the Union. I may say, however, that I was never able to see as clearly as others could anything so illogical and absurd in the doctrine that these States actually forfeited their rights as States and lapsed into the condition of Territories belonging to the Government, requiring reorganization and readmission into the Union as much as if they had never been admitted. Their acts of secession were of course entirely void, and of themselves had no effect; but when the great majority of the people of these States abandoned and forswore all allegiance to the Union, formed themselves into a hostile confederacy, filled every official place in the State with enemies of the Union, and then used all the official machinery of the State, in common with the personal efforts of the great majority of the people, in carrying on for years a bloody war against the nation, it seems to me almost absurd to say that the nation might not, if it so elected, treat them as having forfeited all rights to be considered existing States in the Union, and treat them when subdued as so much unorganized territory.

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The difficulty now lying in the way of taking this ground and basing the reconstruction or restoration of the seceding States upon it is that the national Government has hitherto, from the beginning of the rebellion down to the present time, proceeded upon the opposite theory; that is, that the States, as such, still existed; that the corporate life of a State was not lost or destroyed by the passage of ordinances of secession or the prosecution of armed hostility by the majority of its citizens. All departments of the national Government having for so long acted upon this ground, it would be exceedingly embarrassing to unsay and undo so much that has been said and done; indeed, it could hardly be done without greatly aggravating and enhancing the difficulties with which the subject of restoration is now beset. Nothing short of absolute necessity could now justify the Government in ignoring State existence in the members of the late confederacy and reducing them to the condition of unorganized territories. Is it necessary for the protection and safety of the always loyal part of the nation to do this? May we not without this require such guarantees and conditions from the seceding States, prior to allowing them to participate in the general direction and government of the nation, as in our judgment the national safety requires? By the most formal and solemn acts of legislation these States withdrew or attempted to withdraw from the national Union; they abjured all allegiance to the national Government; they withdrew their Senators and Representatives from the national Legislature; they formed themselves into a separate and hostile confederacy, of which each of these States was a constituent member; and for four years as a separate nation of States, and by the individual action of the great majority of their people, they made most cruel and unrelenting war against the loyal part of the nation. Now, conceding that all this did not destroy the corporate existence of each or either of these States as a legal essence, it must be admitted that all actual existence of legal relation or connection between those States and the national Union was severed and destroyed. It cannot be claimed that while these States were acting as States in the confederacy and occupying the position of armed and hostile belligerents toward the United States they were at the same time entitled to claim and exercise the rights of States in the Union; to be represented in its Legislature, and participate in its Government. We succeeded by our superior physical power in overthrowing and crushing this hostile con-

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federacy, and compelled them to lay down their arms. Now, before these States can resume their former places in the Union loyal State governments must be instituted and take the place of the disloyal ones that have existed, and then the legal relation and connection between them and the General Government must be restored by some power or department of the General Government. Now, in what department of the national Government does this power rest to say when the people of the insurgent States have returned to loyalty, whether the State governments set up anew are really and truly loyal, and then to restore the broken and severed legal relations between them and the Union? Clearly, in my judgment, it must rest in and with the law-­making power of the Government, the representatives of the States and the people, the two Houses of Congress. In the progress of reconstructing or restoring these States to loyalty and their former position in the Union, the executive department of the Government has assumed to dictate terms and conditions to those States, which they complied with. The terms and conditions imposed were wise and just in themselves, and I do not take it upon me now to say they were not rightfully exacted by the Executive. But I do say that, in my judgment, there is far more ground of doubt as to the rightful power of the merely executive branch of the Government to do this than there is as to the power of Congress, the substantial law-­making power of the nation, to exact the same or other like conditions. It has been said that unless these States have really forfeited their State existence and are out of the Union, we have no more right to exact or impose conditions to their return than we have to impose similar terms upon New York or Ohio; that a State cannot commit treason or forfeit its existence by the commission of crime. But there cannot well be a State, exercising and performing its functions as such, without people; and the idea of the existence of a State in harmony, with and yielding loyalty to the Union, and the people who inhabit it at the same time armed and hostile rebels, is certainly an anomaly. Now, the people of these States are the same who have been rebels, the same with whom we have been at war for years, and from whom we have just succeeded in wresting their arms. Now, can it be possible that we are at once bound to admit these people to actively participate with us in administering the General Government; that we have no more power or right to test their loyalty or require security for it than we have of the people of a

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State which has always been loyal and true? It seems to me to be confounding all distinction between right and wrong, between innocence and crime, between loyalty and treason. It is said there is no warrant in the Constitution for such a course, and therefore we cannot do it. The truth is the framers of the Constitution never contemplated such a state of things and made no provision for it. The Constitution, to be sure, provides for the suppression of insurrections; but evidently this never contemplated an extensive rebellion so formidable as to produce for years a division of the nation and a separate de facto government. The real question is, not whether there is any express warrant in the Constitution for it, but whether there is anything in the letter or spirit of the Constitution that forbids it. In my judgment there is not. It is sanctioned by principles of substantial justice and right, and by the great law of self-­protection and defense, which is as applicable to communities and nations as to individuals. ... Mr. STEWART. Mr. President, as I shall vote for the plan agreed upon among my political friends, it is proper that I should make a brief statement of my reasons. While it is not the plan that I would have adopted, as is well known, still it is the best that I can get, and contains many excellent provisions. It repudiates the rebel debt and affirms the sacred obligation of the nation to pay the debt contracted in preservation of the Union. It does not base representation on voters, which I preferred, but it approximates it more nearly than any other plan presented, and recognizes the principle that a white man in the North is entitled to equal representation with a white man in the South. It declares that all men are entitled to life, liberty, and property, and imposes upon the Government the duty of discharging these solemn obligations, but fails to adopt the easy and direct means for the attainment of the results proposed. It refuses the aid of four million people in maintaining the Government of the people. It involves freedmen’s bureaus, civil rights bills, test oaths, and exclusion from office, all supported by military power. I would not object to these, for I recognize the obligation of full protection for all men, if there were no cheaper, easier, and better plan for the attainment of this worthy object. But the reasons why I can support this plan are, that it recognizes the obligations, which I hold sacred, and does not preclude Congress from adopting other means by a two-­thirds vote, when experience shall have demon-

strated, as it certainly will, the necessity for a change of policy. In fact it furnishes a conclusive argument in favor of universal amnesty and impartial suffrage. The longer the North strives to protect the negro and the white loyalists of the South from sure violence at the hands of rebels by military power, supported by grievous taxation, with increasing danger of a consolidated and despotic Government, the more clearly will the necessity appear of returning to first principles, and according the ballot to all men. It is not the first time that the black man’s aid has been spurned by this Government, and it will not be the first time that necessity has driven us to avail ourselves of his support. While his labor was added to the power of treason traitors were triumphant: when it was subtracted and added to the material resources of the Government the Union forces were victorious. While his political power is ignored or added to disloyalty free government in the South is impossible. When it is withdrawn from rebels and added to the loyal forces the Union and republican institutions will be safe. The utter impossibility of a final solution of the difficulties by the means proposed will cause the North to clamor for suffrage. Test oaths, exclusion from office, and military rule will make the South anxious for amnesty, now so lightly considered, and willing to take suffrage to avoid certain and greater evils. While the way is left open, as it is in these resolutions, for both mercy and justice, the logic of events will work out the great problem, and satisfy all who are not now satisfied that the march of this country must either be toward consolidated, arbitrary power, supported by enormous taxation, or toward amnesty and suffrage, union and liberty. If the arguments presented by this plan do not convince at once time will do the work. I will further remark that it is a better plan than I expected could be agreed upon, and I hope much good from it. It may lead to a final settlement, and with that view I shall give it my support.

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nity of civil and political rights with the white race, for which its authors are struggling and mean to continue to struggle. Except for the negro there is no occasion for it, as all persons of every other race born in the United States, and subject to their jurisdiction, by the operation and effect of the Constitution are citizens. This principle has never been controverted. The next provision of this section, “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” is unnecessary, because that matter is provided for in article four, section two, of the Constitution: “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” This provision comprehends the same principle in better and broader language. The next branch, “nor shall any State deprive any person of life, liberty, or property without due process of law,” is objectionable, because in relation to her own citizens it belongs to each State exclusively, as being of her own reserved sovereignty and rights, to regulate that matter. It is also unnecessary, because every State constitution contains such a provision, and the rights which it is intended to secure are regarded by all as a most important portion of American liberty, and there is no danger of the removal of the defenses which the States have thrown around them. To the remaining branch, which is, “nor deny to any person within its jurisdiction the equal protection of the laws,” each of these objections apply with equal and conclusive force.

71 US Senate, Proposed Fourteenth Amendment, Speech of Garrett Davis June 7, 1866*

The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States, ... Mr. DAVIS addressed the Senate for nearly four hours. [His speech will be found in the Appendix.] Mr. DAVIS.† ... The first objection I make to the measure is that each of the five sections relates to a different subject, and yet all are submitted as a single proposition. The people might wish to vote for some of them and against others; and they should be presented in such form as to give an opportunity to vote separately on each. But for some object that right has been withheld, and they required to vote for all or against all of them together. ... But the Senate has amended the first section of the proposed amendment, and it now reads: All persons born in the United States and subject to the jurisdiction are citizens of the United States and of the States 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.

72 US Senate, Proposed Fourteenth Amendment, Debate, Passage of Amended Version June 8, 1866‡

The real and only object of the first provision of this section, which the Senate has added to it, is to make negroes citizens, to prop the civil rights bill, and give them a more plausible, if not a valid, claim to its provisions, and to press them forward to a full commu* Cong. Globe, 39th Cong., 1st Sess., 3010–11 (June 7, 1866). † Cong. Globe, 39th Cong., 1st Sess., Appendix, 240 (June 7, 1866).

The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States,

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‡ Cong. Globe, 39th Cong., 1st Sess., 3026, 3031–42 (June 8, 1866).

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... Mr. HENDERSON. ... Let all have a voice in making the law and the popular heart will execute it, because the liberty of all consists in its enforcement. It is only where political power is in the hands of a favored few that oppression can be practiced. It is only where oppression exists that the agents of a superior power are needed for protection. Give the negro the ballot and he will take care of himself, because his interest requires it. Give him a bureau agent, and he will sometimes be plundered, because his interest and the interest of the agent may differ. At an earlier day in the session I offered a proposition which I thought would secure these ends. It was a constitutional amendment in three lines. It prohibited the States, in prescribing the qualifications of voters, from discriminating against the negro on account of his color. Had this been adopted, by its own force it made him a citizen in each State, because it gave him the highest prerogative of a freeman. There would then have been no necessity for declaring who are citizens of the United States, for every freeman would have worn the honored badge of citizenship. It would then have been useless to declare that no State shall abridge the privileges and immunities of citizens of the United States, for those simple words presented an effectual bar against it. It would have been superfluous to interdict the States from taking life, liberty, or property from the citizen without due process of law; for liberty being first given, the citizen can protect his own life and property. The provision securing equal protection of the laws against inimical State legislation might then be dispensed with as wholly unnecessary. The very section we are now considering, with all its difficulties of verbal adjustment, might be abandoned and the Constitution be left in that respect as our fathers made it. The necessity for abridging representation would have ceased, for both representative and elector would have been loyal. These few words would have accomplished directly what this proposes to accomplish indirectly after years of political strife, in which truth and conscience and patriotism are too often sacrificed to the attainment of success. Had that been done it were useless to enact an exclusion from office of the leaders of the rebellion. Where all men are interested in the Government, none but peaceful revolutions are needed. Reforms are worked at the ballot-­box. Government then, and only then, becomes a divine institution. Rebellion against it not only injures

the public weal, but it shocks the moral sense of a contented and happy people. They who lead such rebellions are at once visited with public odium. In public estimation traitors then stand as the greatest of criminals. They are looked upon as monsters in human shape. Cain bore the mark of one crime—murder; but a people perfectly free will never fail to stamp traitors, as they deserve to be stamped, with the mark of all crimes. If that proposition had been adopted we need not pledge our faith to the payment of the public debt. That faith would have been best secured in the honest convictions and the moral sense of the people. Had it been adopted, we need not have proclaimed by constitutional enactment the invalidity of the rebel debt, founded as it is upon contracts made in contravention of public policy, against the best interests of the State, in violation of the laws of the land, and for the purpose of enslaving the very men whose substance would be required to pay it. But, Mr. President, in all this I may have been mistaken. The presumption is, I was mistaken, for a large majority have ruled against me. I yet have faith in its ultimate success. Necessity, if nothing else, will soon bring believers. Believers may be now few, but as through the faith of the Hebrew mother, so again they will soon be “many as the stars of the sky in multitude, and as the sand which is by the sea-­shore innumerable.” ... Mr. FESSENDEN. I ask leave to make a report.* I have here an extended report from the committee of fifteen, so called, the committee on reconstruction, giving their views and reasons with reference to the joint resolution which they submitted to the Senate and the conclusions to which they arrived. It was my hope that some time in the course of this debate, before the vote was taken, I might have the opportunity to lay the whole report before the Senate and have it read, but it is now so late an hour, and as gentlemen are desirous of taking the vote, and it has been agreed to take it to-­day, that I do not feel that it would be right to attempt to have it read in detail. I therefore move that it be laid upon the table and printed. The motion was agreed to. Mr. JOHNSON. It was understood in committee that if there should be any member who did not agree with the majority of the committee he would be at liberty to

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* [See “Majority and Minority Reports of the Joint Committee,” this section, doc. 73. —Ed.]

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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. Article —. The obligations of the United States, incurred in suppressing insurrection, or in defense or the Union, or for payment of bounties or pensions incident thereto, shall remain inviolate. Article —. 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 on account of the loss or emancipation of any slave; but all such debts, obligations, and claims, shall be forever held illegal and void. Article —. The Congress shall have power to enforce, by appropriate legislation, the provisions of these articles.

make a counter or minority report, and I merely rise for the purpose of saying that as such is the condition in which I stand, and in which two or three other members of the committee stand, I shall avail myself of that privilege at as early a day as possible. ... Mr. DOOLITTLE. I now offer the amendment which I gave notice of, the effect of which is to submit these several sections as so many separate articles, any one of which may be adopted or rejected by the States. I move to strike out all after the enacting clause of the resolution and to insert the following: That the following articles be proposed to the Legislatures of the several States as amendments to the Constitution of the United States, which, or either of which, when ratified by three fourths of said Legislatures, shall be valid as part of the Constitution, namely: Article —. All persons born 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. Article —. Representatives shall be apportioned among the several States which may be included within the 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 inhabitants, being citizens of the United States, not less than twenty-­one years of age, or in any way abridged, except for participation in rebellion 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 twenty one years of age in such State. Article —. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State,

I shall not make any speech on this subject. I simply state the fact that this is in accordance with the precedents. The first amendments to the Constitution submitted to the States were twelve in number, and they were submitted as separate articles. Ten of them were adopted; two of them were rejected by the States. All the other amendments that have ever been submitted have been submitted as separate articles. Mr. JOHNSON. And the language was the same, “or either of them.” Mr. DOOLITTLE. I have not the acts before me, but that is so. The reason is obvious. In all legislation a single member has the right to demand a vote on every single proposition; and as these distinct propositions are to be submitted to the Legislatures of the several States, they ought to be submitted in such a way that they may ratify or reject either of the propositions. Now, they are entirely distinct from each other; the first defining citizenship; the second on the subject of representation; the third in relation to disfranchisement; and, as amended, the fourth and fifth sections are combined in one, having reference to the public debt and the rebel debt. They are all distinct, independent propositions. They ought not to be submitted in such a way that they must all 208

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Mr. JOHNSON. I understand not. Mr. CLARK. We have concurred in the amendments made as in Committee of the Whole to the first section. Mr. JOHNSON. That is all. You have not agreed to the words to which I now object. I move, therefore, to amend the section as it now stands by striking out the words “make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State;” so as to make it read:

be accepted or all rejected by the States, but the States should be permitted to act upon each of them separately. I will not take up the time of the Senate in discussion, because I know the desire is to vote. Mr. TRUMBULL. The amendment submitted a year ago was in two sections; so that this is not without precedent. Mr. DOOLITTLE. The last section was simply to enforce the first. Mr. JOHNSON. They were not disconnected at all. Mr. TRUMBULL. I merely mention this to correct the statement of the Senator. Mr. DOOLITTLE. It was substantially the same, and gave no other power but to enforce the first; that is all. The PRESIDING OFFICER. The question is on the amendment of the Senator from Wisconsin. Mr. JOHNSON. On that question I ask for the yeas and nays. The yeas and nays were ordered; and being taken, resulted—yeas 11, nays 33; as follows: YEAS—Messrs. Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, McDougall, Norton, Riddle, Saulsbury, and Van Winkle—11. NAYS—Messrs. Anthony, Chandler, Clark, Conness, Cragin, Creswell, Edmunds, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague, Stewart, Sumner, Trumbull, Wade, Willey, Williams, Wilson, and Yates—33. ABSENT—Messrs. Brown, Buckalew, Dixon, Nesmith, and Wright—5. So the amendment was rejected. ... The PRESIDING OFFICER. The question is on concurring in the amendments made as in Committee of the Whole to the first section of the proposed article. The amendments were concurred in. Mr. JOHNSON. I am decidedly in favor of the first part of the section which defines what citizenship shall be, and in favor of that part of the section which denies to a State the right to deprive any person of life, liberty, or property without due process of law, but I think it is quite objectionable to provide that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” simply because I do not understand what will be the effect of that. Mr. FESSENDEN. We have agreed to that.

No State shall 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.

Mr. CONNESS. Have all the amendments made as in Committee of the Whole been voted upon? The PRESIDING OFFICER. They have not been. Mr. CONNESS. Are they not first in order? Mr. CLARK. Oh, we may as well vote on this amendment now as it is moved; it saves time. The amendment was rejected. The PRESIDING OFFICER. The next amendment made as in Committee of the Whole was to strike out the second section and insert a substitute for it, which will be read. Mr. HENDRICKS. The will of the Senate in regard to these amendments has been so emphatically expressed that I think we may as well take the vote on all of them without reading them. We all know what they are. Mr. FESSENDEN. The Senator from Michigan called for a separate vote. Mr. HOWARD. Only upon this amendment. Mr. HENDRICKS. Then upon the others let us have one vote and be done with them. Mr. TRUMBULL. The question now is on striking out the second section and inserting another. Let us have the yeas and nays on that. The yeas and nays were ordered. Mr. GRIMES. Is the question on concurring in the amendment or striking it out? The PRESIDING OFFICER. On concurring in the amendment. Mr. TRUMBULL. The question is on striking out the second section and inserting that amendment instead of it. Mr. FESSENDEN. We made the amendment in committee. Now the question is on concurring in it. Mr. TRUMBULL. Very well, but concurring in that 209

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strikes out the second section and puts in another section in place of it. Those who are in favor of striking out the second section as it was printed and inserting what was offered by the Senator from Oregon [Mr. Williams] will say “ay,” and those who are in favor of adhering to the section as it is printed will say “no.” The question being taken by yeas and nays, resulted—yeas 31, nays 11; as follows: YEAS—Messrs. Anthony, Clark, Conness, Cowan, Cragin, Creswell, Doolittle, Edmunds, Fessenden, Foster, Grimes, Harris, Henderson, Howe, Johnson, Lane of Kansas, McDougall, Morgan, Morrill, Norton, Nye, Poland, Pomeroy, Ramsey, Sherman, Stewart, Sumner, Van Winkle, Willey, Williams, and Wilson—31. NAYS—Messrs. Chandler, Guthrie, Hendricks, Howard, Kirkwood, Lane of Indiana, Saulsbury, Sprague, Trumbull, Wade, and Yates—11. ABSENT—Messrs. Brown, Buckalew, Davis, Dixon, Nesmith, Riddle, and Wright—7. So the amendment to the second section was concurred in. Several Senators. Now let us vote on all the other amendments together. The PRESIDING OFFICER. If such be the pleasure of the Senate, the question will be taken collectively on all the other amendments. Mr. JOHNSON. I hope not. I want a separate vote on the third section. The PRESIDING OFFICER. That is the next section. Mr. HENDRICKS. I do not understand this. Can this resolution be adopted by voting on sections separately? Mr. FESSENDEN. No. The PRESIDING OFFICER. The Senate is now concurring in amendments made as in Committee of the Whole. Mr. SHERMAN. No amendment was made to the third section. Mr. HENDRICKS. That is what I want to understand. I understand that there is no amendment from the Committee of the Whole to the third section. Mr. FESSENDEN. Yes, we struck out the third section as reported and inserted a substitute for it. The PRESIDING OFFICER. The question is on the amendment made as in Committee of the Whole to the third section. Mr. JOHNSON. I ask for the yeas and nays on that. The yeas and nays were ordered. Mr. SHERMAN. The third section was the original section that came from the House disfranchising the

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southern people from voting. That has been stricken out. Mr. HOWARD. The question is on concurring in the amendment we made to the third section. Mr. SHERMAN. That was to strike out the third section which came from the House and insert another. The question was taken by yeas and nays, with the following result: YEAS—Messrs. Anthony, Chandler, Clark, Conness, Cowan, Cragin, Creswell, Davis, Doolittle, Edmunds, Fessenden, Foster, Grimes, Guthrie, Harris, Henderson, Hendricks, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, McDougall, Morgan, Morrill, Norton, Nye, Poland, Pomeroy, Ramsey, Saulsbury, Sherman, Sprague, Stewart, Sumner, Trumbull, Van Winkle, Wade, Willey, Williams, Wilson, and Yates—42. NAY—Mr. Johnson—1. ABSENT—Messrs. Brown, Buckalew, Dixon, Nesmith, Riddle, and Wright—6. Mr. HENDRICKS, (before the result was announced.) I think the vote just taken is not correctly understood. The PRESIDING OFFICER. No discussion is in order; the vote has not been announced. Mr. HENDRICKS. I am not going into any discussion, but I have a right to ask of the Chair the precise question in time to let any gentleman change his vote if he desires to do so. The motion was not originally to strike out the third section as it came from the House and to insert another. They were separate motions. Then ought there not to be two votes upon this section now? Mr. SHERMAN. I suppose any Senator can call for a division. Mr. HENDRICKS. There is no need to call for a division because there were two distinct motions. There was first a motion to strike out and afterward a motion to insert something else. Now, the precise question before the Senate is whether the third section as it came from the House shall be stricken out, and then there will be another question not yet voted upon by the Senate, whether we shall insert the third section which was agreed to as in Committee of the Whole. That is the way it stands. Several Senators. Oh, no. Mr. JOHNSON. Mr. President— Mr. CONNESS. I object to discussion at this time. The PRESIDING OFFICER. The discussion is not in order; the vote has not been announced. Mr. JOHNSON. I am not about to discuss the ques-

A. Drafting, doc. 72

tion. The Senator from California need not suppose that I propose to occupy the time of the Senate unnecessarily. I proposed to strike out the original third section as it came from the House. Mr. CONNESS. I rise to a question of order. It is not in order to discuss a question after the call of the roll has been commenced. The PRESIDING OFFICER. The result of the vote has not been announced, but the roll has been called. Mr. JOHNSON. If I am not in order I will take my seat; but it is barely possible that the Senator from California may not be in order. Mr. CONNESS. I am quite aware of that; but I believe I have a right to raise the question of order. Mr. JOHNSON. I do not object to that. Mr. CONNESS. Very well; then let the Chair decide. The PRESIDING OFFICER. No discussion is in order until after the vote is announced; but, by common consent, Senators may be allowed to explain their own votes, but no extended remarks can be allowed. Mr. CONNESS. There is no right to explain a vote. Mr. JOHNSON. I moved to strike out the third section as it came from the other House. That motion was carried, and afterward what now appears upon the face of the resolution as the third section was proposed and adopted as a separate amendment. I voted just this moment to strike out what was adopted. The effect of that would have been to restore the original third section, perhaps, but I meant when that was done to move to strike out the third section so as to leave no such s­ ection. The PRESIDING OFFICER. On this question— Mr. HENDRICKS. What question? The PRESIDING OFFICER. The question was on concurring in the amendment made as in Committee of the Whole, which was to strike out the third section and insert other words in lieu of it. The result of that vote is 42 in the affirmative and 1 in the negative. So the amendment is concurred in. The Secretary will read the next amendment. The Secretary read the next amendment, which was to strike out the fourth and fifth sections, and to insert the following section in lieu of them: Sec. —. The validity of the public debt of the United States, authorized by law, including debts incurred for payment 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, obligations, and claims shall be held illegal and void.

The amendment was concurred in. The amendments were ordered to be engrossed and the joint resolution to be read a third time. The joint resolution was read the third time. The PRESIDING OFFICER. This joint resolution having been read three times, the question is on its passage. Mr. JOHNSON. I ask for the yeas and nays. Several Senators. The yeas and nays must be taken, of course. The yeas and nays were ordered; and being taken, resulted—yeas 33, nays 11; as follows: YEAS—Messrs. Anthony, Chandler, Clark, Conness, Cragin, Creswell, Edmunds, Fessenden, Foster, Grimes, Harris. Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague, Stewart, Sumner, Trumbull, Wade, Willey, Williams, Wilson, and Yates—33. NAYS—Messrs. Cowan, Davis, Doolittle, Guthrie, Hen­dricks, Johnson, McDougall, Norton, Riddle, Saulsbury, and Van Winkle—11. ABSENT—Messrs. Brown, Buckalew, Dixon, Nesmith, and Wright—5. The PRESIDING OFFICER. The joint resolution is passed, having received the votes of two thirds of the Senate.

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73 Majority and Minority Reports of the Joint Committee June 8, 1866*

Mr. Fessenden submitted the following

REPORT.† The Joint Committee of the two Houses of Congress appointed under the concurrent resolution of December 13, 1865, with direction “to inquire into the condition of the States which formed the so-­called Confederate States of America, and report whether they or any of them are entitled to be represented in either House of Congress, with leave to report by bill or otherwise,” ask leave to report: That they have attended to the duty assigned them as assiduously as other duties would permit, and now submit to Congress, as the result of their deliberations, a resolution proposing amendments to the Constitution, and two bills, of which they recommend the adoption. ... The resolution under which your committee was appointed directed them to inquire into the condition of the Confederate States, and report whether they were entitled to representation in Congress. It is obvious that such an investigation, covering so large an extent of territory and involving so many important considerations, must necessarily require no trifling labor, and consume a very considerable amount of time. It must embrace the condition in which those States were left at the close of the war; the measures which have been taken towards the reorganization of civil government, and the

* [The report was submitted to Congress on June 8, 1866, just before the Senate vote on the Fourteenth Amendment. See Cong. Globe, 39th Cong., 1st Sess., 3038 (1866). Although not read on the floor, Congress had the report printed, and it was widely disseminated in newspapers. On June 9, 1866, for example, the New York Tribune and the Boston Daily Advertiser printed the majority report in full. See New York Tribune, June 9, 1866, 1; Boston Daily Advertiser, June 9, 1866, 1. Newspapers also printed the minority report when it became available. See, for example, “Report of Minority Committee,” Philadelphia Inquirer, June 20, 1866, 1. —Ed.] † Cong. Globe, 39th Cong., 1st Sess., S. Report No. 112 (June 8, 1866).

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disposition of the people towards the United States; in a word, their fitness to take an active part in the administration of national affairs. As to their condition at the close of the rebellion, the evidence is open to all and admits of no dispute. They were in a state of utter exhaustion. Having protracted their struggle against federal authority until all hope of successful resistance had ceased, and laid down their arms only because there was no longer any power to use them, the people of those States were left bankrupt in their public finances, and shorn of the private wealth which had before given them power and influence. They were also necessarily in a state of complete anarchy, without governments and without the power to frame governments except by the permission of those who had been successful in the war. The President of the United States, in the proclamation under which he appointed provisional governors, and his various communications to them, has, in exact terms, recognized the fact that the people of those States were, when the rebellion was crushed, “deprived of all civil government,” and must proceed to organize anew. ... By withdrawing their representatives in Congress, by renouncing the privilege of representation, by organizing a separate government, and by levying war against the United States, they destroyed their State constitutions in respect to the vital principle which connected their respective States with the Union and secured their federal relations; and nothing of those constitutions was left of which the United States were bound to take notice. For four years they had a de facto government, but it was usurped and illegal. They chose the tribunal of arms wherein to decide whether or not it should be legalized, and they were defeated. At the close of the rebellion, therefore, the people of the rebellious States were found, as the President expresses it, “deprived of all civil government.” ... When Congress assembled in December last the people of most of the States lately in rebellion had, under the advice of the President, organized local governments, and some of them had acceded to the terms proposed by him. In his annual message he stated, in general terms, what had been done, but he did not see fit to communicate the details for the information of Congress. While in this and in a subsequent message the President urged the speedy restoration of the States, and expressed the opinion that their condition was such

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as to justify their restoration, yet it is quite obvious that Congress must either have acted blindly on that opinion of the President, or proceeded to obtain the information requisite for intelligent action on the subject. The impropriety of proceeding wholly on the judgment of any one man, however exalted his station, in a matter involving the welfare of the Republic in all future time, or of adopting any plan, coming from any source, without fully understanding all its bearings and comprehending its full effect, was apparent. The first step, therefore, was to obtain the required information. ... To obtain the necessary information recourse could only be had to the examination of witnesses whose position had given them the best means of forming an accurate judgment, who could state facts from their own observation, and whose character and standing afforded the best evidence of their truthfulness and impartiality. A work like this, covering so large an extent of territory, and embracing such complicated and extensive inquiries, necessarily required much time and labor. To shorten the time as much as possible, the work was divided and placed in the hands of four sub-­committees, who have been diligently employed in its accomplishment. The results of their labors have been heretofore submitted, and the country will judge how far they sustain the President’s views, and how far they justify the conclusions to which your committee have finally arrived. A claim for the immediate admission of senators and representatives from the so-­called Confederate States has been urged, which seems to your committee not to be founded either in reason or in law, and which cannot be passed without comment. Stated in a few words, it amounts to this: That inasmuch as the lately insurgent States had no legal right to separate themselves from the Union, they still retain their positions as States, and consequently the people thereof have a right to immediate representation in Congress without the imposition of any conditions whatever; and further, that until such admission Congress has no right to tax them for the support of the Government. It has even been contended that until such admission all legislation affecting their interests is, if not unconstitutional, at least unjustifiable and oppressive. It is believed by your committee that all these propositions are not only wholly untenable, but, if admitted, went tend to the destruction of the Government. It must not be forgotten that the people of these

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States, without justification or excuse, rose in insurrection against the United States. They deliberately abolished their State governments so far as the same connected them politically with the Union as members thereof under the Constitution. They deliberately renounced their allegiance to the Federal Government, and proceeded to establish an independent government for themselves. In the prosecution of this enterprise they seized the national forts, arsenals, dockyards, and other public property within their borders, drove out from among them those who remained true to the Union, and heaped every imaginable insult and injury upon the United States and its citizens. Finally, they opened hostilities, and levied war against the Government. They continued this war for four years with the most determined and malignant spirit, killing in battle, and otherwise, large numbers of loyal people, destroying the property of loyal citizens on the sea and on the land, and entailing on the Government an enormous debt, incurred to sustain its rightful authority. Whether legally and constitutionally or not, they did, in fact, withdraw from the Union and made themselves subjects of another government of their own creation. And they only yielded when, after a long, bloody, and wasting war, they were compelled by utter exhaustion to lay down their arms; and this they did not willingly, but declaring that they yielded because they could no longer resist, affording no evidence whatever of repentance for their crime, and expressing no regret, except that they had no longer the power to continue the desperate struggle. It cannot, we think, be denied by any one, having a tolerable acquaintance with public law, that the war thus waged was a civil war of the greatest magnitude. The people waging it were necessarily subject to all the rules which, by the law of nations, control a contest of that character, and to all the legitimate consequences following it. One of those consequences was that, within the limits prescribed by humanity, the conquered rebels were at the mercy of the conquerors. That a government thus outraged had a most perfect right to exact indemnity for the injuries done and security against the recurrence of such outrages in the future, would seem too clear for dispute. What the nature of that security should be, what proof should be required of a return to allegiance, what time should elapse before a people thus demoralized should be restored in full to the enjoyment of political rights and privileges, are questions for the law-­making power to decide, and that decision must

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depend on grave considerations of the public safety and the general welfare. It is moreover contended, and with apparent gravity, that, from the peculiar nature and character of our Government, no such right on the part of the conqueror can exist; that from the moment when rebellion lays down its arms and actual hostilities cease, all political rights of rebellious communities are at once restored; that, because the people of a State of the Union were once an organized community within the Union, they necessarily so remain, and their right to be represented in Congress at any and all times, and to participate in the government of the country under all circumstances, admits of neither question nor dispute. If this is indeed true, then is the Government of the United States powerless for its own protection, and flagrant rebellion, carried to the extreme of civil war, is a pastime which any State may play at, not only certain that it can lose nothing in any event, but may even be the gainer by defeat. If rebellion succeeds, it accomplishes its true purpose and destroys the Government. If it fails, the war has been barren of results, and the battle may still be fought out in the legislative halls of the country. Treason, defeated in the field, has only to take possession of Congress and the cabinet. Your committee does not deem it either necessary or proper to discuss the question whether the late Confederate States are still States of this Union, or can ever be otherwise. Granting this profitless abstraction about which so many words have been wasted, it by no means follows that the people of those States may not place themselves in a condition to abrogate the powers and privileges incident to a State of the Union, and deprive themselves of all pretense of right to exercise those powers and enjoy those privileges. A State within the Union has obligations to discharge as a member of the Union. It must submit to federal laws and uphold federal authority. It must have a government republican in form, under and by which it is connected with the General Government, and through which it can discharge its obligations. It is more than idle, it is a mockery, to contend that a people who have thrown off their allegiance, destroyed the local government which bound their States to the Union as members thereof, defied its authority, refused to execute its laws, and abrogated every provision which gave them political rights within the Union, still retain, through all, the perfect and entire right to resume, at their own will and pleasure, all their privileges within the Union, and especially to partici-

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pate in its government, and to control the conduct of its affairs. To admit such a principle for one moment would be to declare that treason is always master and loyalty a blunder. Such a principle is void by its very nature and essence, because inconsistent with the theory of government, and fatal to its very existence. On the contrary, we assert that no portion of the people of this country whether in State or Territory, have the right, while remaining on its soil, to withdraw from or reject the authority of the United States. They must obey its laws as paramount, and acknowledge its jurisdiction. They have no right to secede; and while they can destroy their State governments, and place themselves beyond the pale of the Union, so far as the exercise of State privileges is concerned, they cannot escape the obligations imposed upon them by the Constitution and the laws, nor impair the exercise of national authority. The Constitution, it will be observed, does not act upon States, as such, but upon the people; while, therefore, the people cannot escape its authority, the States may, through the act of their people, cease to exist in an organized form, and thus dissolve their political relations with the United States. ... Equally absurd is the pretense that the legislative authority of the nation must be inoperative so far as they are concerned, while they, by their own act, have lost the right to take part in it. Such a proposition carries its own refutation on its face. ... Your committee came to the consideration of the subject referred to them with the most anxious desire to ascertain what was the condition of the people of the States recently in insurrection, and what, if anything, was necessary to be done before restoring them to the full enjoyment of all their original privileges. It was undeniable that the war into which they had plunged the country had materially changed their relations to the people of the loyal States. Slavery had been abolished by constitutional amendment. A large proportion of the population had become, instead of mere chattels, free men and citizens. Through all the past struggle these had remained true and loyal, and had, in large numbers, fought on the side of the Union. It was impossible to abandon them, without securing them their rights as free men and citizens. The whole civilized world would have cried out against such base ingratitude, and the bare idea is offensive to all right-­thinking men. Hence it became important to inquire what could be done to

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secure their rights, civil and political. It was evident to your committee that adequate security could only be found in appropriate constitutional provisions. By an original provision of the Constitution, representation is based on the whole number of free persons in each State, and three-­fifths of all other persons. When all become free, representation for all necessarily follows. As a consequence the inevitable effect of the rebellion would be to increase the political power of the insurrectionary States, whenever they should be allowed to resume their positions as States of the Union. As representation is by the Constitution based upon population, your committee did not think it advisable to recommend a change of that basis. The increase of representation necessarily resulting from the abolition of slavery was considered the most important element in the questions arising out of the changed condition of affairs, and the necessity for some fundamental action in this regard seemed imperative. It appeared to your committee that the rights of these persons by whom the basis of representation had been thus increased should be recognized by the General Government. While slaves they were not considered as having any rights, civil or political. It did not seem just or proper that all the political advantages derived from their becoming free should be confined to their former masters, who had fought against the Union, and withheld from themselves, who had always been loyal. Slavery, by building up a ruling and dominant class, has produced a spirit of oligarchy adverse to republican institutions, which finally inaugurated civil war. The tendency of continuing the domination of such a class, by leaving it in the exclusive possession of political power, would be to encourage the same spirit, and lead to a similar result. Doubts were entertained whether Congress had power, even under the amended Constitution, to prescribe the qualifications of voters in a State, or could act directly on the subject. It was doubtful, in the opinion of your committee, whether the States would consent to surrender a power they have always exercised, and to which they were attached. As the best if not the only method of surmounting the difficulty, and as eminently just and proper in itself, your committee came to the conclusion that political power should be possessed in all the States exactly in proportion as the right of suffrage should be granted, without distinction of color or race. This it was thought would leave the whole question with the people of each State, holding out to all the advantage of increased political power as

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an inducement to allow all to participate in its exercise. Such a provision would be in its nature gentle and persuasive, without distinction, in all the rights and privileges of citizenship, thus supporting a full and adequate protection to all classes of citizens, since all would have, through the ballot-­box, the power of self-­protection. Holding these views, your committee prepared an amendment to the Constitution to carry out this idea, and submitted the same to Congress. Unfortunately, as we think, it did not receive the necessary constitutional support in the Senate, and therefore could not be proposed for adoption by the States. The principle involved in that amendment is, however, believed to be sound, and your committee have again proposed it in another form, hoping that it may receive the approbation of Congress. ... The testimony is conclusive that after the collapse of the Confederacy the feeling of the people of the rebellious States was that of abject submission. Having appealed to the tribunal of arms, they had no hope except that by the magnanimity of their conquerors their lives, and possibly their property, might be preserved. Unfortunately, the general issue of pardons to persons who had been prominent in the rebellion, and the feeling of kindliness and conciliation manifested by the Executive, and very generally indicated through the northern press, had the effect to render whole communities forgetful of the crime they had committed, defiant towards the Federal Government, and regardless of their duties as citizens. The conciliatory measures of the Government do not seem to have been met even halfway. ... If we add to this evidence the fact that, although peace has been declared by the President, he has not, to this day, deemed it safe to restore the writ of habeas corpus, to relieve the insurrectionary States of martial law, nor to withdraw the troops from many localities, and that the commanding general deems an increase of the army indispensable to the preservation of order and the protection of loyal and well disposed people in the south, the proof of a condition of feeling hostile to the Union and dangerous to the Government throughout the insurrectionary States would seem to be overwhelming. With such evidence before them, it is the opinion of your committee— I. That the States lately in rebellion were, at the close of the war, disorganized communities, without civil

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government, and without constitutions or other forms, by virtue of which political relations could legally exist between them and the Federal Government. II. That Congress cannot be expected to recognize as valid the election of representatives from disorganized communities, which, from the very nature of the case, were unable to present their claim to representation under those established and recognized rules, the observance of which has been hitherto required. III. 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; a just equality of representation; protection against claims founded in rebellion and crime; a temporary restoration of the right of suffrage to those who have not actively participated in the efforts to destroy the Union and overthrow the Government, and the exclusion from positions of public trust, at least, a portion of those whose crimes have proved them to be enemies to the Union, and unworthy of public confidence. ... 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 committees submit it to Congress as the best they could agree upon, in the hope that its imperfections may be cured, and its deficiencies 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. W. P. Fessenden. James W. Grimes. Ira Harris. J. M. Howard. George H. Williams. Thaddeus Stevens. Elihu B. Washburne. Justin S. Morrill. Jno. A. Bingham. Roscoe Conkling. George S. Boutwell. Henry T. Blow.

Mr. Rogers, from the Select Committee on Reconstruction, submitted the following as the

VIEWS OF THE MINORITY.* The undersigned, a minority of the joint committee of the Senate and House of Representatives, constituted under the concurrent resolution of the 13th of December, 1865, making it their duty to “inquire into the condition of the states which formed the so-­called Confederate States of America, and to report whether they or any of them are entitled to be represented in either house of Congress, would leave to report by bill or otherwise,” not being able to concur in the measures recommended by the majority, or in the grounds upon which they base them, beg leave to report: In order to obtain a correct apprehension of the subject, and as having a direct bearing upon it, the undersigned think it all important clearly to ascertain what was the effect of the late insurrection upon the relations of the States where it prevailed, to the General Government, and of the people collectively and individually of such States. To this inquiry they therefore first address themselves. First, as to the States. Did the insurrection at its commencement, or at any subsequent time, legally dissolve the connection between those States and the General Government? In our judgment, so far from this being a “profitless abstraction,” it is a vital inquiry. For if that connection was not disturbed, such States during the entire rebellion were as completely component States of the United States as they were before the rebellion, and were bound by all the obligations which the Constitution imposes, and entitled to all its privileges. Was not this their condition? The opposite view alone can justify the denial of such rights and privileges. That a State of the Union can exist without possessing them is inconsistent with the very nature of the Government and terms of the Constitution. ... No legal proceeding, criminal or civil, can be instituted to deprive a State of the benefits of the Constitution, by forfeiting as against her any of the rights it secures. Her citizens, be they few or many, may be proceeded against under the law and convicted, but the State remains a State of the Union. To concede that, by

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* Cong. Globe, 39th Cong., 1st Sess., H.R. Report No. 30, pt. 2 (June 20, 1866).

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the illegal conduct of her own citizens, she can be withdrawn from the Union, is virtually to concede the right of secession. . . . A State once in the Union must abide in it forever. She can never withdraw from or be expelled from it. A different principle would subject the Union to dissolution at any moment. It is, therefore, alike perilous and unsound. Nor do we see that it has any support in the measures recommended by the majority of the committee. The insurrectionary States are by these measures conceded to be States of the Union. The proposed constitutional amendment is to be submitted to them as well as to the other States. In this respect each is placed on the same ground. To consult a State not in the Union on the propriety of adopting a constitutional amendment to the government of the Union, and which is necessarily to affect those States only composing the Union, would be an absurdity; and to allow an amendment which States in the Union might desire, to be defeated by the votes of States not in the Union, would be alike and nonsensical and unjust. The very measure, therefore, of submitting to all the States forming the Union before the insurrection a constitutional amendment, makes the inquiry, whether all at this time are in or out of the Union, a vital one. If they are not, all should not be consulted; if they are, they should be, and should be only because they are. The very fact, therefore, of such a submission concedes that the Southern States are, and never ceased to be, States of the Union. ... If this is so, it necessarily follows that the rights of States under the Constitution, as originally possessed and enjoyed by them, are still theirs, and those they are now enjoying, as far as they depend upon the executive and judicial departments of the government. By each of these departments they are recognized as States. By the one, all officers of the government required by law to be appointed in such States have been appointed, and are discharging, without question, their respective functions. By the other they are, as States, enjoying the benefit, and subjected to the powers of that department; a fact conclusive to show that, in the estimation of the judiciary, they are, as they were at first, States of the Union, bound by the laws of the Union, and entitled to all the rights incident to that relation. And yet, so far they are denied that right which the Constitution properly esteems as the security of all the others—that right, without which government is anything but a republic— is indeed but a tyranny—the right of having a voice in

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the legislative department, whose laws bind them in person and in property;—this, it is submitted, is a state of things without example in a representative republican government; and Congress, as long as it denies this right, is a mere despotism. ... They are asked to disfranchise a numerous class of their citizens, and also to agree to diminish their representation in Congress, and of course in the electoral college, or to admit to the right of suffrage their colored males of twenty-­one years of age and upwards, (a class now in the condition of almost utter ignorance,) thus placing them on the same political footing with white citizens of that age. For reasons so obvious that the dullest may discover them, the right is not directly asserted of granting suffrage to the negro. That would be obnoxious to most of the Northern and Western States, so much so that their consent was not to be anticipated; but as the plan adopted, because of the limited number of negroes in such States, will have no effect on their representation, it is thought it may be adopted, while in the southern States it will materially lessen their number. That these latter States will assent to the measure can hardly be expected. The effect, then, if not the purpose, of the measure is forever to deny representatives to such States, or, if they consent to the condition, to weaken their representative power, and thus, probably, secure a continuance of such a party in power as now control the legislation of the Government. The measure, in its terms and its effect, whether designed or not, is to degrade the southern States. To consent to it will be to consent to their own dishonor. The manner, too, of presenting the proposed constitutional amendment, in the opinion of the undersigned, is impolitic and without precedent. The several amendments suggested have no connection with each other; each, if adopted, would have its appropriate effect if the others were rejected; and each, therefore, should be submitted as a separate article, without subjecting it to the contingency of rejection if the State should refuse to ratify the rest. . . . To force negro suffrage upon any State by means of a penalty of a loss of part of its representation will not only be to impose a disparaging condition, but virtually to interfere with the clear right of each State to regulate suffrage for itself, without the control of the Government of the United States. Whether that control be exerted directly or indirectly, it will be considered, as it is a fatal blow to the right which every State in the past has held vital, the right to regulate her franchise.

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... When the Constitution was adopted it was thought to be defective in not sufficiently protecting certain rights of the States and the people. With the view of supplying a remedy for this defect, on the 4th March, 1789, various amendments by a resolution constitutionally passed by Congress were submitted for ratification to the States. They were twelve in number. Several of them were even less independent of each other than are those recommended by the committee. But it did not occur to the men of that day that it was right to force the States to adopt or reject all. Each was, therefore, presented as a separate article. . . . This course of our fathers is now departed from, and the result will probably be that no one of the suggested amendments, though some may be approved, will be ratified. This will certainly be the result, unless the States are willing practically to relinquish the right they have always enjoyed, never before questioned by any recognized statesman, and all-­important to their interest and security—the right to regulate the franchise in all their elections. ... Reverdy Johnson. A. J. Rogers. Henry Grider.

74 US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens, Vote and Passage of Amended Senate Version June 13, 1866*

Mr. STEVENS. Mr. Speaker, I do not intend to detain the House long. A few words will suffice. We may, perhaps, congratulate the House and the country on the near approach to completion of a proposition to be submitted to the people for the admission of an outlawed community into the privileges and advantages of a civilized and free Government. When I say that we should rejoice at such completion, I do not thereby intend so much to express joy at * Cong. Globe, 39th Cong., 1st Sess., 3148–49 (June 13, 1866).

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the superior excellence of the scheme, as that there is to be a scheme—a scheme containing much positive good, as well, I am bound to admit, as the omission of many better things. In my youth, in my manhood, in my old age, I had fondly dreamed that when any fortunate chance should have broken up for awhile the foundation of our institutions, and released us from obligations the most tyrannical that ever man imposed in the name of freedom, that the intelligent, pure and just men of this Republic, true to their professions and their consciences, would have so remodeled all our institutions as to have freed them from every vestige of human oppression, of inequality of rights, of the recognized degradation of the poor, and the superior caste of the rich. In short, that no distinction would be tolerated in this purified Republic but what arose from merit and conduct. This bright dream has vanished “like the baseless fabric of a vision.” I find that we shall be obliged to be content with patching up the worst portions of the ancient edifice, and leaving it, in many of its parts, to be swept through by the tempests, the frosts, and the storms of despotism. Do you inquire why, holding these views and possessing some will of my own, I accept so imperfect a proposition? I answer, because I live among men and not among angels; among men as intelligent, as determined, and as independent as myself, who, not agreeing with me, do not choose to yield their opinions to mine. Mutual concession, therefore, is our only resort, or mutual hostilities. We might well have been justified in making renewed and more strenuous efforts for a better plan could we have had the cooperation of the Executive. With his cordial assistance the rebel States might have been made model republics, and this nation an empire of universal freedom. But he preferred “restoration” to “reconstruction.” He chooses that the slave States should remain as nearly as possible in their ancient condition, with such small modifications as he and his prime minister should suggest, without any impertinent interference from Congress. He anticipated the legitimate action of the national Legislature, and by rank usurpation erected governments in the conquered provinces; imposed upon them institutions in the most arbitrary and unconstitutional manner; and now maintains them as legitimate governments, and insolently demands that they shall be represented in Congress on equal terms with loyal and regular States. To repress this tyranny and at the same time to do

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some justice to conquered rebels requires caution. The great danger is that the seceders may soon overwhelm the loyal men in Congress. The haste urged upon us by some loyal but impetuous men; their anxiety to embrace the representatives of rebels; their ambition to display their dexterity in the use of the broad mantle of charity; and especially the danger arising from the unscrupulous use of patronage and from the oily orations of false prophets, famous for sixty-­day obligations and for protested political promises, admonish us to make no further delay. A few words will suffice to explain the changes made by the Senate in the proposition which we sent them. The first section is altered by defining who are citizens of the United States and of the States. This is an excellent amendment, long needed to settle conflicting decisions between the several States and the United States. It declares this great privilege to belong to every person born or naturalized in the United States. The second section has received but slight alteration. I wish it had received more. It contains much less power than I could wish; it has not half the vigor of the amendment which was lost in the Senate. It or the proposition offered by Senator Wade would have worked the enfranchisement of the colored man in half the time. The third section has been wholly changed by substituting the ineligibility of certain high offenders for the disfranchisement of all rebels until 1870. This I cannot look upon as an improvement. It opens the elective franchise to such as the States choose to admit. In my judgment it endangers the Government of the country, both State and national; and may give the next Congress and President to the reconstructed rebels. With their enlarged basis of representation, and exclusion of the loyal men of color from the ballot-­ box, I see no hope of safety unless in the prescription of proper enabling acts, which shall do justice to the freedmen and enjoin enfranchisement as a condition-­ precedent. The fourth section, which renders inviolable the public debt and repudiates the rebel debt, will secure the approbation of all but traitors. The fifth section is unaltered. You perceive that while I see much good in the proposition I do not pretend to be satisfied with it. And yet I am anxious for its speedy adoption, for I dread delay. The danger is that before any constitutional guards shall have been adopted Congress will be flooded by rebels and rebel sympathizers. Whoever has mingled much in

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deliberative bodies must have observed the mental as well as physical nervousness of many members, impelling them too often to injudicious action. Whoever has watched the feelings of this House during the tedious months of this session, listened to the impatient whispering of some and the open declarations of others; especially when able and sincere men propose to gratify personal predilections by breaking the ranks of the Union forces and presenting to the enemy a ragged front of stragglers, must be anxious to hasten the result and prevent the demoralization of our friends. Hence, I say, let us no longer delay; take what we can get now, and hope for better things in further legislation; in enabling acts or other provisions. I now, sir, ask for the question. The SPEAKER. The question before the House is on concurring in the amendments of the Senate; and as it requires by the Constitution a two-­thirds vote, the vote will be taken by yeas and nays. ... The joint resolution as amended by the Senate is as follows: Joint resolution proposing an amendment to the Constitution of the United States. Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid as part of the Constitution, namely: Article —. Sec. 1. All persons born or naturalized 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. Sec. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the

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choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and 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. Sec. 3. No person shall be a Senator or Representative in Congress, or elector of President and 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. Sec. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment 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, obligations, and claims shall be held illegal and void. Sec. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The question was put on concurring with the amendments of the Senate; and there were—yeas 120, nays 32, not voting 32; as follows: YEAS—Messrs. Alley, Allison, Ames, Delos R. Ashley, James M. Ashley, Baker, Baldwin, Banks, Barker, Baxter, Beaman, Bidwell, Bingham, Blaine, Boutwell, Bromwell, Buckland, Bundy, Reader W. Clarke, Sidney Clarke, Cobb, Conkling, Cook, Cullom, Darling, Davis, Dawes, Defrees, Delano, Dodge, Donnelly, Driggs, Dumont,

Eckley, Eggleston, Eliot, Farnsworth, Farquhar, Ferry, Garfield, Grinnell, Griswold, Hale, Abner C. Harding, Hart, Hayes, Henderson, Higby, Holmes, Hooper, Hotchkiss, Asahel W. Hubbard, Chester D. Hubbard, John H. Hubbard, James R. Hubbell, Jenckes, Julian, Kelley, Kelso, Ketcham, Kuykendall, Laflin, Latham, George V. Lawrence, Loan, Longyear, Lynch, Marvin, McClurg, McKee, McRuer, Mercur, Miller, Moorhead, Morrill, Morris, Moulton, Myers, Newell, O’Neill, Orth, Paine, Perham, Phelps, Pike, Plants, Pomeroy, Price, William H. Randall, Raymond, Alexander H. Rice, John H. Rice, Sawyer, Schenck, Scofield, Shellabarger, Sloan, Smith, Spalding, Stevens, Stilwell, Thayer, Francis Thomas, John L. Thomas, Trowbridge, Upson, Van Aernam, Robert T. Van Horn, Ward, Warner, Henry D. Washburn, William B. Washburn, Welker, Wentworth, Whaley, Williams, James F. Wilson, Stephen F. Wilson, Windom, and the Speaker—120. NAYS—Messrs. Ancona, Bergen, Boyer, Chanler, Coff­roth, Dawson, Denison, Eldridge, Finck, Glossbren­ ner, Grider, Aaron Harding, Hogan, Edwin N. Hubbell, James M. Humphrey, Kerr, Le Blond, Marshall, Niblack, Nicholson, Samuel J. Randall, Ritter, Rogers, Ross, Sitgreaves, Strouse, Taber, Taylor, Thornton, Trimble, Winfield, and Wright—32. NOT VOTING—Messrs. Anderson, Benjamin, Blow, Brandegee, Broomall, Culver, Deming, Dixon, Good­ year, Harris, Hill, Demas Hubbard, Hulburd, James Humphrey, Ingersoll, Johnson, Jones, Kasson, William Lawrence, Marston, McCullough, McIndoe, Noell, Patterson, Radford, Rollins, Rousseau, Shanklin, Starr, Burt Van Horn, Elihu B. Washburne, and Woodbridge—32. The SPEAKER. Two thirds of both Houses having concurred in the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States, the joint resolution has passed.

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75 US House, Proposed Fourteenth Amendment, Discussion Regarding Presentment to the President for Signature June 15, 1866*

Mr. BINGHAM. I ask unanimous consent to introduce the following concurrent resolution relative to the constitutional amendment: Resolved by the House of Representatives (the Senate concurring,) That the President of the United States be requested to transmit forthwith to the Executives of the several States of the United States copies of the article of amendment proposed by Congress to the State Legislatures to amend the Constitution of the United States, passed June 13, 1866, respecting citizenship, the basis of representation, disqualification for office, the validity of the public debt of the United States, &c. to the end that the said States may proceed to act upon the said article of amendment, and that he request the Executives of the States that may receive the said amendment to transmit to the Secretary of State certified copies of such ratification.

Mr. LE BLOND. Does that resolution come in by unanimous consent? The SPEAKER. The gentleman from Ohio asked unanimous consent to introduce it. Mr. LE BLOND. And unanimous consent has not been given. I will state to the gentleman that the resolution is wrong on its face. It requires the Executive to immediately send copies of the proposed constitutional amendment to the different States, before the time allowed for the Executive to approve or reject this amendment has elapsed. I am told by gentlemen here that the Executive is not required to sign this constitutional amendment. Mr. RANDALL, of Pennsylvania. I rise to a point of order. I desire to know whether there is anything properly before the House. * Cong. Globe, 39th Cong., 1st Sess., 3197–98 (June 15, 1866).

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The SPEAKER. If the gentleman from Ohio [Mr. Bingham] states that he reports this from the committee on reconstruction, of which he is a member, then it is before the House. Mr. LE BLOND. I understand that the Constitution provides that all bills and joint resolutions shall be sent to the Executive for his approval or rejection, and that no exception is made in regard to a constitutional amendment; and the practice has been to submit constitutional amendments to the Executive. Mr. BINGHAM. Will the gentleman say when? Mr. LE BLOND. Under the administration of Mr. Buchanan there was a constitutional amendment submitted to the Executive and was approved by him. And during the administration of Mr. Lincoln there was also a constitutional amendment passed and submitted to the Executive for approval. Mr. BINGHAM. I would ask the gentleman whether he is aware of the fact that the twelve constitutional amendments reported by the First Congress of the United States were never submitted to or approved by the President. Mr. LE BLOND. I am aware that in the early history of this country the record shows nothing upon the subject. That is the truth about it; it does not show that they were approved or rejected, or that they went to the Executive or did not go. But it is a fact, and the gentleman cannot escape it, that the Constitution makes no exception in the matter whatever. Now, what objection is there to changing this resolution so that it shall require, in the event that the Executive shall approve the constitutional amendment, that he shall send copies of the same to the Governors of the States? I hold that the Constitution is explicit upon the subject, and that while it requires a two-­thirds vote upon a proposed constitutional amendment, it does not become effective until it has the approval of the President. As the object of this resolution is to avoid another veto from the Executive, I shall object to its introduction at this time, and when it comes in— Mr. BINGHAM. If the gentleman objects why does he argue it? The SPEAKER. If the gentleman from Ohio [Mr. Le Blond] makes the point of order, as the Chair understands he does, that the amendment must be submitted to the President— Mr. LE BLOND. I do not raise that point. Mr. BINGHAM. What point, then, does the gentleman raise?

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Mr. LE BLOND. I intend to raise the point when it does come before the House. The SPEAKER. The Chair understands the gentleman from Ohio [Mr. Le Blond] as having raised the point of order on the specific grounds stated by him. The argument that he has made is based upon the objection, and the Chair holds that the objection, if based on those grounds, is not good. The Chair has the authority of the Supreme Court of the United States for his decision, and supposing that the question would come up he has procured the authority, and now has it before him. Mr. JOHNSON. The Supreme Court never decided a question of order in this House. The SPEAKER. The gentleman from Pennsylvania certainly does not understand the decision of the Chair or he would not have made the remark. The question was raised distinctly in 1803, in the Senate of the United States, on a motion that the then proposed amendment should be submitted to the President:

investing the President with a qualified negative on the acts and resolutions of Congress.”

The court, speaking through Chase, Justice, observes: “There can surely be no necessity to answer that argument. The negative of the President applies only to the ordinary cases of legislation. He has nothing to do with the proposition or adoption of amendments to the Constitution.”

And the court would not hear an argument from the Attorney General on the point, it was so clear. The Chair has still another authority. During the last Congress a proposition of amendment to the Constitution was submitted to the President of the United States, Mr. Lincoln. It was sent back by him with the remark that he thought he had no right to sign it officially, but inasmuch as it was presented to him he would sign it. Thereupon the following resolution was submitted to the Senate by the chairman of the Judiciary Committee of that body, [Mr. Trumbull:]

“On motion that the Committee on Enrolled Bills be directed to present to the President of the United States for his approbation the resolution which has been passed by both Houses of Congress proposing to the consideration of the State Legislatures an amendment to the Constitution of the United States respecting the mode of electing President and Vice President thereof, it was passed in the negative— yeas 7, nays 23.”

“Resolved. That the article of amendment proposed by Congress to be added to the Constitution of the United States, respecting the extinction of slavery therein, having been inadvertently presented to the President for his approval, it is hereby declared that such approval was unnecessary to give effect to the action of Congress in proposing said amendment, inconsistent with the former practice in reference to all amendments to the Constitution heretofore adopted, and being inadvertently done, should not constitute a precedent for the future: and the Secretary is hereby instructed not to communicate the notice of the approval of said proposed amendment by the President to the House of Representatives.”

On a distinct vote of 23 to 7, the Senate voted that the Committee on Enrolled Bills should not present the proposed amendment to the President of the United States for his approval, and it was not presented to or approved by him. In 1798 a case arose in the Supreme Court of the United States, depending upon the amendment to the Constitution proposed in 1794, and the counsel in argument before the court insisted that the amendment was not valid, not having been approved by the President of the United States. The Attorney General, Mr. Lee, in reply to this argument said:

Upon that resolution Senator Reverdy Johnson said: “Now, the proposition is that no proposal by Congress of an amendment to the Constitution, although receiving the support of two thirds of both Houses of Congress, is to be submitted to the States unless the President shall approve it. That is not the case in relation to the other mode of proposing amendments. There being two modes, and stated in the alternative, the other mode is: “‘Or on the application of the Legislatures of two thirds of the several States.’

“Has not the same course been pursued relative to all other amendments that have been adopted? And the case of amendments is evidently a substantive act, unconnected with the ordinary business of legislation, and not within the policy or terms of

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“What are Congress to do then? Suppose two thirds of the States propose amendments, has the President anything to do with that? All will admit that he has not. Has Congress anything to do with that? All will admit that their single duty then is an imperative duty to call a convention. So that the whole object of the clause, as it seems to me, is merely to begin a mode by which the people shall have an opportunity of deciding whether the Constitution shall be amended or not. But when, as is stated by the honorable chairman of the Judiciary Committee, every amendment which has been adopted has been submitted to the States without having been approved by the President, and when the Supreme Court, at a time when it stood as high as it has ever stood at any time since its organization, refused even to hear an argument on the subject, supposing it to be too clear for discussion, it would seem to me that we ought to consider the question as settled.”

76 US Senate, Proposed Fourteenth Amendment, President Andrew Johnson’s Message of Transmission June 22, 1866*

To the Senate and House of Representatives: I submit to Congress a report of the Secretary of State, to whom was referred the concurrent resolution of the 18th instant, respecting a submission to the Legislatures of the States of an additional article to the Constitution of the United States. It will be seen from this report that the Secretary of State had, on the 16th instant, transmitted to the Governors of the several States certified copies of the joint resolution passed on the 13th instant proposing an amendment to the Constitution. Even in ordinary times, any question of amending the Constitution must be justly regarded as of paramount importance. This importance is at the present time enhanced by the fact that the joint resolution was not submitted by the two Houses for the approval of the President, and that of the thirty-­six States which constitute the Union, eleven are excluded from representation in either House of Congress, although, with the single exception of Texas, they have been entirely restored to all their functions as States, in conformity with the organic law of the land, and have appeared at the national capital by Senators and Representatives who have applied for and have been refused admission to the vacant seats. Nor have the sovereign people of the nation been afforded an opportunity of expressing their views upon the important questions which the amendment involves. Grave doubts, therefore, may naturally and justly arise as to whether the action of Congress is in harmony with the sentiments of the people, and whether State Legislatures, elected without reference to such an issue, should be called upon by Congress to decide respecting the ratification of the proposed amendment. Waiving the question as to the constitutional validity of the proceedings of Congress upon the joint resolu-

And such was the decision of the Senate, which adopted the resolution of Mr. Trumbull, without a division or even a call of the yeas and nays. The Chair will state in response to the remark of the gentleman from Pennsylvania, [Mr. Johnson,] that this is a parliamentary point. It is a question as to whether the Committee on Enrolled Bills of this House, where the joint resolution proposing the amendment in question originated, should present the same to the President for his signature. And the Chair has decided that such a course of proceeding is not in accordance with the Constitution and the uniform usage heretofore, except in the single case of the last Congress, when the proposed amendment abolishing slavery was submitted by inadvertence to President Lincoln for his signature. Therefore an objection based specifically on that ground could not be tacitly allowed by the Chair as correct, and is not a valid objection to the consideration of this concurrent resolution at this time.

* Cong. Globe, 39th Cong., 1st Sess., 3349 (June 22, 1866).

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tion proposing the amendment, or as to the merits of the article which it submits, through the executive department, to the Legislatures of the States, I deem it proper to observe that the steps taken by the Secretary of State, as detailed in the accompanying report, are to be considered as purely ministerial, and in no sense whatever committing the Executive to an approval or a recommendation of the amendment to the State Legislatures or to the people. On the contrary, a proper appreciation of the letter and spirit of the Constitution, as well as of the interests of national order, harmony, and union,

and a due deference for an enlightened public judgment, may at this time well suggest a doubt whether any amendment to the Constitution ought to be proposed by Congress and pressed upon the Legislatures of the several States for final decision until after the admission of such loyal Senators and Representatives of the now unrepresented States as have been or as may hereafter be chosen in conformity with the Constitution and laws of the United States. ANDREW JOHNSON Washington, D.C., June 22, 1866.

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B. Ratification

Introduction to Part 1B 1. Connecticut, Debate and Ratification of the Fourteenth Amendment (June 25 and 27, 1866) 2. New Hampshire, House Committee Report (Majority and Minority), Ratification of the Fourteenth Amendment (June 26 and July 6, 1866) 3. New Hampshire, House of Representatives, Speech of E. A. Hibbard (June 26, 1866) 4. A Call for a Convention of Southern Loyalists (July 4, 1866) 5. Circular Accompanying the Call for a Convention of Southern Loyalists (July 10, 1866) 6. Congressional Campaign Speeches of Montgomery Blair and George H. Pendleton, Reading, PA (July 18, 1866) 7. Tennessee, Gov. William Brownlow’s Proclamation and Address, Ratification (July 4–19, 1866) 8. US House, Readmission of Tennessee, Speech of John Bingham (July 20 and 23, 1866) 9. Speech of Indiana Gov. Oliver P. Morton on the Fourteenth Amendment, New Albany, IN (July 27, 1866) 10. “The New Orleans Riot,” Albany Evening Journal (Aug. 1, 1866) 11. “The Rebel Massacre in New Orleans” and “The Right of Free Assemblage,” Evening Telegraph (Aug. 1, 1866) 12. Speech of Sen. Lyman Trumbull (R-­IL), Chicago, IL (Aug. 2, 1866) 13. Speech of Rep. Schuyler Colfax (R-­IN), Indianapolis, IN (Aug. 7, 1866) 14. Speech of Sen. Thomas A. Hendricks (D-­IN), Indianapolis, IN (Aug. 8, 1866) 15. Speech of Sen. Henry Lane (R-­IN), Indianapolis, IN (Aug. 18, 1866) 16. Speech of Gen. George Morgan, Coshocton, OH (Aug. 21, 1866) 17. Speech of Rep. John Bingham (R-­OH), Bowerston, OH (Aug. 24, 1866) 18. Speech of Rep. Columbus Delano (R-­OH), Coshocton, OH (Aug. 28, 1866) 19. Speech of President Andrew Johnson, New York, NY (Aug. 29, 1866) 20. “The Appeal,” Southern Loyalists Convention, Philadelphia, PA (Sept. 6, 1866)

21. Frederick Douglass, Speech at Southern Loyalists Convention, Philadelphia, PA (Sept. 6, 1866) 22. President Andrew Johnson, Remarks on the New Orleans Riot, St. Louis, MO (Sept. 8, 1866) 23. New Jersey, Legislative Debates and Ratification (Sept. 11, 1866) 24. Speech of Sen. Henry Wilson (R-­MA), Anderson, IN (Sept. 22, 1866) 25. Speech of Sen. John Sherman (R-­OH), Cincinnati, OH (Sept. 28, 1866) 26. Speech of Gen. Benjamin Butler, Candidate for House of Representatives from Massachusetts, Toledo, OH (Oct. 2, 1866) 27. “A Little More about Suffrage,” New Orleans Times (Oct. 15, 1866) 28. Speech of Wendell Phillips on the Fourteenth Amendment, Cooper Institute (Oct. 25, 1866) 29. Oregon, Legislative Debate and Ratification (Sept. 14 and 19, 1866) 30. “A Clear Issue,” Harper’s Weekly (Oct. 6, 1866) 31. Texas, House Report and Rejection of Proposed Fourteenth Amendment (Oct. 13, 1866) 32. Texas, Senate Report and Rejection of Proposed Fourteenth Amendment (Oct. 22, 1866) 33. Vermont, Gov. Paul Dillingham’s Message, Ratification (Oct. 12, 1866) 34. Letter from Secretary of the Interior O. H. Browning to W. H. Benneson and H. V. Sullivan (Oct. 13, 1866) 35. “Secretary Browning’s Letter,” Evening Post (Oct. 24, 1866) 36. US Congressional Election Returns, Evening Post (Nov. 7, 1866) 37. Frederick Douglass, “Reconstruction,” Atlantic Monthly (Nov. 1866) 38. Georgia, Legislature Rejects the Fourteenth Amendment, Richmond Whig (Nov. 13, 1866) 39. “Madison,” Essays on the Fourteenth Amendment, Nos. I, II, and V, New York Times (Nov. 10, 15, and 28, 1866) 40. Florida, Gov. David S. Walker’s Message to the Legislature (Nov. 14, 1866) 41. The Equal Rights Convention, Remarks of Susan B. Anthony, Elizabeth Cady Stanton, and Frederick Douglass, Albany, NY (Nov. 20, 1866) 42. Florida, Legislative Committee Reports and 225

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Rejection of the Fourteenth Amendment (Nov. 23, Dec. 1 and 3, 1866) 43. Virginia, Gov. Francis H. Peirpoint’s Message to the Legislature, Alexandria Gazette (Dec. 4, 1866) 44. Alabama, Gov. Robert M. Patton’s Message to the Legislature, Rejection of the Fourteenth Amendment (Dec. 6 and 7, 1866) 45. North Carolina, Gov. Jonathan Worth’s Message to the Legislature, Joint Committee Report, Rejection of the Fourteenth Amendment (Nov. 20 and Dec. 6, 1866) 46. Arkansas, Senate Committee Report, Rejection of the Fourteenth Amendment (Dec. 10, 1866) 47. South Carolina, Gov. James Orr’s Message to the Legislature, Rejection of the Fourteenth Amendment (Nov. 27, 1866) 48. Ex parte Milligan (1866) 49. Reported Meeting between President Andrew Johnson and South Carolina Commissioner Colonel T. Weatherby, New York Herald (Dec. 28, 1866) 50. Frederick Douglass, “An Appeal to Congress for Impartial Suffrage,” Atlantic Monthly (Jan. 1867) 51. US House, Proposed Bill for the Restoration of the Southern States, Speech of Thaddeus Stevens (Jan. 3, 1867) 52. Kentucky, Gov. Thomas Bramlette’s Message to the Legislature, Rejection of the Fourteenth Amendment (Jan. 4, 1867) 53. Washington, DC, Passage of the District Suffrage Bill, Right Way (Jan. 19, 1867) 54. Virginia, Debate in the General Assembly, Rejection of the Fourteenth Amendment (Jan. 8–9, 1867) 55. New York, Gov. Reuben Fenton’s Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 1, 2, and 10, 1867) 56. Ohio, Gov. Jacob Cox’s Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 2 and 4, 1867) 57. Speech of Rep. George Boutwell (R-­MA) on Suffrage and the Fourteenth Amendment, National Anti-­Slavery Standard (Jan. 12, 1867) 58. West Virginia, Gov. Arthur Boreman’s Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 16, 1867) 59. Kansas, Gov. Samuel J. Crawford’s Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 9–11, 1867)

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60. US House, Speech of John Bingham in Opposition to Bill for the Restoration of the Southern States, Exchange with Thaddeus Stevens (Jan. 16, 1867) 61. Indiana, Gov. Oliver P. Morton’s Message to the Legislature, Majority and Minority Committee Reports, Ratification of the Fourteenth Amendment (Jan. 11, 18, and 23, 1867) 62. US House, Cruel and Unusual Punishments Bill, Debate (Jan. 28, 1867) 63. US House, Bill for the Restoration of the Southern States, Vote to Recommit to Committee on Reconstruction (Jan. 28, 1867) 64. Mississippi, Legislative Committee Report, Rejection of the Fourteenth Amendment (Jan. 30, 1867) 65. Louisiana, Gov. J. Madison Wells’s Message to the Legislature, Rejection of the Fourteenth Amendment (Jan. 28, 1867) 66. Proposed “Compromise” Amendment, New York Times (Feb. 5, 1867) 67. Delaware, Gov. Gove Saulsbury’s Message to the Legislature, Rejection of the Fourteenth Amendment (Jan. 1 and Feb. 14, 1867) 68. Pennsylvania, Legislative Debates on the Proposed Fourteenth Amendment (Jan. 14– ­Feb. 6, 1867) 69. Pennsylvania, Vote, Ratification of the Fourteenth Amendment (Feb. 6, 1867) 70. Rhode Island, Gov. Ambrose Burnside’s Message to the Legislature, Ratification of the Fourteenth Amendment (Feb. 2–7, 1867) 71. Wisconsin, Gov. Lucius Fairchild’s Message to the Legislature, Minority Committee Report, Ratification of the Fourteenth Amendment (Jan. 10 and 22, 1867) 72. “The Amendment—The Situation,” Crisis (Feb. 13, 1867) 73. Massachusetts, Legislative Committee on Federal Relations, Majority and Minority Reports on the Proposed Fourteenth Amendment (Feb. 28, 1867) 74. US Congress, First Reconstruction Act (Mar. 2, 1867) 75. US Congress, Tenure in Office Act (Mar. 2, 1867) 76. “On the Massachusetts Committee’s Majority Report,” Boston Daily Advertiser (Mar. 4, 1867) 77. US Congress, Second Reconstruction Act (Mar. 23, 1867) 78. Maryland, Legislature’s Joint Committee Report,

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Rejection of the Fourteenth Amendment (Mar. 19 and 23, 1867) 79. Nebraska, Gov. David Butler’s Message to the Legislature, Ratification of the Fourteenth Amendment (May 17, June 8 and 15, 1867) 80. Suspension of Secretary of War Edwin Stanton, Official Correspondence, Cincinnati Daily Gazette (Aug. 13, 1867) 81. Reverdy Johnson, “A Further Consideration of the Dangerous Conditions of the Country” (Nov. 15, 1867) 82. Ohio, Legislature Rescinds Prior Ratification, Plain Dealer (Jan. 12, 1868) 83. Gen. Ulysses Grant Restores Edwin Stanton to the Office of Secretary of War, New York Tribune (Jan. 15, 1868) 84. President Andrew Johnson Removes Secretary of War Edwin Stanton, Precipitates Impeachment Proceedings, Chicago Republican (Feb. 22, 1868) 85. Iowa, Gov. William M. Stone’s Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 14 and 27, Mar. 9, 1868) 86. New Jersey, Legislature Rescinds Prior Ratification (Feb. 19, 20, and 25; Mar. 5 and 27, 1868) 87. US House, Receipt and Return of New Jersey Withdrawal of Ratification (Mar. 30, 1868) 88. “Mr. Field’s Argument in the McCardle Case,” Report of Congressional Repeal of Supreme Court’s Jurisdiction, New York Herald (Mar. 14, 1868) 89. Arkansas, Gov. Isaac Murphy’s Message to the Legislature, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) (Apr. 3, 1868) 90. “Impeachment . . . The President Pronounced Not Guilty,” New York Herald (May 17, 1868) 91. 1868 Republican National Convention and Party Platform, Chicago (May 21, 1868)

92. Florida, Gov. Harrison Reed’s Message to the Legislature, Ratification of the Thirteenth and Fourteenth Amendments (Reversing Earlier Rejection) (June 9, 1868) 93. US Congress, An Act to Admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, to Representation in Congress (June 25, 1868) 94. North Carolina, Gov. W. W. Holden’s Message to the Legislature, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) (July 2, 1868) 95. South Carolina, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) (July 7 and 9, 1868) 96. Alabama, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection), New Orleans Times (July 14, 1868) 97. “Civil Law Restored in Louisiana; Ratification of the 14th Article of Amendment,” Boston Daily Journal (July 15, 1868) 98. Secretary of State William Seward, Provisional Proclamation of Ratification of the Fourteenth Amendment (July 20, 1868) 99. US Congress, Senate and House Resolutions Declaring the Ratification of the Fourteenth Amendment (July 21, 1868) 100. “Georgia Restored to Civil Authority,” New York Times (July 24, 1868) 101. Secretary of State William Seward, Final Proclamation of the Ratification of the Fourteenth Amendment (July 28, 1868) 102. George W. Paschal, “The Fourteenth Article,” New York Tribune (Aug. 6, 1868) 103. John Bingham, “The Great Importance of the Fourteenth Amendment,” New York Herald (Dec. 3, 1868)

Introduction to Part 1B

In his message accompanying the transmission of the Fourteenth Amendment to the states, President Andrew Johnson not only refused to endorse the amendment— he called into question the very legality of proposing an amendment while “eleven [states] are excluded from representation in either House of Congress” (part 1A, doc. 76). In addition to potential legal problems, there were also “[g]rave doubts . . . as to whether the action

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of Congress is in harmony with the sentiments of the people.” Accordingly, “the steps taken by the Secretary of State, as detailed in the accompanying report, are to be considered as purely ministerial, and in no sense whatever committing the Executive to an approval or a recommendation of the amendment to the State Legislatures or to the people.” The country would debate whether to ratify the Fourteenth Amendment with the

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knowledge that the president and his party viewed the entire effort as constitutionally flawed. When Johnson issued his message, congressional elections were only five months away. The Fourteenth Amendment quickly became a major issue dividing Republicans and Democrats, the topic so dominating the campaign speeches of 1866 that commentators viewed the election as a national referendum on the legality and necessity of the proposed amendment (see doc. 30). Republicans prevailed in a landslide election and received what they viewed as a mandate to secure the ratification of the Fourteenth Amendment (doc. 36). It would be no easy task. Republican supporters of the amendment would first have to defeat efforts by elements of their own party to abandon the amendment and then defeat the obstructionist efforts of a Democratic president unalterably opposed to both the amendment and the Reconstruction policy it represented. Even then, there remained the possibility that the Supreme Court would invalidate the amendment, the legislation meant to secure its ratification, or both. In the end, ratifying the Fourteenth Amendment required winning the congressional elections of 1866, thwarting a flanking effort by dissatisfied radical Republicans, impeaching a president of the United States, and denying the Supreme Court the opportunity to invalidate the entire effort. Most of all, it required opening the ballot boxes to the votes of Southern freedmen. Ratification of the Fourteenth Amendment can be divided into three distinct phases, each with its own issues and stakes. The first phase involved the five-­month congressional campaign season of 1866, extending roughly from the transmission of the amendment to the states in June to the last major state elections in November. The second phase began with the opening of the second session of the Thirty-­Ninth Congress in December 1866 and continued up to the passage of the Second Reconstruction Act during the early days of the Fortieth Congress in March 1867. The final phase ran from the summer of 1867—when President Johnson suspended Secretary of War Edwin Stanton—up to Secretary of State William Seward’s second and final ratification proclamation on July 28, 1868. In between those dates, Secretary Stanton would be restored to his office, President Johnson would be impeached, the Supreme Court would be denied an opportunity to rule on the constitutionality of congressional reconstruction, and Southern freedmen would join with white Southern loyalists in voting for new state governments and a new national ­Constitution.

Phase 1: The 1866 Congressional Campaign

Following quick ratifications by Connecticut, New Hampshire, and Tennessee (this last triggering its readmission to the Union), the country settled in for a summer of congressional campaigning and a national debate about the Fourteenth Amendment (see docs. 1, 2, 7, and 8). Helping to fuel Democratic resistance to the amendment was President Andrew Johnson, who, on his “swing around the circle,” gave speeches opposing the amendment and supporting the election of Democrats in the fall elections (see, e.g., doc. 19). Democrats made ratification, black suffrage, and the legitimacy of the Republican Congress the key issues in the summer and fall campaigns. Over and over, Democrats railed against the efforts to establish black equality and indirectly grant them the vote as well as against the injustice of Congress’s acting in the absence of the eleven states formerly in rebellion (see docs. 3, 6, 14, and 16, respectively). Most ominously, leading Democrats warned that the illegal actions of the Republicans would bring on a “new rebellion and a new war” (doc. 6). According to former secretary of the post office Montgomery Blair, if the people elected a sufficient number of Democrats, this second civil war would be fought “in the North” between a coalition of Northern and Southern Democrats and what Blair called a Northern “minority” of radical Republicans. Declared Blair: [The Radicals] only held the power they possess by excluding the States which they themselves recognized as in the Union. They mean to keep these States out and govern the whole country by the minority in Congress. It really implies the minority over the majority, because the delegation from the South would unite with the Democrats of the North, and overwhelm this majority. If the election comes this fall in favor of the Radicals, the first act will be to turn Andrew Johnson out of his seat. The next thing will be to impeach him. In the next Congress they will only count the twenty-­five States which they consider in the Union: but the Democracy, with the Southern States, will have a majority, and then you will have two Presidents and two Congresses, one recognized by the Radicals, and the other by the Constitution. (doc. 6)

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Republicans denounced demagogic threats that the country was “plunging into civil war; that we might

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have two Congresses” (doc. 24). The current Congress had appropriately acted to secure loyal governments in the South before readmitting them to Congress. The proposed Fourteenth Amendment did not guarantee the political right of black suffrage; it merely secured the same civil rights as the Civil Rights Act—points that were ubiquitous in 1866 Republican political speeches.1 When summer riots in New Orleans led to the deaths of scores of freedmen assembling for civil rights (docs. 10 and 11), President Johnson blamed the massacre on inflammatory Republican rhetoric (doc. 22). Republicans more plausibly pointed to the New Orleans riots as dramatically illustrating the need to pass an amendment securing freedmen’s fundamental rights of speech and assembly (docs. 20, 23, and 33). Johnson only exacerbated matters by having members of his administration insist that state officials could be trusted to protect the personal rights of life, liberty, and property (doc. 34). Newspapers mocked the effort as a “huge political blunder” given the obvious refusal of Southern states to protect “these equal rights and this personal security by state legislation and state administration” (doc. 35). Republicans not only prevailed in the fall elections, they made significant gains in both houses of Congress (see doc. 36), obtaining what they believed to be a mandate to secure the ratification of the Fourteenth Amendment. According to Frederick Douglass in the November 1866 issue of the Atlantic Monthly, “The members go to Washington fresh from the inspiring presence of the people. In every considerable public meeting, and in almost every conceivable way, whether at court-­house, school-­house, or cross-­roads, in doors and out, the subject has been discussed, and the people have emphatically pronounced in favor of a radical policy. . . . Of the spirit and magnitude of the canvass nothing need be said. The appeal was to the people, and the verdict was worthy of the tribunal” (doc. 37).

Phase 2: The Second Session of the 39th Congress

Although Republicans obtained an electoral mandate to secure the ratification of the Fourteenth Amendment, it remained unclear how that could be accomplished. With the exception of Tennessee, by early 1867, every Southern state had followed President Johnson’s advice and rejected the proposed Fourteenth Amendment. Southern state legislative committee reports character1. See esp. docs. 9, 12, 13, 15, 17, 18, and 24–26.

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ized the amendment as an attempt to establish black suffrage (docs. 31 and 32) and as wrongly branding Southern officials as “felons and traitors” (doc. 32). The latter complaint was directed at section three’s office-­ holding prohibitions—a provision members of the rebel-­dominated Southern legislatures found particularly odious. As the Florida Committee on Federal Relations declared in its report on the proposed amendment, “we will bear any ill before we will pronounce our own dishonor” (doc. 42). Most Southern governors denounced the amendment. According to Florida governor David Walker, the amendment was “a measure of consolidation entirely changing the form of government” (doc. 40). North Carolina governor Jonathan Worth insisted that the Republican Congress had violated the constitutional requirement that “every State should have a right to representation in a Congress proposing alterations in the original articles of compact” (doc. 45). Therefore, “no State, pretending to have rights under the Constitution, can, with proper scrupulousness or dignity, ratify an amendment thus proposed.” South Carolina Governor James Orr agreed: because the amendment had not been proposed by “a legally constituted Congress, [the it] is not, Constitutionally or legitimately, before a single Legislature for ratification” (doc. 47). Virginia governor Francis Peirpoint and Alabama governor Robert Patton, on the other hand, tepidly encouraged ratification on the grounds that their states would benefit from readmission and that holding out for better terms would not succeed (docs. 43 and 44). Neither state’s legislature was convinced, however, and both Alabama and Virginia voted to reject the Fourteenth Amendment (docs. 44 and 54). In fact, it was theoretically possible that the Southern states might receive better terms if they continued to hold out. In Ex parte Milligan, decided December 17, 1866, the Supreme Court invalidated unilateral presidential use of military tribunals during times of peace and included dicta suggesting that such tribunals would be unconstitutional even if established by Congress (doc. 48). President Johnson embraced the decision as suggesting the court might ultimately side with his administration, invalidate the Reconstruction Acts, and force Congress to admit the excluded Southern states (doc. 49). Johnson also began working on a watered-­down version of the Fourteenth Amendment that Southern states might accept as a compromise with the Republican Congress (doc. 66). The newly strengthened congressional Republicans,

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however, were in no mood to compromise. No longer facing the danger of a successful Democratic bloc upholding a presidential veto, Republicans were now free to take legislative control of Reconstruction—free, that is, assuming that they could hold together a fractious group of radical, moderate, and conservative Republicans. But where moderates like John Bingham wanted to move forward to secure the ratification of the Fourteenth Amendment, radical Republicans increasingly criticized the proposed amendment as unduly weak. Outside Congress, radical civil rights leader Wendell Phillips denounced the amendment as a “swindle” due to its failure to establish black suffrage (doc. 28). Frederick Douglass criticized his fellow loyalists at the Southern Loyalists Convention for refusing to call for the immediate enfranchisement of freedmen (doc. 21), and he characterized the Fourteenth Amendment as an “unfortunate blunder” for its implied disavowal of the congressional power to nationalize black suffrage (doc. 37). At the 1866 Equal Rights Convention, when women’s rights advocates Elizabeth Cady Stanton and Susan B. Anthony insisted that women’s suffrage be supported no less than black suffrage, Douglass reflected that “[w]hile he thought that the question of equal rights was of importance to women, he thought it was much more so to [blacks]. It was a question of life and death, for New Orleans was remembered by them” (doc. 41). Inside Congress, radical Republicans were increasingly dissatisfied with the prior session’s decision to base the reconstruction of the Union on the willingness of the Southern states to ratify the Fourteenth Amendment. It was now clear that the Southern states (with the exception of Tennessee) would not ratify the amendment. Their continued resistance suggested to radicals that the black enfranchisement provisions of Section Two might be too weak and the rebel disqualification provisions of Section Three too lenient. Moving first on the issue of black suffrage, on January 7, 1867, Congress passed a bill allowing black suffrage in the District of Columbia (doc. 53). Congress next considered a bill offered by Thaddeus Stevens which would bypass the Fourteenth Amendment and take direct control of civil and political rights in the former rebel states. The bill conditioned the readmission of the rebel states on their willingness to guarantee black suffrage, and should any readmitted state later back away from that guarantee, “said State [would] lose its right to be represented in Congress” (doc. 51). In a speech published in the National Anti-­Slavery Standard, Massachusetts represen-

tative George Boutwell declared that it was “better for the country to reject [the Fourteenth Amendment] altogether and fight out the battle upon the plain issue of human rights, equal and exact justice to all men, than to accept this [amendment] as a complete and final measure of restoration” (doc. 57). Radical Republicans like Stevens and Boutwell insisted that Congress had no need of an amendment granting it power to establish justice in the South, and it appeared they now had enough supporters in Congress to pass more aggressive civil rights legislation whether the Fourteenth Amendment was ratified or not. On January 16, 1867, Ohio representative John Bingham addressed the House in opposition to Stevens’s Reconstruction Bill and its implied abandonment of the Fourteenth Amendment (doc. 60). Accusing his radical colleagues of embracing the theories of Wendell Phillips, Bingham characterized Stevens’s bill as an effort to “fling the swindling [Fourteenth] amendment out of the window.” Bingham denounced the entire effort as “a substantial denial of the right of the great people who have saved this Republic by arms to save it by fundamental law—law emanating from the people, law resting upon the sovereign will of the people alone.” Stevens’s bill betrayed the Joint Committee’s decision to make the Fourteenth Amendment the basis of Reconstruction, and it also betrayed those states that had already ratified the amendment. “There are gentlemen here,” Bingham admonished, “who owe their reelection to the Fortieth Congress to the fact that the Union State conventions in the States which they represent upon this floor declared their acceptance of this constitutional amendment, in manner and form as it now stands, as a condition for future restoration.” Most of all, Bingham objected to the idea that, once admitted, a State could lose its right to be represented in Congress if it later amended its laws in a manner otherwise permitted by the Constitution:

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Sir, I am not to be thus driven into a violation of the letter and spirit of the Constitution of the country. Under it the rights of the States are as sacred as those of the nation; its express provision is that— “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” In strange conflict with this is the proposition of this bill, that if the State organized and admitted

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under it exercise the essential powers of local State government thus reserved to the people, contrary to the provisions of this act, the State shall lose its right to be represented in Congress. The equality of the States and the equality of men in the rights of person before the law is what the Constitution enjoins and the people demand. (doc. 60)

to convince the Southern states to change their minds and ratify the Fourteenth Amendment. Absent a Northern “coup” or a Southern change of heart, however, the amendment might fail. In the end, Congress chose pressure and persuasion over a disputed, loyal-­state-­only ratification. In the final days of the Thirty-­Ninth Congress and the opening days of the Fortieth, Congress passed the First and Second Reconstruction Acts (docs. 74 and 77). The First Reconstruction Act, passed over Johnson’s veto on March 2, 1867, divided the Southern states into five military districts, each overseen by “an officer of the army, not below the rank of brigadier-­general” (doc. 74). These districts would remain under military oversight until the populations of the affected states voted to hold constitutional conventions and framed new state governments. If those new governments ratified the Fourteenth Amendment, then each state would be entitled to “representation in Congress” once the amendment was officially part of the Constitution. Although the provisional governments set up by President Johnson had excluded blacks from voting, the First Reconstruction Act required that blacks be allowed to vote for the constitutional convention and to serve as convention delegates. Finally, constitutional oath-­breakers, who were already denied office under Section Three of the Fourteenth Amendment, were excluded from voting. In sum, unlike the first round of voting on the Fourteenth Amendment, this time the voting population would involve freedmen and those loyal to the Union. The Second Reconstruction Act, passed on March 23, 1867 (over another of Johnson’s vetoes), operationalized the first Act by directing the military to organize and oversee both voter registration and the actual vote (doc. 77).

On January 28, 1867, against the strenuous objections of Thaddeus Stevens, Bingham prevailed in asking his colleagues to recommit Stevens’s bill to the Joint Committee (doc. 63). “I know very well,” Stevens complained, “that the reference of the bill to that committee is the death of the measure.” When Bingham protested that he did not concur with Stevens’s characterization of recommitment, Stevens retorted, “The gentleman will recollect that I did not ask his concurrence. In all this contest about reconstruction, I do not propose either to take his counsel, recognize his authority, or believe a word he says.” In fact, although Stevens’s bill never reappeared as a bill, its provisions calling for the reconstruction of Southern governments and the immediate establishment of black suffrage in the Southern states found their way into the First and Second Reconstruction Acts—measures meant to help ensure the ratification of the Fourteenth Amendment (docs. 74 and 77). Although Bingham had convinced his colleagues to maintain their commitment to the Fourteenth Amendment as a blueprint for Reconstruction, it was increasingly unclear how the amendment could be successfully ratified. By March 1867, not only had every Southern state except Tennessee rejected the amendment, but Delaware had also voted against ratification, and Maryland would do so by the end of the month (docs. 67 and 78). Although many Republicans (including John Bingham) insisted that only three-­quarters of the loyal Union states should be required in order to trigger ratification of the amendment, embracing such a course—a “coup d’état,” according to the conservative Crisis (doc. 72)— was fraught with both legal and political peril.2 A more politically acceptable route involved finding some way 2. John Bingham apparently considered the Fourteenth Amendment to be part of the Constitution once twenty loyal states had ratified. See Cong. Globe, 39th Cong., 2nd Sess., 1211 (speech of February 13, 1867) (“by the recorded legislative act of twenty represented States of this Union [the Fourteenth Amendment] has become a part of the supreme law of the land.”).

Phase 3: Impeachment

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The same day Congress passed the First Reconstruction Act, it also passed the Tenure in Office Act (doc. 75). This act prohibited the president from removing any cabinet official without “the advice and consent of the Senate.” Specifically protected was the secretary of war—the official responsible for administering the Reconstruction Acts. As of March 1867, that office was held by Edwin Stanton, a holdover from the Lincoln administration and a man whom Republicans trusted to faithfully execute the acts and arrange a second Southern vote on the Fourteenth Amendment. That August, however, during a congressional recess, President Johnson suspended Stanton and appointed General Ulysses S.

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Grant to serve as interim secretary of war. Stanton acquiesced to his removal but sent a public letter to the president declaring the action illegal:

can, “fears, not groundless, are entertained that there may be even bloodshed. Gen. Logan offered to take 125 men from the Grand Army of the Republic, and go to the War Office, and stand by Mr. Stanton at all hazards” (doc. 84). The House quickly initiated impeachment proceedings and, on February 24, 1868, voted to impeach President Johnson (see doc. 84, note). Although Johnson escaped conviction in the Senate by a single vote (doc. 90), reconstruction of the Southern states now continued, unimpeded by a Johnson loyalist heading the war office. In the early months of 1868, action on the Fourteenth Amendment was more favorable in the South than in the North. In February, New Jersey voted to rescind its earlier ratification, citing, among other reasons, the ejection of Senator John Stockton from the Thirty-­Ninth Congress (doc. 86). In March, Congress received New Jersey’s notice of rescission but returned it to the state on the grounds that it was “disrespectful” and “scandalous in character” (doc. 87). One of New Jersey’s criticisms of the amendment was that it was simply a power grab by an out-­of-­control Congress, citing as an example the recent “attempt to withdraw from the supreme judicial tribunal of the nation, the jurisdiction to examine and decide upon the conformity of their pretended laws to the Constitution, which was the chief function of that august tribunal, as organized by the fathers of the Republic” (doc. 86). This was a reference to Congress having recently voted to deny the Supreme Court jurisdiction to hear Ex parte McCardle— a case involving a challenge to the constitutionality of the Reconstruction Acts. When Congress passed the law repealing the Supreme Court’s jurisdiction to hear the case, the Court had already held oral arguments and seemed poised to invalidate Congress’s effort to reconstruct Southern governments and secure the passage of the Fourteenth Amendment (doc. 88). Instead, the Supreme Court acquiesced to the last-­minute withdrawal of its jurisdiction, withholding its short opinion in McCardle until 1869—well after the ratification of the Fourteenth Amendment (see doc. 88, note). By early summer 1868, the ratification effort had avoided potential disaster at the hands of both the executive branch and the Supreme Court. Instead, one by one, the former rebel states voted to hold constitutional conventions, where they adopted new constitutions and created new state governments. The first action of those governments was to vote on the Four-

Under a sense of public duty, I am compelled to deny your right, under the Constitution and laws of the United States, without the advice and consent of the Senate, and without legal cause, to suspend me from office as Secretary of War. . . . But inasmuch as the General commanding the armies of the United States has been appointed, ad interim, and has notified me that he has accepted that appointment, I have no alternative but to submit under protest to superior force. (doc. 80)

The Tenure in Office Act allowed for the temporary removal of cabinet officials while Congress was in recess, subject to their restoration upon a later Senate vote of disapproval. Grant could therefore serve as interim secretary of war until the Senate voted on the matter during the next session of the Fortieth Congress. From the time of Stanton’s suspension in August 1867 to the Senate’s vote on the matter in January 1868, not a single additional state ratified the Fourteenth Amendment. The only movement on the amendment was the Ohio legislature’s decision to rescind its prior vote of ratification (doc. 82). On January 13, 1868, the Senate voted to disapprove of Stanton’s removal.3 As reported by the press, on January 14, having received word of the Senate vote, General Grant penned a short note to Johnson notifying him that he had restored the office to Stanton and accordingly resigned as interim secretary of war (doc. 83). President Johnson, reported the New York Tribune, was “as much surprised at some features of the transaction of the Stanton affair, of the past forty-­eight hours, as anybody.” Johnson immediately moved to fire Stanton and replace him with General Lorenzo Thomas. Stanton refused to budge and instead barricaded himself in his office, where he had “his meals sent to him” and planned to resist any effort to force him out (doc. 84). The entire affair was a national scandal and threatened to create an armed standoff between members of the military loyal to Johnson and those loyal to congressional Republicans. According to the Chicago Republi3. For an account of the Senate’s vote and General Grant’s actions, see Michael Les Benedict, A Compromise of Principle (New York: Norton, 1974), 294–98. 232

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teenth Amendment. On April 3, the new governor of Arkansas, Isaac Murphy, addressed the recently established state legislature and declared that “[t]he ratification of the new Constitution and the consequent restoration of the State to its vacant place in the Union, will be the fruition of a long-­deferred hope” (doc. 89). That same day, the Arkansas House unanimously voted to ratify the Fourteenth Amendment, with the state Senate doing the same three days later. On June 22, 1868, Congress voted to restore Arkansas to the Union (see doc. 89, p. 414, note *). Other Southern states quickly followed Arkansas’s example. On June 9, Florida reversed its earlier rejections and voted to ratify both the Thirteenth and Fourteenth Amendments (doc. 92). Helping fuel the momentum in the Southern states, on June 25, 1868, Congress passed An Act to Admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, to Representation in Congress (doc. 93). Under the Act, the named states would be readmitted if they passed an officially ratified Fourteenth Amendment and agreed to the condition “[t]hat the constitutions of neither of said States shall ever be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote in said State, who are entitled to vote by the constitution thereof herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all inhabitants of said State.”4 By July 20, every former rebel state except Texas, Mississippi, and Virginia had voted to ratify the Fourteenth Amendment—enough, when counted with the Northern states’ ratifications, to prompt a provisional ratification proclamation by Secretary of State William Seward. According to this initial proclamation, if one counted the purportedly “rescinded” votes of Ohio and New Jersey, “then the aforesaid amendment 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” (doc. 98). The proclamation was no more than provisional, since the secretary of state had no statutory authority “to determine and decide doubtful questions as to the authenticity of the organization of State legislatures, or as to the power of any State legislature to recall a previous act or resolu-

tion of ratification of any amendment proposed to the Constitution.” On July 21, 1868, Congress voted to declare the official ratification of the Fourteenth Amendment and, when doing so, included the votes of Ohio and New Jersey (doc. 99). Finally, on July 28, 1868, Secretary of State Seward issued a second and final proclamation, this one listing every ratifying state along with its ratification date and certifying “that the said amendment has become valid to all intents and purposes as a part of the Constitution of the United States” (doc. 101).

The Ratification Debates: Sources

Along with its political drama, the effort to secure the ratification of the Fourteenth Amendment generated a remarkably deep and extended discussion of constitutional principles and individual rights. Although the official journals of the state legislatures rarely included actual legislative debates, they did include gubernatorial addresses. Governors opened every legislative session with a report on the issues facing the state, and these reports often included extended thoughts on the meaning and purpose of the proposed Fourteenth Amendment. As ratification efforts moved forward, these addresses became increasingly sophisticated as each read and responded to the addresses of their fellow governors. Compare, for example, the arguments and counterarguments of Kentucky governor Thomas Bramlette (opposing the amendment; doc. 52) and West Virginia governor Arthur Boreman (supporting the amendment; doc. 58). State legislative journals generally included the majority and minority reports of committees assigned to study the amendment and draft a resolution of support or rejection. These committee reports often contained extended legal arguments regarding the meaning of the amendment and the legality of proposing amendments in the absence of the Southern states (see, e.g., docs. 31, 32, 61, and 73). Although legislative debates were not recorded in the legislative journals, these debates often were reported the next day in local newspapers (see, e.g., doc. 23). Finally, some states did publish official reports of the legislature’s ratification debates. The Pennsylvania Legislative Record, for example, recorded hundreds of pages of debates on the Fourteenth Amendment, only a small portion of which could be included in this abbreviated collection (doc. 68). In addition to local reporting, national newspapers and magazines kept track of the ratification process

4. The same conditions had been imposed for the readmission of Arkansas. See doc. 89, p. 414, note *.

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(docs. 72 and 97) and published ongoing commentaries on the same (doc. 37, 39, and 102). Newspapers also published accounts of major civil rights conventions, whose members often commented on the proposed amendment and the need for greater federal protection for individual rights (docs. 21, 22, 41, and 91).

freedmen, Douglass insisted, would all come to naught unless those freedmen were given the right to vote: The Civil Rights Bill and the Freedmen’s Bureau Bill and the proposed constitutional amendments, with the amendment already adopted and recognized as the law of the land, do not reach the difficulty, and cannot, unless the whole structure of the government is changed from a government by States to something like a despotic central government, with power to control even the municipal regulations of States, and to make them conform to its own despotic will. While there remains such an idea as the right of each State to control its own local affairs,—an idea, by the way, more deeply rooted in the minds of men of all sections of the country than perhaps any one other political idea,—no general assertion of human rights can be of any practical value. To change the character of the government at this point is neither possible nor desirable. All that is necessary to be done is to make the government consistent with itself, and render the rights of the States compatible with the sacred rights of human nature. ... The true way and the easiest way is to make our government entirely consistent with itself, and give to every loyal citizen the elective franchise,—a right and power which will be ever present, and will form a wall of fire for his protection. (doc. 37)

Black Suffrage

One of the most debated issues throughout the Fourteenth Amendment ratification process involved the question of nationalized suffrage. A subject previously left to state control, the Fourteenth Amendment expressly pressured states to expand the basis of male suffrage or face a representational penalty. As we have seen, radical Republicans during the framing process had unsuccessfully called for an amendment that expressly guaranteed racially impartial suffrage (see part 1A, docs. 34 and 35). Later, during the ratification process, radical Republicans like Wendell Phillips and Frederick Douglass refused to support the proposed amendment not only because it lacked an express guarantee of black suffrage but also because Section Two appeared to constitutionalize state denial of black suffrage, so long as that state accepted the representational penalty (see, e.g., docs. 28, 50). Women’s rights advocates generally refused to support the amendment because it failed to even indirectly support women’s suffrage (doc. 41). Of course, to Republican advocates of the Fourteenth Amendment, its limited intrusion on state regulation of suffrage was an important element in favor of ratification. Time and again, Republicans denied that the amendment established black suffrage. Although Section One defined and protected the fundamental rights of citizenship, suffrage remained a “political” right beyond the scope of the amendment (see esp. docs. 9, 13, and 15). During the 1868 election cycle (which ended with the election of President Ulysses S. Grant), the 1868 Republican platform declared that although “[t]he guaranty by Congress of equal suffrage to all loyal men at the South was demanded by every consideration of public safety, of gratitude, and of justice. . . . the question of suffrage in all the loyal States properly belongs to the people of those States” (doc. 91). Whether Reconstruction could succeed without specifically guaranteeing black suffrage, however, was a matter of some debate. Frederick Douglass repeatedly and publicly declared that, to freedmen, suffrage was a matter of “life and death” (doc. 41; see also part 2B, doc. 18). The efforts of the Thirty-­Ninth Congress on behalf of

In a newspaper interview published a few months after the ratification of the Fourteenth Amendment, John Bingham declared that “[t]he question of universal suffrage is an inevitable part of the future” (doc. 103). According to Bingham, although suffrage traditionally had been confined to “free male persons,” this term now included freedmen. “‘We the people of the United States,’” declared Bingham, “meant the whole body of free male citizens, black or white; and that it should mean this constitutes a republican government.” Bingham was commenting on a rumored constitutional amendment that would expressly guarantee blacks access to the ballot box. And in fact, as Bingham spoke, a fifteenth amendment to the Constitution was already in the works.

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B. Ratification, doc. 1

1 Connecticut, Debate and Ratification of the Fourteenth Amendment June 25 and 27, 1866

Senate, Monday Afternoon, June 25 *

The absent Senators having come in, Mr. Ballard moved to reconsider the vote postponing the consideration of the proposed Amendment of the Constitution of the United States. Carried, and the resolution read. Mr. Fairman called for the reading of the message of the President on the subject. Mr. Roberts inquired if a newspaper publication was to be considered an official document. The Chair said if no objection was made, the matter could be read. Mr. Ballard objected, on the ground that the Clerk was unwell and that it would necessarily consume time. Mr. Fairman was surprised to hear an objection raised to the reading of a message from a President of the United States, especially from a Senator who was elected on a platform that endorsed both the President and Congress. Mr. Appleman thought it would save time to have the matter read. He should be glad to hear anything in this important matter, and asked Mr. Ballard to withdraw his objection. Mr. Ballard complied, and his message was read. Mr. Harrison did not purpose to make any remarks on the subject matter of the resolutions. He remembered that a Constitutional Convention had been advocated during the war to settle the jarring interests existing, but Congress very properly declined, and now, after a seven months session, Congress has seen fit to propose this plan for settling the difficulties of the country. Many would like something more or different, but this was a compromise which should be generally accepted—the best that could be obtained—that would meet the approbation of the loyal people North and South. Mr. Bond said this resolution embodied the extreme views of the radical majority in Congress, and opened up a wide field of discussion, some of the leading points of which he proposed to touch. In the present condition of * Columbian Register (New Haven, CT), June 30, 1866, 2.

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the country, with one-­third of the States unrepresented, this measure was devoid of constitutional authority, and devoid of good. . . . The President has proclaimed the war abandoned, and its objects accomplished—the preservation of the Union and the maintenance of the Constitution. It followed that the States resumed their places as equal members of the Union. There was no need of any precautionary measures. They claim that it is the duty of Congress to admit their representatives. It was not a question of propriety, but indisputable right. Congress could judge of the qualification of its members, but could not disfranchise the States. When a party majority can at its will alter the Constitution, we have arrived at a pass worse than French absolutism, and that is where we are to-­day. Mr. B. passed over the first clause, which he said was the re-­enactment of the civil rights bill; its discussion would consume more time than he cared to occupy. The next clause changed the whole base of representation. For eighty years representation had been based upon population, and not on voters, and he alluded to the different practice in different States. The purport of this amendment was to prohibit each State from requiring any other qualification than age and residence, ignorance, intelligence, moral character and other qualifications deemed necessary. He referred in eloquent terms to the educational institutions of the past and present, the results of which it was proposed to ignore. It was offering a premium for ignorance. Connecticut was committed to a quality requiring intelligence and education, as a qualification to approach the ballot-­box. Shall we ignore it at the dictation of our radical masters at Washington? . . . And why adopt it? Was it thought these amendments would ever be adopted by these States? If the Southern States did adopt them, they would be unworthy to be citizens. What is the object? It was to force the States, Connecticut even, to adopt negro suffrage. ... Mr. Ballard had listened to the argument raised by the fossil remains of the Democratic party, but heard no reason why this amendment should not be adopted. He gave a synopsis of the proposed amendment. The provision that the national debt should not be repudiated, was eminently wise, in view of the threats of repudiation by the Democratic party. The provision against the payment for slaves was also wise. Not to do it would be to offer a premium for another rebellion. ... Mr. B. advocated the propriety of the proposed change of basis of representation. It would deprive the

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South of representation based on loyal blacks, unless they were permitted to vote. We shall vote for it for this reason, and our opponents will vote against it. ... Mr. Rogers could not but feel it a hopeless task to expostulate against this measure, when members declared their willingness to vote without debate. . . . He looked upon this amendment as calculated to widen the breach between the States. It was designed to force upon this State negro-­suffrage or decrease of representation. He was sick and tired of this constant tinkering with the Constitution. It was ample and sufficient for the needs of the Union, and he should vote against all amendments until all the States are represented.

Senate, Monday Evening, June 25

Mr. Fairman. . . . During the first Congress twelve amendments were proposed to the Constitution; they were each of them separate propositions. It did not seem to statesmen then to combine several propositions under one article. The first proposition proposed to declare who shall be citizens of the States—a matter which has heretofore been left to the States themselves. It is proposed to make citizens of them who heretofore it has been a crime to teach to read. It is proposed to suddenly elevate them to a position above, and to give them powers which are denied to the intelligent foreigner, who is obliged to reside seven years in this country before he is a citizen. The second proposition is to have representatives based upon voters. We in this State deny suffrage in several particulars, so that if this amendment passes, we shall lose, perhaps, one representative. He estimated that full ten thousand citizens are in this State denied the right of suffrage. He referred to the negro amendment of last year. We were then denounced, but when it was submitted to the people it was voted down. With this expression of the people recently given, it is now proposed to force the same thing upon us by this amendment. ... Mr. Harrison denied that this amendment represented the opinions of radicals only, in Congress. All the Union men in Congress favored this amendment. . . . But the principle objection to this amendment is that it is to confer some privileges on negroes, men who had done more to aid the government in the war than all the democratic party. The negroes were even willing in the war to aid and even to bear arms in defense of the na-

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tion. When he thought of all the oppression he had suffered for centuries, he could not understand this prejudice against him. It is objected to the second clause that it is a bid for negro suffrage. He thought that if such is the case the democratic party would be willing to allow them to vote to save the representation of the State. If we do not pass this amendment there will be a representation in the South worse than the rotten borough system of England. ... Mr. Granger did not propose to make a set speech, for he knew that the edict had gone forth that the amendment should pass. Still, if ever there was a time for a citizen to speak, now was that time; not as a partisan, but as a statesman, if he is one. . . . he felt called upon to enter his protest against this amendment. It came here under suspicious circumstances. It comes not here as Congress has directed, which is that it be transmitted by the President. It has never been submitted to him, but as soon as engrossed was sent by the Secretary of State. But were it here in due form, it is one that ought not to pass. . . . This amendment, in order to receive the action of the people, should have been prepared by two-­thirds of the House of Representatives. Has this been done? It is on this ground that the President objects: that eleven States were excluded when this amendment was proposed. Has any Senator shown here why they are excluded? They have been denied representation. If they have been denied representation in violation of the Constitution, he cared not what the pretext was, this amendment is vitiated. . . . Was it passed for the good of the country, or to make a party platform—for the Senator (Mr. Harrison) had declared that they would go before the country with this for a platform. Amendments ought not to be passed except in cases where an emergency arises. ... Mr. Fairman moved that the matter be continued to the next General Assembly. ... Motion to continue to next General Assembly, lost. ... The vote on the adoption of the amendment was as follows: Yeas . . . 11 Nays . . . 6 Absent . . . [3] Not voting . . . [1] ...

B. Ratification, doc. 2

House, Tuesday Morning, June 26.

was proposed to override that decision, and make them voters of Connecticut.

Mr. Thompson called up the proposed amendment to the Constitution of the United States. He thought it unnecessary to discuss the matter. Mr. Foster did not wish to discuss the matter, and was inclined to move the previous question. Several members on the Republican side. “Do it, do it.” Mr. Foster closed by moving that speeches be limited to ten minutes. Mr. Munson said this was an important matter. He moved that it be made the special order for Thursday. ... Mr. Thompson had no desire to take advantage of the absence of members. He was willing to postpone, if members desired to debate it, but he would not put it off so long as Thursday. He was willing to have the debate to-­morrow. He had supposed the matter was so well understood as to need no discussion. The amendment was accepted, and the matter made the special order for Wednesday, at 10 A.M.

House, Wednesday Afternoon, June 27

Mr. Burr would try not to occupy more than ten minutes. Some of the provisions are not objectionable, but were already in the Constitution. It comes from a fragmentary Congress, from which eleven States are excluded, and if the fundamental law could be changed by a part of the States, then we are in the midst of despotism. This proposition is not devised for the benefit of anybody, but for punishment.—and Connecticut was singled out. We should be careful of our liberties when it is proposed to take from us the right to say who shall vote. Connecticut has abridged the elective franchise by refusing negro votes, and when we hold a representative by a fraction, this amendment comes in to sweep away that fraction. ... Mr. Bartlett (Rep.) said that early in the session the members on the other side thought they should “collapse” if they didn’t have a fight; if they had now passed that danger, he would call the previous question. The Amendment was passed by a strict party vote: Yeas, 125—Nays, 88.

House, Wednesday Morning, June 27 *

The proposed constitutional amendment to the Constitution of the United States, was called up and read. Mr. Barnum moved that speeches be limited to ten minutes. ... Mr. Bennett of Huntington, did not intend to occupy much time, and should not say a word but that it was an important measure on which his constituents wished to be heard. He asked indulgence as this was probably the last speech he should ever make in the Legislature of Connecticut. His first point was that this subject was not properly before the Legislature. The Constitution provides that resolutions requiring the concurrent vote of both houses of Congress, shall be submitted to the President for his signature. This resolution has not been so submitted. Does any man doubt that this should have been so submitted. . . . The U.S. were not represented, because eleven were excluded. Could it be pretended that they were not States in the Union, after the last amendment had been submitted to them. . . . He referred to the first section, which he insisted made citizens of Indians, who pay taxes, and Chinamen, are entitled to all the privileges of a citizen. Connecticut had repudiated negro-­suffrage, but by this amendment it * Columbian Register (New Haven, CT), July 7, 1866, 1.

2 New Hampshire, House Committee Report (Majority and Minority), Ratification of the Fourteenth Amendment June 26 and July 6, 1866†

The select committee on the Constitutional Amendment, reported the following joint resolution: Resolved by the Senate and House of Representatives, in General Court convened, That the following article, proposed by a joint resolution of Congress to be sub-

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† New Hampshire House Journal, reprinted in New Hampshire Senate Journal, at “House Journal,” 174–78 (1866). [The House Journal, with its own separate pagination, is printed immediately following the Senate Journal. “House” and “Senate” paginations are noted accordingly. —Ed.]

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mitted to the Legislatures of the several States as an amendment of the Constitution of the United States, be ratified and adopted by the Legislature of New Hampshire as an amendment to, and a part of, the Constitution of the United States: namely, ... * The joint resolution was read once, and ordered to a second reading. The minority of the same committee presented the following report, which was read, and, on motion of Mr. Page of Warren, was ordered to be printed:

ence, allowing the States to restrict the right of suffrage if willing to submit to the consequent disabilities. 6. Because said amendment is a dangerous infringement 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 upon 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 carefully guarded by the framers of the Constitution. 7. Because the second section, though reducing the basis of representation, makes no corresponding reduction of direct taxes, and is therefore a palpable violation of a great fundamental principle of our government, that taxation and representation shall be co-­extensive. 8. Because the second section discriminates in favor of those States in which rebels are disfranchised, by allowing them to be counted in the apportionment of Representatives to Congress, and against New Hampshire and other States in which the basis of representation is reduced in proportion to the number of paupers, persons excused from paying taxes at their own request, those whose term of residence at their respective voting places is insufficient by the local law, and various other descriptions of persons, to whom in different States the right to vote is denied or abridged, a provision which must lead to uncertainty and confusion, for want of the statistics necessary for its practical enforcement, and which, when inforced, can only result in manifest injustice. 9. Because the effect of the second section, if adopted, must be to degrade that priceless boon—the elective franchise—and cause a race and scramble in all the States to remove those time-­honored restrictions upon the right of voting which the experience of the past has proved to be necessary and just, and particularly in the Southern States, to open the ballot-­box to a large class who, for many years, must be incapable of an intelligent and safe exercise of the right of suffrage. 10. Because the third section, without the semblance of a trial or conviction for treason, disqualifies for state as well as national office, a numerous class of persons, now thoroughly loyal, who, from their capacity, and from the confidence reposed in them by the people, could most effectually aid in the restoration of the fraternal relationships essential to a permanent re-­union, and deprives the mass of the Southern people of their

HOUSE OF REPRESENTATIVES, June Session, 1866. The undersigned, a minority of the select committee on National Affairs, to whom was referred the message of His Excellency, the Governor, with an attested copy of a resolution of Congress, entitled “A joint resolution proposing an amendment to the Constitution of the United States,” being unable to agree to the report of the majority of said committee, in favor of the ratification of the proposed amendment, beg leave to offer the following as among the reasons for dissent: namely, 1. Because the States most deeply interested in the proposed amendment are unjustly excluded from all participation in the deliberations of the Congress proposing the same. 2. Because there is nothing in the present condition of any section of the country which renders any amendment to the Constitution necessary. 3. Because the inevitable result of frequent amendments to the organic law is to pave the way, by gradual steps—increasing as they proceed—to the unsettling and ultimate destruction of the beautiful and symmetrical fabric left us by the patriots of the Revolution. 4. Because the said amendment embraces, under one article, a variety of subjects, each entitled to separate action; but by its form the States, unable to adopt such parts as they approve, and reject others, are compelled to adopt or reject the whole. 5. Because the proposed amendment is ambiguous or contradictory in its provisions, the first section prohibiting any State from abridging the privileges of citizens of the United States, the right of suffrage being claimed as one of those privileges, and the second section, by infer* [The text of the Fourteenth Amendment appears here. —Ed.]

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B. Ratification, doc. 3

services to that end, until Congress, by a two-­thirds vote, shall remove such disability, thus robbing the people of the fundamental right of choosing their own rulers, and violating the faith of the nation toward many of the persons disqualified, who have been pardoned in due form of law. 11. Because the third section claims for Congress a power to requalify or pardon such disqualified persons, thus usurping a prerogative of the executive branch of the government, and vesting it in a legislative directory in a manner repugnant to the spirit of our free institutions. 12. Because the fourth section, although ostensibly providing that our public debt shall remain inviolate, insults the American people by assuming that there is danger of their repudiating their solemn obligations, while perhaps its real purpose is to protect the United States bondholder from taxation, National as well as State, by intrenching him behind a constitutional provision, thus unjustly exempting the wealthy from their equal share of the public burdens, at the expense of the poorer classes, and setting up and perpetuating a moneyed aristocracy. 13. And finally, because the only occasion and real design 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 regulation of the elective franchise in the States, and thereby force negro suffrage upon an unwilling people. W. C. STUROC, E. A. HIBBARD, ASA P. CATE*

3 New Hampshire, House of Representatives, Speech of E. A. Hibbard June 26, 1866†

Mr. Speaker: As one of the committee on National Affairs, to whom this constitutional amendment was referred, it has fallen to my lot to briefly address the House this evening in defense of the Report made by the minority of the committee. I am well aware that it has been assumed in certain quarters that the proposed amendment would not meet with much opposition in the Legislature of New Hampshire. I am aware that certain newspapers which circulate upon the floor of this House have assumed to give directions to members of both political parties in the Senate and the House of Representatives, to occupy no time in discussion, and not even any time in consideration of this important measure, which everyone admits may deeply affect the welfare of our country, one way or the other, in all future time, although it passed less than two weeks ago by the Congress of the United States. ... The radical congressional leaders determined that they would not be satisfied though the rebels had laid down their arms and the rebellion was completely suppressed; not satisfied though the rebel debts were repudiated and the constitutional amendment abolishing slavery had been adopted by the Southern States, in obedience to the recommendation of President Johnson. They wanted something more, and what they wanted was to force the Southern people to put the negro upon an equality with the white man in the matter of suffrage. No matter how degraded he may be; no matter how ignorant; no matter how incapable of an intelligent exercise of that right; no matter how dangerous it may be to the peace and safety of the South to grant

* [On June 28, 1866, the New Hampshire House ratified the amendment on a vote of 207 to 112. New Hampshire House Journal, reprinted in New Hampshire Senate Journal, at “House Journal,” 233 (1866). On July 6, 1866, the New Hampshire Senate ratified the amendment on a vote of 9 to 3. See id. at “Senate Journal,” 94 (1866). —Ed.]

† Weekly Union (Manchester, NH), July 17, 1866, 2. [Hibbard was coauthor of the House Committee Minority Report. See this section, doc. 2. —Ed.] 239

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it to him; the fiat went forth that directly or indirectly negro suffrage must become an accomplished fact. ... I desire to call your attention to one more objection to the proposition now before the House. A constitutional amendment should be definite and certain, and capable of being easily understood and easily carried into execution. Is such the character of this amendment? On the contrary it is ambiguous and doubtful in all its provisions. No lawyer can foresee whether it may not ultimately be decided that the first section, which provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” really makes a greater inroad into the rights of the States than the friends of the amendment now claim for it.

the rights of the citizen legitimate. We demand, and ask you to concur in demanding, protection to every citizen of the great Republic on the basis of equality before the law, and further, that no State government should be recognized as legitimate under the Constitution in so far as it does not by its organic law make impartial protection full and complete. Under the doctrine of State Sovereignty, with Rebels in the foreground controlling Southern legislatures, and embittered by disappointment in their schemes to destroy the Union, there will be no safety for the loyal element of the South. Our reliance for protection is now on Congress, and the great Union party that has stood, and is standing by the nationality, by the constitutional rights of the citizen, and by the beneficent principles of free government. For the purposes of bringing the loyal Unionists of the South into conjunctive action with the true friends of Republican government of the North, we invite you to send delegates in goodly numbers from all Southern States, including Missouri, Kentucky, West Virginia, Maryland, and Delaware, to meet at Independence Hall, in the city of Philadelphia, on the first Monday of September next. It is proposed that we should meet at that time to recommend measures for the establishment of such government in the South as accords with and protects the rights of all citizens. We trust this call will be responded to by numerous delegations of such as represent the true loyalty of the South—that kind of Government which gives full protection to all the rights of the citizen, such as our fathers intended, and we claim as our birthright. Either the lovers of constitutional liberty must rule the nation, or rebels and their sympathizers be permitted to misrule it. Shall loyalty or disloyalty have the keeping of the destinies of the nation?

4 A Call for a Convention of Southern Loyalists July 4, 1866*

The great issue is upon us! The majority in Congress and its supporters firmly declare that the rights of the citizen enumerated in the Constitution and established by supreme law, must remain inviolate. Rebels and rebel sympathizers assert that the rights of the citizen must belong to the states alone, and under such regulations as the respective States choose voluntarily to prescribe. We have seen this doctrine of State sovereignty carried out in its practical results, until all authority in Congress was denied, the Union temporarily destroyed, the constitutional rights of the citizens in the South nearly annihilated, and the land desolated by civil war. The time has come when the structure of Southern States’ Governments must be laid on constitutional principles, or the despotism grown up under an atrocious leadership be permitted to remain. We know of no other plan than that Congress, under its constitutional powers, shall now exercise its authority to establish the principle whereby protection is made coextensive with citizenship. We maintain that no State, either by its organic law or legislation, can make transgression on * Alexandria Gazette (VA), July 12, 1866, 2.

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B. Ratification, doc. 6

essary, until equal laws and corrected public sentiment would place them on a firm and enduring basis. In these hopes, predicated on the oft-­repeated declarations of the President, we have been grievously disappointed— cruelly deceived. ... Let us perform our duty to ourselves and our country by meeting together for consultation upon our present condition and future interests, and present to the country the united voice of the downtrodden Unionists of the South, presenting a fearless and truthful statement of facts which shall command the attention and challenge the confidence and sympathy of every friend of the Government and of human liberty throughout the land. ... Let us act boldly as becomes free men; and if we thereby incur danger, the country will understand and appreciate the shameless hypocrisy of those who prate of their loyalty and right to readmission into the Union in one breath, and, in the next, excite a brutalized mob to violence upon a citizen for exercising the constitutional right of meeting with his fellow-­citizens to petition the political power of the nation for a redress of grievances. ... Your obedient servants, A.J. Hamilton, of Texas M.J. Saffold, of Alabama Wm. B. Stokes, of Tennessee

5 Circular Accompanying the Call for a Convention of Southern Loyalists July 10, 1866*

Sir:—The undersigned have been appointed, by the signers of the accompanying call, a committee to address you in their behalf, and urge you to prompt and energetic efforts in the appointment of delegates from your State and section, to meet delegates from the other Southern States, in Philadelphia, on the first Monday in September next. By the strong ties of common sufferings in the past, and the dangers present and future which surround us, we appeal to you, once more, to come to the rescue in a moment of imminent danger to yourselves and our country. We had all hoped that when treason was beaten in the field, and her armed traitors captive to the Government which they had wickedly sought to destroy, we of the South who, through four long years of untold suffering and horrors, adhered to her fortunes and her banner amidst all the changes and vicissitudes of war, would at least receive protection to all the constitutional rights of American citizens. We relied too, as we had a right to rely, on the earnest and efficient co-­operation of the Executive of the Nation. ... We confidently expected his hearty co-­ operation with the political department of the Government in providing such governments in the States lately in rebellion as would protect the country from conspirators in official positions against its peace; and secure to loyal citizens life, liberty and property, together with the inestimable privilege of impressing upon the minds of others his conscientious convictions of truth, by speech and through the medium of the press. We also had reason to hope that the freedman as well as the loyal white man in the South would find ample protection for all his rights as an American citizen, by actual military force if nec* Published in The Southern Loyalists’ Convention: Call for a Convention of Southern Unionists, to Meet at Independence Hall, Philadelphia, on Monday, the Third Day of September, 1866, Tribune Tracts 2 (Philadelphia, 1866), 2–4. [Also published in the Sacramento Daily Union (CA), Aug. 15, 1866, 3. —Ed.]

6 Congressional Campaign Speeches of Montgomery Blair and George H. Pendleton, Reading, PA July 18, 1866†

The important political campaign in Pennsylvania was opened at Reading, on the 18th. The principal features

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† Reported in Cincinnati Commercial and reprinted in Speeches of the Campaign of 1866 in the States of Ohio, Indiana and Kentucky (Cincinnati: Cincinnati Commercial, 1866), 4. [Blair served as postmaster general under President Lincoln. Pendleton had been the vice-­presidential candidate alongside Gen. McClellan in the 1864 presidential election. —Ed.]

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Speech of Hon. George H. Pendleton.

were a letter from Augustus Belmont, the Chairman of the National Executive Committee of the Democratic Party; a speech from Montgomery Blair, and a speech from the Hon. George H. Pendleton. ...

...

Speech of Montgomery Blair. ...

We have just got through a sanguinary war for the preservation of the Constitution and the Union, and the question now is shall that bloody war be fruitless of result, and shall we persist in disunion, which, but for the Republican Party, would never have happened? That is the only issue: whether the Republican party shall have power, or whether we shall have the old Union, as established by the Constitution and the fathers. ... Now that the war is over, we have a new question, and that is, whether we are to have the Constitution and the union we have been fighting for. The party in power, true to their interests, keep the country divided; then he found the Democratic party standing for the Union, and he allied himself with the party, and was proud of the connection. The Democratic Party must save the country from a new rebellion and a new war. The war that is to come will not be in the South, but in the North—in Pennsylvania; but in saying so, he did not wish to be regarded as a sensation speaker, but he would proclaim the issue which the Radicals had made. They only held the power they possess by excluding the States which they themselves recognized as in the Union. They mean to keep these States out and govern the whole country by the minority in Congress. It really implies the minority over the majority, because the delegation from the South would unite with the Democrats of the North, and overwhelm this majority. If the election comes this fall in favor of the Radicals, the first act will be to turn Andrew Johnson out of his seat. The next thing will be to impeach him. In the next Congress they will only count the twenty-­five States which they consider in the Union: but the Democracy, with the Southern States, will have a majority, and then you will have two Presidents and two Congresses, one recognized by the Radicals, and the other by the Constitution. ...

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What is the great question, I do not say principle, of to-­day? Shall the Southern States be represented in Congress? Around this question is grouped every other question which the war has raised—and by the principle on which it is decided will every other question be determined. The President says they are entitled to representation—that they have resumed their normal and harmonious relation to the Union. The Democratic Party asserts the same position. The Republican party, speaking by its leaders in Congress, say that although they are at peace with the Union, they shall not be represented till they buy the enjoyment of that right by consenting to amendments to the Constitution, which the Southern people loathe from the bottom of their hearts, and will never yield to except by coercion. [Cheers.] This is the question remitted to the people for decision—and upon their decision depend peace and order, and the perpetuation of the Government, or discontent, disorder, revolution, and anarchy—despotism. Is this not true? If these States are not entitled to representation in Congress, they are not entitled to vote in the electoral colleges. If they are not permitted to vote in 1868, and their vote combined with that of either party at the North would elect a President, will that party submit to the decision? Will it consent that the will of the whole country should be defeated by a known and acknowledged minority, and if it will not submit, will there not be disorder, turbulence, probably war? ... Consider the Constitutional Amendment. Congress insisted upon its adoption as a condition precedent to the admission of Senators and Representatives. If it were entirely desirable; if nobody objected or could object to any of its provisions, still it ought not be proposed. If the States are entitled to representation, the adoption of this amendment ought not to be exacted. If they are not entitled, its adoption will not confer it. If they are entitled, the refusal of the right is the highwayman’s course, who seizes you by the throat and agrees to release his hold if you will give him your purse. In vain you assert that you are entitled to both your freedom and your money. You buy one admitted right by the surrender of another. If they are not entitled, the proposal to confer it is the devise of the devil, who eagerly offered the kingdoms of the earth and the glory thereof, which he didn’t possess, if only his black majesty could be worshipped.

B. Ratification, doc. 7

But what is the amendment? Every person born within the United States shall be citizens thereof and of the State wherein he resides. Citizens of the State; that the Constitution left to each State; so entirely left it there that voters by the law of the State were expressly made electors for Federal officers. No State shall impair the privileges and immunities of citizens of the United States. What are these privileges and immunities? Where are they defined? Where written? The Constitution has already put each citizen of each State upon the same footing as citizens of the several States.

nized and readmitted to all her forfeited rights. Our Senators and Representatives have lingered for many months at the threshold of the Government, asking to be re-­seated in the National Councils. In view of the rebellious conduct of so many of our people, and the treachery of those who controlled her action, Congress has deemed it necessary to require of us certain conditions precedent as guarantees for our future loyalty. To this end it has been deemed necessary to the future security of the whole country that the State Legislature should ratify certain amendments to the Constitution of the United States, which may be briefly stated as follows: 1. Equal protection of all citizens in the enjoyment of life, liberty and property. 2. That classes who are disfranchised without crime shall not be taken into account in fixing the basis of Federal representation. 3. That certain persons who have proved themselves dangerous to the peace of the country shall not be eligible to office. 4. The validity of the National debt shall not be questioned, while all debts incurred in aid of the rebellion are illegal and void. As to the disloyal portion of our people these terms are mild in the extreme; and it is hoped there is nothing in them repugnant to the sentiments of the loyal, or if there be, that all objections will be yielded upon the altar of our common country. Therefore, I, William G. Brownlow, Governor of the State of Tennessee, in consideration of the premises, and viewing the present an “extraordinary occasion,” do issue this my proclamation, convening the General Assembly in extraordinary session, to consider of said amendments to the Federal Constitution, and do call upon the members thereof to assemble in the State Capitol, on Wednesday, July 4, 1866, when and where “the purposes for which they will have been convened” will be more fully stated to them. In testimony whereof, I have hereunto subscribed my name, and caused the Great Seal of the State to be affixed, at the Department in the City of Nashville, the 19th day of June, 1866. By the Governor, W. G. BROWNLOW. a. j. fletcher, Secretary of State.

7 Tennessee, Gov. William Brownlow’s Proclamation and Address, Ratification July 4–19, 1866*

Senate, July 4, 1866

Pursuant to a Proclamation of the Governor of the State of Tennessee, dated June 19th, A.D. 1866, the Senate met in Called Session at the Capital of the State, on the 4th day of July, A.D. 1866, which proclamation was in words and figures as follows, to-­wit:

STATE OF TENNESSEE, Executive Department, Nashville, Tenn., June 19, 1866. To the Members of the General Assembly of the State of Tennessee: Gentlemen:—For more than five years the State of Tennessee has been deprived of her privileges in the Union of our fathers. By the treason of our people we have fallen from our high estate as a member of the great American Confederacy. For more than a year past the loyal people of the State have been trying to place her in a position, and to prove her worthy to be recog-

* Tennessee Senate Journal 3–24 (1866); Tennessee House Journal 23–26 (1866). [Citing its ratification of the Fourteenth Amendment, on July 24, 1866, Congress voted to readmit the State of Tennessee into the Union—the only former rebel state to be readmitted prior to the official ratification of the Fourteenth Amendment. See Cong. Globe, 39th Cong., 1st Sess., 4102–3 (July 24, 1866). For debates in the US House of Representatives regarding the readmission of Tennessee, see this section, doc. 8. —Ed.]

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Senate, July 6, 1866

Executive Message No. 1, extra session, to-­wit:

STATE OF TENNESSEE, Executive Department, Nashville, Tenn., July 6, 1866. Gentlemen of the Senate and House of Representatives, Having convened you in extraordinary session, it is made my duty by the Constitution to state to you the purposes for which you have been convened. The main purpose and that which constitutes the present an extraordinary occasion, is briefly, but directly, stated in my proclamation of the 19th of June, calling you together. To that paper I respectfully refer you. Under the fifth article of the Constitution of the United States, Congress has proposed, as an amendment to that instrument, a fourteenth article, which has been duly certified and communicated to this Department, by the Secretary of State, of the United States. Copies of said proposed amendment, with the authenticating certificate, and letter of enclosure of the Secretary of State, are herewith transmitted for your consideration, and I invoke your action as promptly as is consistent with the gravity and importance of the subject. I beg you to bear in mind, in your deliberations, that while the most of you have been at all times, personally and individually, loyal to the United States, as a whole you represent a State, the most of whose people went into rebellion, raised one hundred and fifty-­four regiments, and sent them into the field to fight against the National Government; levied war against the United States for four years, and were finally conquered and reduced to the condition of inhabitants of a subjugated province, wholly at the mercy of the conqueror. By the laws of nations and the laws of war, the General Government has an undoubted right to prescribe terms of settlement to the State of Tennessee. These terms have been prescribed, and are now presented for your acceptance or rejection. I have every assurance that when they are accepted, your Senators and Representatives will be admitted to their seats in Congress, and the State at once reclad with her long lost rights. Are these terms reasonable? For my own part, they seem to me to be but the decree of political justice and equity, made necessary by the result of the rebellion. By the first section, equal protection in the enjoyment of life, liberty and property, is guaranteed to all

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citizens. Practically, this affects mainly the negro, who having been emancipated by the rebellion, and having lost that protection which the interest of the master gave him, became by the very laws of nature, entitled to the civil rights of the citizen, and to the means of enforcing those rights. To deny this to him, would be to place his life, property and labor in the power of every unfriendly local authority, or evil disposed person, and would be an instance of barbarism unworthy of the age. It will also prevent unjust and oppressive discrimination by one State against the citizens of other States. By the second section, classes who are disfranchised without crime, are not to be counted in ascertaining the basis of Federal representation. This, too, may be regarded as one of the results of the rebellion; a change made necessary by our changed condition. We have now among us a class of freemen, to whom we deny the ballot and all other political rights. Have we a right to count them against the enfranchised citizens of other States? If so, then will three of our citizens, (rebels though they be,) equal in the political balance four citizens of any Northern State, however patriotic; and one citizen of South Carolina or Mississippi will balance two citizens or Union soldiers who may reside North of the Ohio. Certainly the South is not in a condition to claim so great a political advantage in the national adjustment now proposed, unless, indeed, there be merit in rebellion. The third section is intended to prevent that class of rebel leaders from holding office, who, by violating their official oaths, added one great offense to another. It is meant as a safeguard against another rebellion, by keeping out of power those who brought on and are mainly responsible for that through which we have just passed. These men, in law and justice, forfeited their lives and property, but a benign and merciful Government inflicts no other punishment or disability upon them than such as is necessary to prevent them from repeating their crime. No loyal citizen will object to this section. The fourth section declares the validity of our national debt, and that debts incurred or losses sustained in aid of rebellion, are void. This is simply a declaration of the honorable intentions of the nation, and will be endorsed by every American citizen who is worthy of the title. It also refuses compensation for slaves lost or emancipated by the war. As our slaves were lost by the rebellious conduct of our own people, we should not expect to tax the nation to pay for them.

B. Ratification, doc. 7

This brief analysis of the proposed amendment, exhibits a magnanimity on the part of the American people, through their Representatives in Congress, which challenges our admiration. Viewed as terms of final adjustment, between the conqueror and the conquered, their mildness and freedom from all penalty is without a parallel in the history of nations. I congratulate you on your good fortune, in having the opportunity of being the honored agents of restoring the ship of State to her ancient moorings, soon again to set sail upon her voyage of prosperity and glory. But little over a year ago, you assembled in the Capitol, and took charge of the State. She was prostrate, bleeding and helpless. The courts were nowhere held with safety, and justice was administered only within a few fortified posts. County governments were broken up, and peace officers made no efforts to perform their duties, and anarchy, with all its horrors, reigned supreme. Without a treasury or revenue laws, the credit of the State was destroyed, and our grand system of railroads was in ruins; while guerrillas prowled without restraint over the State. You have placed our great State upon its feet. Under your judicious legislation, the treasury has been able to meet the heaviest demands. The credit of the State is rapidly rising to its former maximum height. Your railroads are nearly all in running order, paying the interest on their loans, while all your courts are open, and justice is administered in every part of the State. It is now your proud privilege, to restore the noble old Commonwealth to her ancient position in the Union of our fathers. As you have performed your duty heretofore, in defiance of the abuse and denunciation of traitors, so I am confident you will do so in the future, heedless of threats or dictation from any source. ... WILLIAM G. BROWNLOW. ... Senator Trimble offered Senate Joint Resolution No. 2, to-­wit: Joint Resolution adopting the proposed amendment to the Constitution of the United States: Be it resolved by the General Assembly of the State of Tennessee, That the amendment to the Constitution of the United States, at its present session, in words and figures following, viz: “Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two-­thirds of both houses concurring), That the

following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three-­fourths of said Legislatures, shall be valid as a part of the Constitution, namely: ... * Be, and the same is hereby ratified, as part of the Constitution of the United States. On motion of Senator Trimble, the rules were suspended and the Resolution taken up. Senator Carrigan offered Senate Joint Resolution No. 3, in lieu of Senate Joint Resolution No. 2, to wit: Whereas, The Legislature of the State of Tennessee has been called together under extraordinary circumstances, by proclamation of the Governor, for the solemn purpose of ratifying certain amendments proposed to the States composing this Union, by the Congress of the United States, and, Whereas, The amendments are questions upon which greatest wisdom and statesmanship should be exercised, and its importance fully comprehended by the most sagacious judgments among them, and, Whereas, About one-­third of the State is not represented in this Body, nor indeed can it be until writs of election are issued to fill the vacancies that now exist, and, Whereas, The Constitution of the United States requires that amendments thereto shall be ratified by three-­fourths of the Legislatures of the States, and, Whereas, It is right and proper that all the people should be fully, faithfully and legitimately represented in said Legislature, and feeling it to be our duty before entering upon the discharge of the responsible duties entrusted to us by the people of the State, to have them as fully represented as possible by law, and feeling a deep and anxious solicitude for the speedy and complete resumption of our relations with the Federal Government, and desiring the establishment of harmony and good feeling among the people of our State, and the permanent restoration of impartial justice to all classes whatsoever; therefore, Be it resolved by the General Assembly of the State of Tennessee, That we believe it unwise and impolitic, just at this time, in view of the fact aforesaid, to entertain or adopt the Constitutional amendment by the Congress of the United States.

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* [The text of the Fourteenth Amendment appears here. —Ed.]

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Senate, July 11, 1866

Be it further resolved, That the present extra session adjourn sine die. Senator Trimble moved to lay the Resolution offered in lieu on the table. ... The question was then taken on the motion to lay the Resolution offered by Senator Carrigan, in lieu of the Resolution offered by Senator Trimble, on the table. Mr. Trimble called for the ayes and noes. Ayes—13 Noes—6 ... The motion to table carried.

On motion of Senator Trimble, Senate Joint Resolution No. 2 was taken up on amendments offered by Senator Frazier, of Knox, to-­wit: Provided, That the foregoing proposed amendments to the Constitution of the United States shall not be so construed as to confer the right of suffrage upon a negro, or person of color, or to confer upon such negro or 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 construed as to abridge the reserved rights of the States in the election and qualification of their own officers, and the management of their domestic concerns, as provided and secured by the present Constitution of the United States. Senator Aldridge moved to lay the amendment on the table. The motion was withdrawn. Senator Trimble renewed the motion to lay the amendment on the table, and called for the ayes and noes. Ayes—13 Noes—5 ... And the motion to table carried. ... The main question was then put, to-­wit: The adoption of the Resolution. Senator Powell called for the ayes and noes. Ayes—14 Noes—6 ... And the Resolution was adopted.

Senate, July 9, 1866

Senate Joint Resolution No. 2, was taken up. Senator Thompson offered Senate Joint Resolution No. 3, in lieu of Senate Joint Resolution No. 2, to-­wit: Resolved by the Senate of the State of Tennessee, (the House concurring,) That the proposed amendment to the Constitution of the United States, submitted by the Governor to the Legislature, be submitted to the legally qualified voters of the State, the first Thursday in October next, for their ratification or rejection, and that the Sheriffs of the several counties in the State be authorized and required to advertise, open and hold an election in the several civil districts in each county, on the day aforesaid, and that each voter who shall be in favor of the ratification of the proposed amendment, shall have written upon his ticket “Ratification,” and those opposed to said amendment shall have written upon their tickets the word “Rejection,” and that the said several sheriffs shall make due and separate returns of the result of said election by the 8th day of November next, to the respective Speakers of both Houses of the General Assembly. All of which is respectfully submitted for your consideration. Senator Powell moved to lay the Resolution on the table. The motion was withdrawn. Senator Trimble moved to lay the Resolution on the table. The motion was withdrawn. Senator Trimble renewed his motion to lay on the table, and called for the ayes and noes. Ayes—10 Noes—9

House, July 19, 1866

Message from the Senate: Mr. Speaker:—I am directed by the Senate to inform the House of Representatives that the Senate has adopted Senate Joint Resolution Nos. 2 and 5, herewith transmitted, and asks the concurrence of the House in the same. H. G. FLAGG, P. C. of the Senate. 246

B. Ratification, doc. 8

There being a quorum present, Senate Joint Resolution No. 2, ratifying the Constitutional Amendment, was taken up. ... The vote was taken on the adoption of the Resolution, Senate Joint Resolution No. 2, with the following result: [Ayes—43] [Noes—11] ... The Speaker ruled that there was no quorum present. Mr. Arnell appealed from the ruling of the Speaker. The vote to sustain the ruling of the Speaker was then taken and lost. Ayes—11 Noes—42 ... The appeal of Mr. Arnell being sustained, the Speaker announced the adoption of the Resolution, Senate Joint Resolution No. 2, ratifying the amendment to the Constitution of the United States.

Joint resolution declaring Tennessee again entitled to Senators and Representatives in Congress. Whereas the State of Tennessee has in good faith ratified the article of amendment to the Constitution of the United States, proposed by the Thirty-­ Ninth Congress to the Legislatures of the several States, and has also shown, to the satisfaction of Congress, by a proper spirit of obedience in the body of her people, her return to her due allegiance to the Government, laws, and authority of the United States: Therefore, Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the State of Tennessee is hereby restored to her former proper, practical relation to the Union, and is again entitled to be represented by Senators and Representatives in Congress, duly elected and qualified, upon their taking the oaths of office required for existing laws.

MR. BINGHAM. I renew the demand for the previous question. MR. BOUTWELL. Will the gentleman yield to allow an amendment to be offered? MR. BINGHAM. I will allow it to be read, reserving my right to the floor. The Clerk read the amendment of Mr. Boutwell, as follows:

8 US House, Readmission of Tennessee, Speech of John Bingham July 20 and 23, 1866

That whenever Tennessee shall have ratified the amendment to the Constitution proposed to the Legislatures of the several States by the Thirty-­Ninth Congress, and shall have established an equal and just system of suffrage for all male citizens within its jurisdiction who are not less than twenty-­one years of age, the Senators and Representatives of such State, if found duly elected and qualified, may, after having taken the required oaths of office, be admitted into Congress as such: Provided, That nothing in this section contained shall be so construed as to require the disfranchisement of any loyal person who is now entitled to vote.

July 20, 1866 *

MR. BINGHAM. I demand the regular order. The House accordingly resumed the consideration of the regular order, being the unfinished business of yesterday, which was House joint resolution No. 83, concerning the State of Tennessee, on which Mr. Bingham was entitled to the floor. The pending question was on the substitute offered by Mr. Bingham, on which he had demanded the previous question. MR. BINGHAM. I withdraw the demand for the previous question in order to modify verbally the substitute. The substitute, as modified, was read as follows:

MR. BINGHAM. I cannot yield to allow that to be offered. ... MR. BINGHAM. I rise under the rule to close the debate on the resolution; but first I will yield thirty min-

* Cong. Globe, 39th Cong., 1st Sess., 3974–80 (July 20, 1866). 247

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utes of my hour to my colleague on the committee on reconstruction, the gentleman from Massachusetts, [Mr. Boutwell.] MR. BOUT WELL. I am not ignorant, Mr. Speaker, of the fact that the votes of the House already taken foreshow conclusively its purpose to pass the pending joint resolution for the admission of Tennessee. I can see many reasons which operate on the minds of others as they do upon my own mind tending to such a course; but after the most careful reflection during months and years I am still as deeply convinced as ever of the dangerous nature of this proceeding. ... This morning I offered an amendment, on which, however, the gentleman from Ohio [Mr. Bingham] declined to allow the House to vote, which embodies my opinions concerning the admission of Tennessee. If gentlemen observed the language of that amendment they are aware that I have in some degree departed from my own settled convictions as to the right of all men to the enjoyment of the elective franchise in deference to what I understand to be the judgment of the majority of this House, and possibly at this time to what is the judgment of the loyal people of the country. The resolution that I proposed provided for impartial suffrage in that State by the act of its own people as a condition-­ precedent to its admission to the exercise of power in the government. It secured justice to the colored people of Tennessee first, and then to the colored people of the revolted and still rebellious section of this country. ... My objections are not technical, but vital and fundamental. First, the government which they submit here, and which by your preamble and by your vote you declare under the Constitution to be a republican form of government, is not, as it appears to me, such in fact. I have not time now in these thirty minutes to trace the history of the opinions entertained by the founders of the Republic as to what constitutes a republican form of government. But if they identified themselves with any opinion or idea upon this subject, it was this: that whenever powers were conferred by hereditary rules upon a class of men, or whenever by hereditary rules a class of men were excluded from all participation in the government, that government was necessarily anti-­republican in form as well as in fact. I do not assert that it is necessary that every man should vote, and that a government in which terms and conditions are imposed is necessarily anti-­republican; but the terms and conditions

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must be reasonable; they must be such as to render it not only possible but probable that the great majority will be able to meet the requirements of the law. ... I do not now discuss the question whether we have the power directly to enfranchise the negroes of Tennessee and of the other States recently in rebellion. I have an opinion upon the question, but I offer no argument in its support at the present time. I believe that that power exists in Congress; but now I appeal to the negative power of the Government that we may reject Tennessee, North Carolina, Arkansas, until they perform this act of justice, for the country, for the negroes, for themselves. ... I ask of this House what the answer is to be when the other ten States demand recognition and the admission of members. Do you say they shall not be admitted on the terms you now offer Tennessee? What other terms will you exact of Arkansas, North Carolina, and South Carolina? You can exact none in addition to what you are now exacting, unless you demand for them what I now demand for the people of Tennessee—­impartial suffrage for all loyal adult male citizens. And if you then hesitate to meet the question from which you now shrink—the right of the negro to vote—you will have no excuse for denying full political rights to the other ten States. ... MR. BINGHAM. . . . Mr. Speaker, Tennessee to-­day is as republican as Massachusetts on the principle that the majority of the law abiding citizens of a State who have not forfeited their privileges by treason have the right to control its political power. ... But, says the gentleman, they exclude from the elective franchise loyal black men who bore arms for the defense of the Republic. I admit it. So does Ohio, so does Pennsylvania, and so, also, do a majority of the States of the Union. Is that any reason, sir, that Tennessee should be denied representation in this House? It would be better if justice, equal and exact justice, were established in every State. We are all for equal and exact justice, but justice for all is not to be secured in a day, and he is the wisest statesman and the most faithful to duty who will seize the opportunity this day presented to restore a State to its proper place in the Union; and thereby add one additional vote of a free people in aid of the final ratifica-

B. Ratification, doc. 8

tion of that amendment to the Constitution which provides for the protection of each citizen by the combined power of all; which disfranchises traitors and repudiates all obligations contracted in aid of treason and maintains the nation’s plighted faith inviolate, and secures to every human being in every State the equal protection of the laws. I read this amendment for the consideration of gentlemen who declare a State not republican which ratifies it: ... * There stands the amendment ratified by Tennessee, who comes with this new evangel, “no State shall deny to any person within its jurisdiction the equal protection of the laws.” Let this provision become the supreme law of every State of the Republic by the omnipotence of the ballot and justice will thereby have achieved a triumph long awaited for and prayed for by the oppressed of all lands. ... One great issue has been finally, and I trust forever, settled in the Republic: the equality of all men before the law. Another issue of equal moment is now pending, and it is this: the equality of the States and the right of the majority of loyal freemen to rule. That is the issue between the gentleman and myself; it is the whole issue, and I am glad he sees fit to make it. I want to know upon what principle, if you deny the equality of the State, and the right of the loyal majority to rule, we can maintain intact our institutions, secure the just fruits of the triumph of our arms, or escape the reproach of securing to the rebellion itself the fruits of the great victory. I respectfully demand to know upon what principle you can deny the people of Tennessee representation on this floor, without denying the vital spirit of our free institutions, the right of the people to self-­government. ... The question of being a rebel or a non-­rebel State is not involved, because the forfeiture† was the forfeiture of personal political rights and not the forfeiture of the equal rights of the State upon restoration. ... I say again, these States must be equal before the law. They must each have equal representation in the Senate, * [Here Bingham reads the text of the proposed Fourteenth Amendment. —Ed.] † [That is, the forfeiture of voting rights by traitors in Missouri. —Ed.]

and they must each be represented according to their whole representative population in this House. It cannot be otherwise until your Constitution be changed. It matters not whether the State may have been hitherto in rebellion, or may have been struggling to maintain the Constitution, the rule is the same, and I trust ever will remain, that the States, like the people, are to be equal before the law. That is the position occupied by the friends of this bill. When, sir, did the American Congress ever occupy a prouder or nobler position than in reasserting this day in its length and breadth that grand principle out of which your Constitution and Government sprung, namely, the right of the people, faithful to their own great cause, to take the Government into their own keeping and dictate the terms on which it should hereafter go on? When the clouds hung heavy above us in the first great struggle for American independence, after the foot of the British invader had profaned our soil, and Lexington was red with the blood of our people, and Bunker Hill had shook beneath the shock of the conflict, means were taken, and a confederation was entered into to maintain, by perpetual union and by laws, what was fought for and about to be won by the virtue and valor of the people in arms. By the Articles of Confederation thus entered into it was expressly declared as follows: “And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterward confirmed by the Legislatures of every State.” Article 13.

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Ten years passed; these articles were found, after the peace, insufficient; the fruits achieved by the Revolution were likely to be lost, when Washington, the peerless, and Hamilton, and Jay, publicly declared for a change, an alteration, whether the same should be confirmed by all the States or not. What was the result? Those giant men, the framers of our matchless Constitution, swept away, as though it were a cobweb, the written covenant of the Articles of Confederation, which declared that every one of the thirteen States should be and abide a State of the United States within the Confederation, and that those articles should not be changed without the consent of each State. When asked, “Whence your authority?” the answer of Mr. Madison was, “It is derived

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from the transcendent law of nature and nature’s God, the right of the people to preserve their own nationality and their own liberties.” The right of the majority of the whole people to prescribe the new Government essential to their safety they embodied in the Constitution. That provision stands in your Constitution this day “to witness if I lie.” This is the provision:

peace and safety of every citizen, shall be first made by a State lately in insurrection before such State shall be admitted to representation and shall have a voice and a power in the councils of the Republic. It only remains, if the insurrectionary States ratify this just amendment, for the loyal States to ratify it. If the loyal States vote down this amendment it is at an end, and the future of the Republic is enveloped in clouds and darkness, beyond which no human eye can penetrate. If they pass it it will become the supreme law of the land, and in that event no State ought to be represented upon this floor that does not assent to it. That is the principle upon which this joint resolution stands. Inasmuch as Tennessee has conformed to all our requirements; inasmuch as she has, by a majority of her whole Legislature in each House, ratified the amendment in good faith; inasmuch as she has of her own voluntary will conformed her constitution and laws to the Constitution and laws of the United States; inasmuch as she has by her fundamental law forever prohibited the assumption or payment of the rebel debt, or the enslavement of men; inasmuch as she has by her own constitution declared that rebels shall not exercise any of the political power of the State or vote at elections; and thereby given the American people assurance of her determination to stand by this great measure of security for the future of the Republic, Tennessee is as much entitled to be represented here as any State in the Union. ... The question was taken; and it was decided in the affirmative—yeas 125, nays 12, not voting 46; ... So the joint resolution and preamble were passed. During the roll-­call the following announcements were made: MR. FINCK. Protesting against the preamble, I vote for the resolution. MR. ELDRIDGE. I spit on the preamble, and vote “ay” on the resolution. MR. JOHNSON. I vote “ay” for representation. MR. LE BLOND. I find myself paired on this question. I am in favor of the resolution, but opposed to the preamble, and therefore I cannot vote at all. MR. ROSS. I vote “ay” under protest. MR. TRIMBLE. While I utterly repudiate the preamble, I will not hazard the passage of the resolution by voting against it; and therefore I will vote “ay.”

“The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.”—Article 7.

By such ratification the nine States made the Constitution their supreme law, to the utter exclusion of the Articles of Confederation, and notwithstanding the protest of the four remaining States. The Articles of Confederation went by the board. The Union was organized. Our American nationality was established. Washington took the oath of office in 1789, in New York. The Congress also took the oath and proceeded to legislate. But where were North Carolina and Rhode Island? Out of the Union by their own act, because they refused to assent to the declared will of the majority. It was not for several months after that Rhode Island and North Carolina were admitted into the Union. What, then, are we doing now? We have passed through a like struggle. We but follow the example of the fathers of the Republic. It has become apparent that the nation must perish unless the people who saved it put into the fundamental law of the Union a perpetual guarantee for future safety and security. Through their representatives in Congress they have proclaimed these guarantees and sent them forth to the people for ratification by the State Legislatures. These recusant States must ratify them in good faith and conform their constitutions and laws thereto before being recognized by Congress. As in 1789 the Constitution authorized nine States to exclude from the Union any or all of the remaining four States which should refuse to ratify the Constitution, so to-­day, in 1866, the Constitution authorizes that great body of freemen who cover the continent, organized into twenty-­five loyal States, now represented in this Congress, and represented during the past five years, and who during that long night of peril were under God the saviors of the Republic as they are now the sovereignty of the Republic, to declare that the ratification of this amendment, so essential to the 250

B. Ratification, doc. 9

July 23, 1866 *

The next business on the Speaker’s table was the amendments of the Senate to House joint resolution No. 83, declaring Tennessee again entitled to Senators and Representatives in Congress. ... The next amendment of the Senate was to strike out the preamble of the House and insert in lieu thereof the following:

9 Speech of Indiana Gov. Oliver P. Morton on the Fourteenth Amendment, New Albany, IN July 27, 1866†

Whereas in the year 1861, the government of the State of Tennessee was seized upon and taken possession of by persons in hostility to the United States, and the inhabitants of said State in pursuance of an act of Congress were declared to be in a state of insurrection against the United States; and whereas said state Government can only be restored to its former political relations in the Union by the consent of the law-­making power of the United States; and whereas the people of said State did, on the 22d day of February, 1865, by a large popular vote, adopt and ratify a constitution or government whereby slavery was abolished and ordinances and laws of secession and debts contracted under the same were declared void; and whereas a State government has been organized under said constitution, which has ratified the amendment to the Constitution of the United States abolishing slavery; also the amendment proposed by the Thirty-­Ninth Congress, and has done other acts proclaiming and denoting loyalty: Therefore.

Negro Suffrage.

The first section of the amendment is in these words: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States 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 its laws.” The first clause of the section declares who shall be citizens of the United States, but does not add to their privileges or immunities as citizens. It gives no right, power or privilege to citizens of the United States which they have not always possessed. The first part of the second clause prohibits any State from making or enforcing a law which shall abridge the privileges or immunities of citizens of the United States. Citizens of the United States, as such, though they may not be citizens of any State, have certain great privileges or immunities, which are not to be abridged or interfered with by the laws of any State. This has been done heretofore in many cases, whereby great wrongs were inflicted; and hence the necessity of this provision. The second part of the clause declares that no State shall 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. By this it is intended to throw the equal protection of the law around every person who may be within the jurisdiction of any State, whether citizen or alien, and without regard to condition or residence, not only as to life and liberty, but also as to property. It has hap-

... The question was taken; and it was decided in the affirmative—yeas 93, nays 26, not voting 62; ... So the Senate amendment was agreed to.

† Reported in Cincinnati Commercial and reprinted in Speeches of the Campaign of 1866, 3.

* Cong. Globe, 39th Cong., 1st Sess., 4056 (July 23, 1866). 251

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pened in times past that several of the Southern States discriminated against the citizens of other States, by withholding the protection of the laws for life and liberty, and denying to them the ordinary remedies in the Courts for the vindication of their civil rights, and hence the adoption of this provision. But it is now being desperately argued, to redeem a desperate cause, that the first section of the amendment confers the right of suffrage upon negroes in Indiana and every other State. I confess my astonishment that any respectable lawyer who has the slightest regard for his legal reputation should be willing to commit himself to such a proposition, and argue against the clear meaning of the English language, and the manifest spirit and purpose of the amendment. They might as well try to extract negro suffrage from the Ninth Commandment, which says, “thou shalt not bear false witness against thy neighbor,” and, in fact, I commend these gentlemen to the particular study of that commandment. ... It is from the first part of the second clause of the section, which says “that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” that is pretended to extract negro suffrage. Now if the right of suffrage is a privilege or immunity belonging to citizens of the United States, as such, then these gentlemen are right: but if, on the other hand, the right of suffrage is conferred, regulated, bestowed or withheld, by the several States, then it is not a privilege or immunity of citizens of the United States, as such, but is conferred upon such citizens of the State as the Constitution and laws thereof prescribe. Women and children are citizens of the State, but have not the right of suffrage. If the right of suffrage is a privilege or immunity of citizens of the United States, as such, then it has always been so, for the amendment only defines who shall be citizens of the United States, but does not confer new privileges or immunities, and in that case would always have been under the control of Congress, and not of the States. That the right to suffrage is conferred and regulated by the States exclusively, is a proposition too well understood to be argued here, and springs directly from provisions in the Constitution of the United States. Citizens of the United States, as such, have privileges and immunities which are very clearly described by Judge Perkins in the communication referred to, as follows: “The rights and immunities of a citizen of the United

States are to enjoy civil rights, and to go into any and all the States, and there acquire that citizenship, and enjoy such political rights, in addition to civil, as the State may confer on its citizens, and the proposed Constitutional Amendment meets these two obligations.” If the first section of the amendment confers the right of suffrage upon negroes, it wholly defeats the operation of the second section, which is intended to equalize the representation, and proceeds directly upon the hypothesis that suffrage is regulated by the several States, and makes the basis of representation depend upon the action had by the States on that subject.

10 “The New Orleans Riot,” Albany Evening Journal (NY) August 1, 1866, p. 2

The New Orleans Riot.

The President Forbids “Unlawful Assemblies.” Thirty Negroes and Several Whites Killed. ...

Washington, July 31, 1866

To Andrew S. Herron, Attorney General of Louisiana: You will call on General Sheridan, or whomever may be in command, for sufficient force to aid the civil authorities in suppressing all illegal and unlawful assemblies, who usurp or assume to exercise any power or authority without first having obtained the consent of the people of the State. If there is to be a Convention, let it be composed of delegates chosen from the people of the whole State. The people must be the first consulted in changing the organic laws of the State. Usurpation will not be tolerated. The laws and Constitution must be sustained, and thereby peace and order maintained. Andrew Johnson ...

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B. Ratification, doc. 10

building, leaving inside Gov. Hahn, Judge Howell, Mr. De Costie and other gentlemen, with Clark, attached to the State Government, beside about fifty freedmen. Fortunately, Gov. Wells had just left the building for the purpose of consulting with Gen. Baird about calling out troops, Gen. Sheridan being out of town. The Institution used now as the State Capitol is located in Dryades street, between the Canal and Common, and when the policemen were driven out they were met by a large body of freedmen, who caused them to fall back to Canal street. Hiring a furniture cart, I used it as an observatory on Canal street. The policemen rallied and drove the freedmen and their friends back to Common, and in turn were driven back to Canal street, leaving Dryades street perfectly clear of any vestige of humanity, except the bodies of three dead freedmen. Up to this time one police officer had been mortally wounded, one severely, and others were slightly hurt with clubs and pistol shots. Police reinforcements soon appeared in Canal street, and the crowd of rioters accompanying the police, approached the Institute and commenced throwing stones through the windows and firing pistols at any one they could see inside the building. At the same time a detachment of police attacked the crowd of freedmen on Common street, and after sharp firing and wounding several blacks, they drove them away. This gave the police, and the mob which accompanied them, full control of Dryades street. A fire engine was brought out and placed in front of the Institute, for what purpose I do not know. Several attempts were made by the police to enter the building, but they were repulsed. The ammunition of the men in the Institute seemed to give out about this time, as they did not fire any more. They attempted to escape through the rear of the Institute into Baronne street, but were met and either arrested or shot down. They also tried to escape through an alley which runs from Dryades to Baronne, on the Canal street side. I do not know that any freedman succeeded in getting away from the building alive, although I saw several at a distance from it being marched to Police Headquarters. I think that every one who tried to escape from it was killed, and I saw several brought in the alley above mentioned, and after they fell, I saw crowds of ruffians beating them as they were dying.

More about the Riot

The Murderous Brutality of the Mob

The Meeting of the Convention in Mechanics’ Institute—A Riot Anticipated—General Closing of the Stores throughout the City—Attempt of the Police to Arrest Members of the Convention— The Police Driven Out of the Building—The Rioters and Police Work Together—Attempt to Hang a Member of the Convention—Gov. Hahn Shot and Stabbed while under Guard—Mr. Dostie Shot, Jumped Upon and Cut with Knives—One Hundred Freedmen Killed and Wounded.

Washington, Tuesday, July 31

Your New Orleans correspondent furnishes, under date of July 30, the following detailed and connected account of the outbreak in that city yesterday:— I have already forwarded a number of disconnected dispatches relative to to-­day’s fearful carnage, and now propose to give you a more connected account. I only write what I can substantiate on the best authority. The Convention met at 12 o’clock, twenty-­six members being present, Judge R. K. Howell, since missing, in the chair. R. King Butler, also missing, moved an adjournment of an hour, during which time the Sergeant-­at-­Arms was directed to compel the attendance of absentees. The Hall was densely packed with freedmen and whites, the former having armed themselves extensively since their Friday’s demonstrations. Just after the adjournment a procession containing about a hundred freedmen, carrying a United States flag, and marching the streets with martial music, arrived at the Institute, having had a slight disturbance on Canal street. At this juncture the merchants all over the city, fearing the coming riot, closed their stores. When the process entered the building, a squad of police followed and attempted to make arrests. A scene of the wildest confusion followed; pistols were fired, clubs and canes were used, and brickbats flew in every direction. The policemen claim that they were merely attempting to arrest the Canal street rioters above mentioned; but certain it is that they mounted the platform, where a small body of the members yet remained, and one of them presented a pistol upon their using offensive language. The policemen were finally driven out of the 253

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tense of arrest, members were dragged from the Convention building only to be seized and torn to pieces by the howling mob outside. And these Union men, who had been true to our cause in its darkest hours, were left without protection, to be murdered like dogs! All this time, there were sufficient United States troops in New Orleans to have afforded ample protection to these innocent men, who were being shot down for no other reason than that they had been faithful to the old flag. Who would have thought, a year ago last April, when the whole Rebel Confederacy lay prostrate at our feet, that in less than 18 months the streets of New Orleans would have run red with the blood of Union men murdered by Rebels, and a United States force would stand idly by and behold the damning work going on? And this is the Southern “loyalty” that is prated so much about! These are the men who “accept the results of the war” in good faith! These are the “brethren” we are asked to take to our hearts and forgive and forget their past delinquencies! It would seem as though Providence had allowed these wretches to make a full display of their ferocious malignity, that the people of the United States might be aroused to the perils which still confront them, and to the worse than suicidal results of placing power in the hands of men whose hearts are still bursting with rage against the Union and all who support it. ...

11 “The Rebel Massacre in New Orleans” and “The Right of Free Assemblage,” Evening Telegraph (Philadelphia, PA) August 1, 1866, p. 4

The Rebel Massacre in New Orleans

Fuller details show the New Orleans massacre to have been even more atrocious than first accounts indicated. Nearly forty persons, it is now estimated, were either killed outright, or so dangerously wounded as to render death probable. Among these were several prominent and well-­known citizens. Were this an ordinary riot, while the loss of life would be deplorable, it would possess no particular significance. But the startling feature in this case is that the riot was a political one. It was a fully premeditated, carefully planned, thoroughly prepared Rebel uprising for the purpose of murdering the leaders of the Union cause in the state of Louisiana. The facts lead no manner of doubt of this. This New Orleans mob was as thoroughly a Rebel mob as was the Baltimore mob that murdered our Union soldiers in 1861. It was inspired by the same feelings and intent on the same murderous ends. The Constitutional Convention, which assembled on the day of the riot, had become the central rallying point of the Union men of Louisiana. It was originally elected in 1864, in the midst of the war, and, of course, embrace only those who were acting Unionists in the height of the Rebellion. Hence it was peculiarly obnoxious to the Rebels. It was a moment of true Unionism—not the bogus stuff that now passes by that name in the South— and called back to their wrankling hearts memories of a time when the flag of the Union commanded the respect of the Rebels and gave protection to Union men, even in New Orleans. The meeting of this Convention was the signal for this new Rebel uprising. They were determined to break up the Convention at all hazards, and chose the method of a riot as offering the best facilities for murdering obnoxious members. The miserable wretch who disgraces the office of mayor in New Orleans, and who, if he had his deserts, would be looking through the grates of a prison, was deep in the plot. Everything shows it. Under pre-

The Right of Free Assemblage

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The most shallow and transparent apology offered for the Rebel massacre of Union men in New Orleans is that the Constitutional Convention had no right to assemble. Now it makes not a particle of difference whether that Convention were a valid one or not—whether it had been regularly assembled or not, or whether its action as a Convention would be legal and binding or not; in either or any event, its members had a perfect and undoubted right to assemble. The most sacred of American rights is that of the people to assemble and consult together in any capacity they please. They may call themselves a convention, or what not; their action may take the form of resolutions, ordinances, or anything else, and they are still within the pale of their constitutional rights and privileges. Not until they perpetrate some act which infringes upon someone’s rights do they become amenable to the law. ... In whatever light, therefore, we contemplate the case, the members of the Louisiana Convention had a

B. Ratification, doc. 12

perfect right to assemble. They ought to be protected in their deliberations, and it will be a serious blow to the right of the people to freely assemble and consult together, if the Rebel cutthroats of New Orleans are permitted to permanently disperse them.

12 Speech of Sen. Lyman Trumbull (R-­IL), Chicago, IL August 2, 1866*

The Chicago Tribune of yesterday says: The return of Hon. Lyman Trumbull, United States Senator from Illinois, to his home after a long and arduous session in Washington, was the occasion of a grand outpouring last evening, whose magnitude and enthusiasm well attested the hearty endorsement which the manly course of the distinguished gentleman has received at the hands of his constituents. The demonstration was one of the most hearty ever witnessed in this city. ... Senator Trumbull spoke as follows: Ladies and Gentlemen, and Fellow-­c itizens: It is with an unaffected diffidence that I attempt to reply to this warm greeting, and these complimentary remarks which you have been pleased to make to me. They are more than a compensation for any feeble efforts of mine in behalf of human liberty and human rights. If my course in the public councils of the nation has been such as to justify this warm welcome to my home, then, indeed, I feel that I have discharged my duty. It is the pleasantest reflection that a public man can ever feel. [Applause.] As has been truly remarked, I am just returned from a long and laborious session of Congress—if not the most laborious to me of any session I have ever attended. In many respects the past session of Congress has been an unpleasant one. It was disagreeable, painful, to those of us who had taken part in elevating to the second office in the Government of America him, who, by an acci* Reported in Cincinnati Commercial and reprinted in Speeches of the Campaign of 1866, 6.

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dent, has been elevated to the Presidency, to find that we must disagree. ... During the summer of 1865, great anxiety prevailed throughout the country as to the future reconstruction of the rebel States. Everybody saw that power was passing into the hands of the very men who had been warring against the Government. Many acts of the Legislatures of these reconstructed States were of a character to show their hostility to the condition of things which existed in the Union; were of a character to show that although they acquiesced in the decision of arms, they were not long to acquiesce, in good faith, in the abolition of slavery, and in the protection of the negro race among them. In the State of Virginia, laws were passed—which it is true were set aside by General Terry, in command of that Department, which, he says in his order setting them aside, if permitted to be enforced, would subject the colored people to a worse condition than that of slavery itself. In Mississippi and Alabama, and in other States, laws were passed—under the title of “Vagrant laws,” or “To guard against paupers,”—the effect of which would have been, if they were permitted to have been inforced, to re-­enslave the men made free by the Government of the United States. The President, however, in many instances refused to set aside these acts of those Provisional Legislatures. General Sickles, in command in South Carolina, issued orders in which he prohibited the enforcement of any law discriminating against the rights of the colored men there, or the punishment to which he should be subjected for the commission of crime. General Canby, at New Orleans, issued similar orders. Lieutenant General Grant issued a general order protecting Union men against the oppressive acts of the reconstructed Legislatures, which were aimed at those people because of their Unionism, because of the part they had taken in putting down the rebellion, and also protecting the freedmen in their equal rights before the law. ... I shall not, on the present occasion, go into a detailed statement of the various principles contained in the Freedmen’s Bureau Bill or Civil Rights Bill. The first bill, as I have already remarked, was made a necessity in consequence of the peculiar condition of the Southern States. It was necessary to have some kind of a court there to protect the freedmen in their rights against laws which had been enacted in some of these rebellious States, forbidding freedmen going from home without a

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pass, subjecting them to punishment if they were found abroad at unusual hours, and depriving them of various rights—and hence this military court (if it was a military court) was provided for in the Freedmen’s Bureau Bill; and the bill also contained provisions, with which you are all familiar, for looking after the interests of the freedmen, and the interests of the refugees; and as many white refugees were saved from starvation and suffering through each Freedmen’s Bureau, in some localities, as there were of freedmen. The Civil Rights Bill was intended as a permanent law, to operate, not simply while the military power had control of the rebellious States, but to operate all over the United States and in all times, and its great feature was to confer upon every person born upon American soil the right of American citizenship, and every thing belonging to the free citizen of the Republic. [Cheers.] In other words, it was to make all persons equal before the law—equal in right to acquire property, to dispose of property, to make contracts, enforce contracts, and in every right which belongs to man as a man. Both these bills, as you are aware, were met by an Executive veto . . .—not by reason of any particular features in them, but the veto was against the whole principle of the bill. We then found that the President of the United States was as false to the pledges of his annual message, when he said that equal and exact justice should be meted out to all men, as he had proved the summer previous to the pledges he made when he took the oath of office, saying that the rebels should be impoverished and compelled to take back seats in the work of reconstruction. ... Now to go on with the President. The Congress of the United States devised a programme of its own for the restoration of the rebellious States. Early in the session it appointed a committee to take into consideration their condition. This committee, during the session, reported various amendments to the Constitution of the United States. These amendments finally passed both branches of Congress, and are now submitted to the States for their ratification. I will briefly state what they are: The first, and it is all one, article declares the rights of the American citizen. It is a reiteration of the rights as set forth in the Civil Rights Bill. An unnecessary declaration, perhaps, because all the rights belong to the citizen, but it was thought proper to put in the fundamental law the declaration that all good citizens were entitled alike to equal rights in this Republic [applause]

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and that all who were born here, or who came here from foreign lands and were naturalized, were to be deemed citizens of the United States in every State where they might happen to dwell. The next provision, a very important one, was the basis of representation in Congress upon the voters. That is substantially what the proposition amounts to. Otherwise, these rebels would have their political power increased by the rebellion. Before the war, and when these Southern States were represented in Congress—before they had withdrawn their representatives and rebelled against the Union—they represented both the free and slave population. That is to say, the entire slave population was counted, deducting two-­fifths of those who were held as slaves. The slaves had no political or social rights. They were treated simply as slaves, and yet the owner of property in a slave-­holding State had his property represented in the Federal Council, to make laws and vote. That is the way the Constitution stood. ... Since the rebellion and the abolition of slavery, and since these colored people were made free, this three-­ fifths principle would not apply, but representation by the Constitution, as it now stands unaltered, is upon the entire population. Now, they do not propose in any of these reconstructed States to give this colored population any political or civil rights if they can help it. They would still treat them as beasts if it were in their power to do so. The other representation of the negro population in consequence [of ] the abolition of slavery would be, of course, two-­fifths by reason of the rebellion. They would have a larger influence in the Legislature and in making the laws for the country than if they had not been altogether freed. This would have been a state of things unjust, as we believe, and hence the constitutional amendment was proposed, and is now pending in the several States, which declares in effect—I will not repeat it to you, but in effect declares—that representation shall be based upon the voters; that the right of voting is extended to any of the inhabitants of any of the States who are twenty-­one years of age, and who are citizens of the United States—then the representation of that State is to be diminished in proportion to the number of persons over twenty-­one years of age to whom it denies the right of suffrage. [Applause.] Another amendment proposes to disenfranchise the leading rebels of the South. [Prolonged cheers.] It de-

B. Ratification, doc. 13

clares that any person who has held high office heretofore, and taken an oath to support the Constitution of the United States, but has subsequently joined the rebellion, shall not hold any office of trust or profit, either under the United States or under any State Government. [Cheers.] The effect of that is to put the government in those rebel States in the hands of loyal men—just where Andrew Johnson said it should be when first he spoke on the subject. The previous law for payment of bounties and all pensions for services rendered in suppressing the rebellion, shall remain inviolate. [Applause.] And it provides, further, that no obligation incurred in aid of the rebellion shall ever be valid; and that nothing shall ever be paid to the owners or pretended owners of slaves in consequence of their emancipation. [Enthusiastic cheers.] Every one of these measures was opposed by the so-­called Democratic party, with its ally, Andrew Johnson. They did all they could to oppose them: not only this measure, but the great Constitutional amendment, which has been already ratified for the abolition of slavery throughout the land, was opposed in every State of the Union by the Democratic party—the party opposed to the war—and which is now sending its delegates to the Philadelphia Convention. They opposed the abolition of slavery in the District of Columbia; they opposed the Civil Rights Bill; they opposed the Freedmen’s Bureau Bill; they opposed the present Constitutional Amendment; and they have opposed every measure of reform, of progress, and every act designed to secure equal rights to all mankind. ... Now in conclusion, I want to ask of you, with which of these parties will you act? With the one who, if it has the power, will place this Government in the hands of disloyal men, subjecting the loyal to them; who will deny impartial justice and impartial liberty; who have opposed all these measures to which I have referred? Or will you continue the Government in the hands of the Union Republican party, which has done so much, and which will continue to govern the country in the interest of humanity, of civil rights, of equal rights, and of human liberty? Choose ye between these parties; for I tell you that upon the issue in the November election, now coming, the fall election, depends the question whether this country is to be governed by the loyal or the disloyal men. [Cheers.]

13 Speech of Rep. Schuyler Colfax (R-­IN), Indianapolis, IN August 7, 1866*

I find that it is so exhausting to speak every day in the open air, after the labors of the closing weeks of the session, that I must condense some points which I had intended to present at some length. Therefore I come at once to the Constitutional Amendment, upon which we place ourselves, and which when it is ratified, the doors of Congress will be thrown open, as was the case when the representatives from Tennessee were sworn into Congress, amid applause from all parts of the hall. Although these men in the South are encouraged by their Democratic allies in the North not to yield to these demands, yet I tell you that until they yield they will find that this Constitutional Amendment, like the flaming sword that guarded the Garden of Eden, will block up their pathway to the seats that they so insultingly and menacingly abandoned five years ago. [Tremendous applause.] It is to be the corner-­stone of the Constitution. ... The first section of this Constitutional Amendment is very much denounced by our opponents—very much misrepresented and perverted. [Mr. C. here read the first section of the proposed amendment.] I stand by every word and letter of it; it’s going to be the gem of the Constitution, when it is placed there, as it will be, by this American people. [Applause.] I will tell you why I love it. It is because it is the Declaration of Independence placed immutably and forever in our Constitution. What does the Declaration of Independence say?—that baptismal vow that our fathers took upon their lips when this Republic of ours was born into the family of nations. It says that all men are created equal, and are endowed by their Creator with certain inalienable rights, among which are life, liberty, and the pursuit of happiness; and that to secure these rights governments were instituted among men. That’s the paramount object of government, to secure the right of all men to their equality before the law. So said our fathers at the beginning of the

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* Reported in Cincinnati Commercial and reprinted in Speeches of the Campaign of 1866, 14.

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Revolution. So say their sons to-­day, in this Constitutional Amendment, the noblest clause that will be in our Constitution. It declared that every person—every man, every woman, every child, born under our flag, or naturalized under our laws, shall have a birthright in this land of ours. High or low, rich or humble, learned or unlearned, distinguished or obscure, white or black, born in a palatial residence or born in the humblest cabin in the land, this great Government says “the aegis of protection is thrown over you; you can look up to this flag and your country, and say they are yours.” [Applause.] But, they shudderingly say, on the other side, “This is going to protect a nigger as a citizen.” [Laughter.] Who is it that most needs protection from the law in this land? It is not the rich man; it is not the man with the great intellect; it is not the influential man; it is the down-­trodden, the degraded and the oppressed; and the greatest glory of a free land is that it will stretch out its arm and protect the obscurest man under its flag. [Applause.] But they say there is negro suffrage in that. Well, they ought to know whether there is or not. They have been hunting around for many a long year. They dream of it, and their waking hours have been harassed for years with this chimera and hobgoblin of negro suffrage. The second section expressly leaves this matter to the States, but bankrupted of all legitimate argument, our opponents bring up this old, worn-­out, thread-­bare charge, and try to prove that under this section of the Constitution there is going to be negro suffrage. It happens they have omitted one thing in all their arguments. We passed a bill on the ninth of April last, over the President’s veto, known as the Civil Rights Bill, that specifically and directly declares what the rights of a citizen of the United States are—that they may make and enforce contracts, sue and be parties, give evidence, purchase, lease and sell property, and be subject to like punishments. That is the last law upon the subject. The Democrats haven’t found that out yet. They have been hunting up a new edition of Webster’s dictionary to find the meaning of the word citizen. Why didn’t they go a little further, and find out, in the same dictionary, what a Copperhead was? I grant that a man who votes has a right to be called a citizen, but it don’t follow that every citizen has a right to vote. A ship is a vessel, but all vessels are not ships. Women and children have been citizens from the very organization of the Government. They haven’t voted yet, and yet Mr. Seward, Secretary of State, will give Mrs. Amelia Smith, or whatever her name is, a passport that will entitle her to protection

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as an American citizen all over the world. But she don’t take that passport and vote on it; if she did we would have a larger majority for the Union ticket at the coming election than we will have. [Applause.] The highest authority we can have upon the question of citizenship is the decision of the Attorney General; Mr. Bates, Attorney General under Mr. Lincoln, and a Southern man, laid down a decision which has never been challenged, and the Government and the Supreme Court of the United States have acted upon it. He said that the child in its cradle and its father in the Senate are equal citizens, and that the privilege of voting or holding office is not essential to citizenship. Another authority is Chancellor Kent, and he says that “the privilege of voting and the legal capacity of a man for office are not essential to citizenship, for women are citizens without either.” Reverdy Johnson, who was one of the Reconstruction Committee, presented a minority report against this Constitutional Amendment. It was reserved for the luminaries, here in Indiana, to discover this doctrine of negro suffrage, which had been concealed from its democratic opponents in Washington. Reverdy Johnson, the Democratic leader in the United States Senate, said, in his speech, April 5, 1866, that negroes were not citizens, before the war, “because of slavery and only because of slavery,” and that when slavery was abolished they were just as much citizens as they would have been had slavery never existed. But they say “why do you want to put this into the Constitution?” I answer, it was to embody it forever in the Constitution, and to say to the Judges of the South, who had been deciding the Civil Rights Law unconstitutional, that they must cease to lift their puny arms against this great principle of civil rights. It is put there as a guarantee for the future. [Applause.] I want this great doctrine, that there shall be equality before the law, placed where it can not be repealed, that no State shall deny to any person the equal protection of life, liberty, and civil rights. I desire that in this free land every freeman shall speak his honest sentiment without molestation or danger, and that it is the only way you can have a firm and enduring Union. Who do you think is the author of the first Civil Rights Bill? I mean the human author, for it sprang from God, who declared that he was no respector of persons. It was Moses—not the Moses of to-­day. [Laughter.] He said; “There shall be but one manner of law for him that is born with you and for the stranger,” and that is the true doctrine.

B. Ratification, doc. 13

One thing may relieve the minds of these anxious gentlemen in Indiana, and that is the Constitution of the State, which says no persons shall vote except white male citizens over twenty-­one years of age. Another section says that no negro or mulatto shall have the right to vote. I have not heard of any who propose to change these sections of the Constitution of Indiana. If this should repeal the State Constitution, as they profess to fear, and make every man a voter, there is Attorney General Bates, Chancellor Kent, &c., all prove that children are citizens as much as adults, what an enormously increased franchise we shall have. “The children in the cradle,” to quote Bates, being a citizen, and, with its mother, voting at the polls. It is too ridiculous for argument. The second section provides for the equalization of representation, and has been much discussed before you that I now only add that there were four Representatives elected from South Carolina (they didn’t get in though), and less than twenty thousand votes were polled for these four Representatives, and in the district which I am going to have the honor to represent, and which I am going to represent for the next two years, [great applause,] there are thirty-­five thousand votes. My theory of representation is this: There can’t be any theory more equitable than that one voter shall weigh in political power just as much as another. What can be fairer than that a voter in South Carolina, rebel though he is, shall be entitled to just as much and no more power than a loyal voter in Indiana? But they claim that they shall first have full representation upon all their rebel voters, and then, that, while they disenfranchise the blacks as not being fit to participate in political power, they shall have another moiety of representation based upon these men that they declare not fit to vote. Was there ever any thing more unjust and unequitable than that? Now the Constitution has got to be amended on this point. It reads now that representation shall be based upon all free persons and “three fifths of all other persons.” There are no more slaves now, thank God, thanks to Abraham Lincoln. [Applause.] The Constitution therefore is meaningless on this point. What can be fairer than to say that upon all who share political power shall be the basis? ... I come now to the third section. [The speaker here read the third section of the proposed amendment.] Have you ever thought of a striking feature in this constitutional amendment? We don’t propose the disfran-

chisement from voting of one solitary rebel in the land. In the first section of this amendment we give to all men, irrespective of their connection with the rebellion, their great civil rights. Every traitor can march up to the polls and drop in his Democratic ballot—and it is the ticket he votes. We only propose that a man who has sworn before Almighty God to maintain the Constitution of the United States shall not be allowed to hold office, and to take another oath, until Congress, by a two-­thirds vote, shall remove this disability. What is there extreme or revengeful in that? But they say they will take the oath. Jefferson Davis took the oath over and over again. Alex. H. Stephens took the oath repeatedly. But he forgot his oaths. ... I come now to the fourth section. It fortified the public credit by throwing around it the protection of the Constitution. But if you put power into the hands of the rebels this debt will as certainly be increased as the night follows the day. Look through the South. Do you see any devotion to the Union there? Do you see any willingness on the part of its people to shed their blood for this country, if we should become engaged in a foreign war? Not one iota. The spirit of rebellion and malignity is just as rife there to-­day as it was when the stars and bars floated in triumph from the Potomac to the Rio Grande. ... Before these rebels have their “rights” again, they must ratify this Constitutional Amendment, based on justice and equality, as a security of the future. [Applause.] They shall give to every man the great civil rights that they demand for themselves. They shall not lay the tip of their finger upon the man who is devoted to the Union, and the loyal man shall be allowed to offer the tribute of affection on the grave of those who have fallen in defense of our common liberty. But before I will consent that these men in the Southern States shall come back with their skirts red with the blood of our defenders and legislate for the widows and orphans of the brave men they have killed, I will stand there in my seat, day and night, until my term expires. [Great applause.] And the summing up of the whole matter, in which can be condensed this two-­hours’ speech, is that the only safety of our land is in the principle that loyal men, and loyal men alone, shall govern a preserved Republic. [Enthusiastic applause.] 259

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Congress demands that you shall be its partisan in its support. But I will leave this law without further discussion. Its authors have since admitted that it is unconstitutional and void by providing for the same matter in the first provision of the proposed constitutional amendment, of which I will speak directly. Although we all know that when this law comes before the courts competent to decide, it will be held a usurpation and an infringement of the Constitution, yet I thought I ought somewhat to expose it when the partisans of its authors demand your support. ...

14 Speech of Sen. Thomas A. Hendricks (D-­IN), Indianapolis, IN August 8, 1866*

At a Democratic meeting held here this evening, Mr. Hendricks spoke as follows: ...

Civil Rights Bill.

Constitutional Amendments.

Next in the series of Congressional measures, was the so-­called Civil Rights Bill, the first section of which undertook to confer upon all persons born in the United States, and not subject to any foreign power, the rights of citizenship, without distinction of race or color, and equality of rights in every respect whatever, in relation to person and property, any law or constitution of any State to the contrary notwithstanding. To establish equality of rights, as between white people and negroes, is the object of this section. ... I thought it a wise and just policy when, by a vote of nearly one hundred thousand majority, the people of this State, in their constitution, provided that negroes should not immigrate within our borders. At her birth, Indiana was made a free State by the voice of her people. If slavery had advantages, they never enjoyed them, and it could not rightfully be demanded that they should bear its burdens. Our policy was that our population should not be mixed, and that negroes should not come here to cheapen and degrade labor. However earnestly men may support the present State administration in its purposes to encourage the current of negro immigration, by the refusal to enforce the laws, yet I tell you there will be hot blood when they are found here in such large numbers as to press hard upon white labor. ... This law subjugates the white man; it mocks the negro; it takes away the independence of the State judiciary and compels it to kneel in the presence of Federal authority; it tramples under foot the policy, laws and Constitution of our State; and yet, my countrymen, * Reported in Cincinnati Commercial and reprinted in Speeches of the Campaign of 1866, 9.

Congress proposes a new article to the Constitution, containing four propositions of amendment. Without now considering its merit, I submit to you, as prudent and intelligent citizens, whether this is a fit and safe time to change the Constitution. Eleven States were absent from Congress when the measure was considered. . . . Is it not better, wiser, safer that we wait a little while before we break up the foundations of the Government to substitute new timbers! ... If adopted this section† will confer citizenship on the negroes and the Indians. Senator Doolittle’s amendment to exclude Indians from its operation was rejected. They will become citizens, not only of the United States, but of the States in which they reside. And no State can abridge their “privileges or immunities” as such citizens. What are the privileges and immunities of citizens? The word “privilege” is of comprehensive meaning in such connection; perhaps more comprehensive than the word “rights.” Privileges include rights, and also whatever else the State permits at her discretion. But does it here include political rights and privileges? To vote is a privilege usually enjoyed in the State by the adult male citizen. Why, then, is it not a privilege which the State cannot abridge if this amendment becomes part of the Constitution? ... Are we prepared to go so far, and bring negroes and Indians into political association with ourselves, and endow them, without qualifications for its exercise, with the high right and privilege of participating in the control of the affairs of the Government? That question we 260

† [That is, the first section. —Ed.]

B. Ratification, doc. 16

are now to decide, for if the amendment be adopted, soon thereafter the negro will stand by your side at the polls—and claim to be voted for, to hold office, sit upon juries, to exercise all the rights and enjoy all the privileges which you now enjoy. The authors of this amendment were not entirely satisfied upon this question, and therefore in the second section they propose to the States that if they will allow the negro to vote they shall be entitled to full representation in Congress, but if they deny the right, their representation shall be cut off so far as it rests upon the negro population. . . . The real purpose of this section of the amendment is to secure to the negro the right to vote with the assent of the States, but it is hoped by ambitious leaders to keep it from the people until the elections can be won, and then it will be carried out. ...

and it is the one upon which alone peace, lasting and honorable peace, can be brought to our country. The first clause in that Constitutional Amendment is simply a re-­affirmment of the first clause of the Civil Rights Bill, declaring the citizenship of all men born in the United States, without regard to race or color. Then there is another provision, and a most important one, namely, basing representation on population, excluding such as are excluded by the local law from the suffrage on account of race or color. I should have preferred a Constitutional amendment based upon voting population alone. It was a simple proposition, easily understood; it could not, however, be carried through Congress; but the present proposition is substantially just, and will accomplish the same purpose. ... They say that suffrage follows the bill. That is not true. But suppose it were? In North Carolina the negroes voted a great while, and I never heard of white women marrying black men there, or much of social equality. They also voted in Tennessee, and they vote in New York to-­day; and if they voted here it would make no kind of difference in the social equality or social relations of one single citizen of the State, or of a colored man or woman, and every man of sense knows it; every man who desires to deal fairly with the people knows it.

The Union.

Congress makes the amendment the condition of a restored Union, and you are asked to endorse it by your vote. Sixteen months have passed and the States are as far apart as when the war was closed, except as the President has brought them together. My countrymen be frank and true to yourselves; do you want the Union, the grand old Union that has brought us so much greatness, glory, and prosperity? If so, can we suspend it for the adoption of a party platform? The cause of the Union requires no amendment to the Constitution, but a change in the Congress—that men be chosen who are really for the Union, and for it will sacrifice, if necessary, self, and party, and platform.

16 Speech of Gen. George Morgan, Coshocton, OH August 21, 1866†

15 Speech of Sen. Henry Lane (R-­IN), Indianapolis, IN

At a Democratic meeting held in Coshocton on Tuesday evening last, General George W. Morgan, Democratic candidate for Congress in the Zanesville and Newark District, made the following speech: ...

August 18, 1866*

Constitutional Amendments.

I will tell you, my fellow citizens, when we passed the Constitutional Amendment, we passed a measure transcending in importance all other political questions, * Reported in Cincinnati Commercial and reprinted in Speeches of the Campaign of 1866, 13, 14.

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† Reported in Cincinnati Commercial and reprinted in Speeches of the Campaign of 1866, 15–16. [In the fall of 1866, Morgan, from Ohio, was elected to the US House of Representatives, defeating the incumbent Republican, Columbus Delano. —Ed.]

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Amendment Proposed by Mr. Delano

voted to force negro suffrage upon their constituents against their almost unanimous protest. Mr. Delano proposed to give up the District of Columbia to the control of negroes, and to authorize them to elect a negro Mayor and Council to preside over the Capital of the Republic. The vote of Mr. Delano, in favor of forcing negro suffrage upon his constituents can be seen by reference to McPherson’s Political Manual for 1866, page 115. It is true that Mr. Delano did not speak in favor of negro suffrage in the District, but he did circulate under his grant the speech of the Hon. George W. Julian, on that subject, and from which I will read an extract, that you may judge of the motives which actuated Messrs. Delano and Julian in voting for the negro suffrage bill. Mr. Julian said: “But Congress in this District, has the power to punish by the ballot, and there will be a beautiful poetical justice in the exercise of this power. Sir, let it be applied. The rebels here will recoil from it with horror. Some of the worst of them, sooner than submit to black suffrage, will doubtless leave the District, and thus render the unspeakable service. To be voted down by Yankees and negro ballots will seem to them an intolerable grievance, and this is among the excellent reasons why I am in favor of it. If neither hanging nor exile can be extemporized for the entertainment of our domestic rebels, let us require them at least to make their bed on negro ballots during the remainder of their unworthy lives.” Here, then, my countrymen, we find the motive which induced the Radicals to desire to force negro suffrage on the white citizens of the South. Not for the sake of humanity, not for the sake of the negro, but as a matter of spite and hate against our fellow-­citizens of the Southern States. [Applause.] If the atrocious sentiments uttered by Mr. Julian are not entertained by my distinguished competitor, I will be glad, indeed, to have given him the occasion to explain to his constituents how and why it was that he franked to them so vile and unpatriotic a speech. [Applause.]

...

This proposed amendment might well be entitled “An amendment to prevent the restoration of the Union, and to punish with partial disfranchisement the citizens of all States which refuse to confer the right of suffrage on negroes.” The first section declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside.” This is another bold stride toward a central despotism. If the Federal Government had the power to determine who should be citizens of a State, it would be at once claimed she also had the power to define the rights of such citizens, and we should soon have negro jurors, voters, judges and legislators in Ohio, by virtue of laws of Congress. Section two declares that Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons, excluding Indians not taxed. But that whenever any State shall deny the right of suffrage to negroes that the representation of such State in Congress and in the Electoral College shall be less in proportion to the whole number of white citizens than would be enjoyed in Massachusetts or other negro-­voting States. The object of this proposed amendment, then, is to create negro judges, jurors and legislators, and, if you refuse to make negroes your political equals, then you are to be partially disfranchised. [Applause.] I ask you, Ohioans, are you prepared for this? If you are, then vote for Mr. Delano, and if elected he will aid you in placing yourselves, your wives, sons and daughters, on a level with negroes.

Negro Suffrage.

You know, my friends, that the people of the District of Columbia are not directly represented, and consequently that the people of the District are the constituents of Congress. And it is a fundamental doctrine in our system of Government, that the representative is bound by the will of his constituents. It was proposed by the Abolitionists of New England that the suffrage should be conferred upon the negroes of the District of Columbia. A vote was taken to ascertain the views of the citizens of the District upon that subject, and seven thousand voted against negro suffrage, while only fifty seven votes were given in its favor; and yet, Mr. Delano and the Radical majority in the House,

The Civil Rights Bill.

When Mr. Delano entered the halls of Congress as a Representative, he took a solemn oath to support the Constitution of the United States. The so-­called Civil Rights Bill was introduced. With the scrutiny of a lawyer, Mr. Delano examined its provisions. Under the solemnity of 262

B. Ratification, doc. 17

his oath he declared the bill to be in violation of the Constitution. New England demanded that the bill should be made a law, and Mr. Delano replied that it was against the Constitution, which he had sworn to support. New England insisted—Mr. Delano demurred. At length the bill was put upon its passage. Mr. Delano had sworn to support the Constitution and in an able argument proved the bill to be in flagrant violation of that instrument. But how did he vote? In obedience to the demand of New England, or in pursuance of his own convictions, and the dictates of his oath? Far be it from me, citizens, to do the distinguished and very ingenious gentleman the slightest injustice; and, that justice may be done, let Mr. Delano speak for himself. And, as he is not present, I ask you, fellow-­citizens, to listen with candor and attention, while I read from his speech. Here it is; look at it; examine it for yourselves, that you may be fully satisfied. And, while you listen, ask yourselves, and, when Mr. Delano comes among you, ask him, how it happened that, believing as he did, the bill was in violation of the Constitution; how it happened that, after he had solemnly taken an oath to support the Constitution—how it happened, I say—that, in opposition to his convictions and oath, he voted for the bill which he had proven to be in violation of the Constitution? [Applause.] But the distinguished gentleman shall be heard in his own defense, and, if your judgments be against him, the fault shall be his, not mine. I now read from the speech of the Hon. Columbus Delano, delivered in the House of Representatives, March 8, 1866. He says: ... “Any one,” said Mr. Delano, “who has studied the Constitution of the United States, knows that it was designed to establish a Government with limited powers—powers restricted to the necessary objects of its existence and the proper discharge of the great duties devolving upon it. It was never designed to take away from the States the right of controlling their own citizens in respect to property, liberty and life. If we now go on in a system of legislation based upon the assumption that Congress possesses the right of supreme control in this respect, I submit whether we are not assisting to build a consolidated Government, in view of the powers of which we may well tremble. “Pursuing this train of thought,” said Mr. Delano, “I might go on and show that the authority assumed as the warrant for this bill would enable Congress to exercise almost any power over a State.”

Then, citizens, in this very able speech, Mr. Delano conclusively establishes, first, that if the Civil Rights Bill be inforced it creates negro jurors in Ohio; and, in the next place, he conclusively proves that the bill is unconstitutional. But, you ask, how did Mr. Delano vote? Let the record answer. Here, on page 74 of McPherson’s Manual, we find that Mr. Delano voted for the Civil Rights Bill on its original passage; and on page 80 his vote is recorded in favor of passing the same unconstitutional measure over the veto of the President. Now, fellow-­citizens, if Mr. Delano was in favor of the Civil Rights Bill, why did he speak against it? And if he was against the bill, why did he vote for it? I propound these questions, citizens, not expecting you to answer, but in order to give that honorable and most ingenious gentleman an opportunity to explain. [Applause.] Suppose, my friends, that it should be your pleasure, as it is your right, if you so desire—suppose, I say, that you should again return Mr. Delano to Congress, who among you can tell upon which side of any given question Mr. Delano would speak? And if he did speak in favor of a measure, who among you could say that he would not vote against it?

17 Speech of Rep. John Bingham (R-­OH), Bowerston, OH August 24, 1866*

At a Union meeting held at Bowerston, in Harrison County, Ohio, on Friday last, Hon. John A. Bingham, candidate for re-­election to Congress from the Sixteenth Congressional District, spoke as follows: Fellow citizens—An election more important than that now pending before the American people has never before been held in the Republic. It involves, my fellow citizens, the great question whether the Republic, which has been saved from overthrow by arms, shall be perpetrated by wise and just laws. ... * Reported in Cincinnati Commercial and reprinted in Speeches of the Campaign of 1866, 19. 263

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The Issue.

son of William G. Brownlow—63,000 of them, loyal and true—that State ratified the amendment, and therefore entitled herself to representation in the Congress of the United States, which was immediately granted. What is this amendment? Andrew Johnson does not discuss it in his speech of Saturday. The Philadelphia Convention does not discuss it, so as to enable the people to comprehend it. ...

I tell you, my fellow citizens, to-­day, the simple and unadorned truth, that the issue, and the whole issue, to be decided in the coming election is, whether loyal men— men who kept unbroken through these past years of conflict their obligations of fealty to the Constitution and government—shall rule it by just laws, or whether those who conspired through these years of conflict to overthrow that Government by arms, shall rule it by unjust laws and such legislation as must ultimately end in anarchy and the ruin of the Republic. [Applause.] ...

Section One.

The Amendment.

That Congress which assembled at Washington on the first Monday of last December, and which but recently closed its memorable first session, was as legitimate a Congress as either of the two preceding Congresses, which enacted all the legislation found so essential, and so effective withal to the success of the arms of the Republic. Like the two preceding Congresses, it was elected by the suffrage of the people of but twenty-­five States of the Union. It is, therefore, too late in the day for Andrew Johnson, or any other Johnson, to undertake to challenge the validity of either the existing Congress or of the two preceding Congresses; for the American people, who are the final arbiters in these matters, have settled the question. But, as I said, these issues to which I have referred, indorsed by the Convention at Philadelphia and by the President of the United States, are mere side issues— mere attempts by which the great issue that Congress has presented to the American people may be thrown out of sight—the great issue upon which the American people are about to decide in the coming election—and that is whether the men, good and true, who cover this continent with their habitations from the shores of the Atlantic to the shores of the Pacific shall be permitted to take security for their future by amending the Constitution of their Government. . . . I am glad to be able to inform you, my fellow citizens, that the Legislatures of the three States which of all the States in the Union alone had an opportunity to pass upon that great question, have each and every one of them ratified it. Connecticut has ratified it; New Hampshire has ratified it; and last but not least, the loyal men of Tennessee, who maintained the integrity of your flag through the storm and tempest of battle—who reorganized their government without the aid of Andrew Johnson, in the per-

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I beg for a brief time to call your attention to it. That amendment consists of five sections, the first of which provides that persons born in the United States, and not owing allegiance to a foreign power, and all persons of foreign birth duly naturalized within the United States, are declared to be citizens of the United States. It provides, further, that 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 shall any State deny to any person within its jurisdiction the equal protection of the law. [Cries of “That’s right.”] Yes, it is right. It is the spirit of Christianity embodied in your legislation. It is a simple, strong, plain declaration that equal laws and equal and exact justice shall hereafter be secured within every State of this Union by the combined power of all the people of every State. It takes from no State any right which hitherto did not exist within the letter of your Constitution, and which is essential to the nation’s life. Look at that simple proposition. No State shall deny to any person, no matter whence he comes, or how poor, how weak, how simple—no matter how friendless—no State shall deny any person within its jurisdiction the equal protection of the laws. If there be any man here who objects to a proposition so just as that, I would like him to rise in his place and let his neighbors look at him, and see what manner of man he is. [A voice—“He isn’t here, I guess.”] That proposition, I think, my fellow citizens, needs no argument. No man can look his fellow-­man in the face, surrounded by the clear light of heaven in which we live, and dare to utter the proposition that of right any State in the Union should deny to any human being who behaves himself well the equal protection of the laws. Paralysis ought to strangle the utterance upon the tongue before a man should be guilty of the blasphemy of saying that he himself, to the exclusion of his fellow man, should enjoy the protec-

B. Ratification, doc. 18

tion of the laws. I hazard nothing, I think, in saying to the American people that the adoption of that amendment by the people, and its enforcement by the laws of the nation is, in the future, as essential to the safety and the peace of this Republic, as is the air which surrounds us essential to the life of the people of the nation. Hereafter, the American people can not have peace, if, as in the past, States are permitted to take away freedom of speech, and to condemn men, as felons, to the penitentiary for teaching their fellow men that there is a hereafter, and a reward for those who learn to do well.

of the United States, to enforce the provisions I have just recited by appropriate laws. Pardon me for enumerating them again in your hearing: First, that every person hereafter, in every State, shall have equal protection of the laws, and no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; that every State shall have equal representation in the Congress of the United States, according to its representative population; that neither the United States nor any State shall ever assume or pay a debt contracted in and of the late rebellion or make compensation for the emancipation of slaves, and the national debt contracted for the suppression of the rebellion shall be forever inviolate; that no official who broke his oath of office and voluntarily engaged in treason against the United States shall ever hold any office of trust or honor, either under the United States or under any State of the Union, and the Congress shall have power to enforce these provisions by appropriate laws.

Section T wo.

The next proposition in this amendment is that hereafter representation among all of the States of this Union shall be equal, and based exclusively upon representative population; that South Carolina shall not, upon her restoration to representation in the Congress of the United States, be permitted to elect six Representatives under the present apportionment to the House of Representatives by the votes of 250,000 whites, while, by the same law, under the same appointment, it requires the vote of 800,000 of a white population in Ohio to elect the same number. . . . If you refuse this amendment, then South Carolina, with but 250,000 to 260,000 white population, and more than 400,000 black population, every one of which blacks she excludes from participation in the affairs of the government, may elect six Representatives to the Congress of the United States, while it requires four times that number, almost, to elect six Representatives from the State of Ohio. I know men may say it is all owing to an accident that South Carolina has a surplus black population. To be sure it is, and it is a further remarkable accident that a minority, and a small minority at that, of the white population of South Carolina hold all its political powers, and it is owing to this remarkable fact that the entire political power of the State is in the hands of men lately in arms against the nation. I am in no hurry about allowing those men to come into the Congress of the United States, and surely it will do none of them any good to be elected—it will do no man any good to vote for a man who can’t be sworn in. ...

18 Speech of Rep. Columbus Delano (R-­OH), Coshocton, OH August 28, 1866*

Fellow-­Citizens—The momentous, important and absorbing question before the American people at the present time, in my opinion, is, whether this Government shall be ruled by loyal men who have saved it, or the rebels and their sympathizers who have sought to destroy it. [Applause.] ...

The Congressional Plan.

Now, gentlemen, I call your attention to the Congressional plan of reconstruction, that which has been agreed upon in Congress and submitted to the people of the United States, and which has received the indorsement of the great party of loyal Union men in Ohio, and, I believe, in all the loyal States. I want to assert before you that Congress, by its action, has said that whenever

Section Four. ...

And the last proposition of this amendment is that the Congress of the United States shall have power, in the name and by the authority of the whole people

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* Reported in Cincinnati Commercial and reprinted in Speeches of the Campaign of 1866, 23.

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a State shall adopt the constitutional amendment submitted to the people by the last Congress, its loyal representatives shall be immediately received and admitted to their seats. You ask me how Congress has manifested that purpose? I tell you by the admission of Tennessee under circumstances it is worth while briefly to advert to. Oh, what a struggle there was in Tennessee for the adoption and the defeat of this constitutional amendment! All the power of Executive patronage—all the personal influence of the Executive, was brought to bear on Tennessee to prevent this amendment from being adopted, but that courageous and determined old man, Governor Brownlow, [applause,] aided by the loyal men of Tennessee, gathered the Tennessee Legislature together and they spoke and said “we adopt the amendment.” . . . I turned around and met the Honorable John A. Bingham, of this State, who had just received a telegram from the Senate, saying that forty-­three members of the Tennessee Legislature had ratified the amendment. [Applause.] What a feeling of joy thrilled the heart of every loyal man in the House of Representatives! In a few moments the resolution to admit Tennessee was taken up, and made the special order for the next morning, and the next morning Tennessee was admitted—restored to her place in the galaxy of stars that adorn our national flag, and the galleries sent forth shouts of joy for the return of the old State. [Applause.] ...

of the North going South have not hitherto been safe in the South, for want of constitutional power in Congress to protect them. I know that white men have for a series of years been driven out of the South, when their opinions did not concur with the “chivalry” of the Southern slaveholders. I know that you remember when an able lawyer from Massachusetts was expelled from South Carolina by a Southern mob. And I know that we determined that these privileges and immunities of citizenship by this amendment of the Constitution ought to be protected, and I know you have lost your reason, every man of you, who denies the propriety of their protection. [Applause.] It is needless for me to say here that this declaration as to who are citizens does not confer the right to vote. For there is nobody in this community so illy informed as not to know that the privilege of voting does not follow citizenship—for you know that it has been decided that the child in the cradle is a citizen, as well as the father of that Child in the Senate, and therefore if any body attempts to humbug you with the idea that this clause confers the right of suffrage upon negroes, be prepared to tell him that you were not so ignorant as to believe what he says. You understand this and it is all I need to say on this subject. That we should protect citizens of every color in their civil rights was a necessity growing out of the war. The war emancipated four millions of slaves. They needed the protection of law, for their property, for their contracts and their personal security. Why sir, without this the brave black man who escaped the massacre at Fort Pillow with the loss of an arm or leg, would have been sold out by the laws of some of the Southern States into a condition equal to slavery, for the payment of his debts, and a nation of freemen who had been so much aided as the people of this country were by the black race in the salvation of this Union, who would have neglected to preserve the rights of these citizens, would have been accursed of God and despised of men all over the world. [Applause.] Therefore, sir, citizens’ rights are to be protected. I could elaborate this, but I must pass on.

The Amendment—Clause First.

I say there is your guarantee that when a State ratifies this amendment she will come in. Now you ask me what are the provisions of this amendment, and is it proper to require the States to ratify it before they are received? I will answer. . . . The first provision of the amendment we offer is in substance a definition for citizenship. It declares that all persons born or naturalized in the United States shall be citizens of the United States, and it provides that the privileges and immunities of these citizens shall not be destroyed or impaired by State legislation, and it provides that no man shall be denied life, liberty or property without due process of law. Do you object to that? What part of it? In my opinion, and in the opinion of better lawyers than I, men are citizens without this declaration who are born in the country or naturalized in it. But, I know of no objection to removing all doubts upon that subject by constitutional enactment. I know very well that the citizens of the South and 266

B. Ratification, doc. 19

as in spirit, that these States of the Union have been and still are denied their representation in the Senate and in the House of Representatives. Will we then, in the struggle which is now before us, submit, will the American people submit, to this practical dissolution, a doctrine that we have repudiated, a doctrine that we have declared as having no justice or right? The issue is before you and before the country. Will these States be permitted to continue and remain as they are in practical dissolution and destruction, so far as representation is concerned? It is giving the lie direct—it is subverting every single argument and position we have made and taken since the rebellion commenced. Are we prepared now, after having passed through this rebellion; are we prepared, after the immense amount of blood that has been shed; are we prepared, after having accumulated a debt of over three thousand millions of dollars; are we prepared, after all the injury that has been inflated upon the people, North and South, of this Confederacy, now to continue this disrupted condition of the country? [Cries, “No, no!” “Never!” Cheers.] Let me ask this intelligent audience here to-­night, in the spirit of Christianity and of sound philosophy, are we prepared to renew the scenes through which we have passed? [“No! no! no!”] Are we prepared again to see one portion of this Government arrayed in deadly conflict against another portion? Are we prepared to see the North arrayed against the South, and the South against the North? Are we prepared, in this fair and happy Government of freedom and of liberty, to see man again set upon man, and in the name of God lift his hand against the throat of his fellow? Are we again prepared to see these fair fields of ours, this land that gave a brother birth, again drenched in a brother’s blood? [“Never, never.” Cheers.]

19 Speech of President Andrew Johnson, New York, NY August 29, 1866*

The rebellion has been suppressed, and in the suppression of the rebellion it has declared and announced and established the great fact that these State had not the power, and it denied their right, by forcible or by peaceable means, to separate themselves from the Union. [Cheers. “Good.”] That having been determined and settled by the Government of the United States in the field and in one of the departments of Government— the executive department of the Government—there is an open issue; there is another department of your Government which has declared by its official acts, and by the position of the Government, notwithstanding the rebellion was suppressed, for the purpose of preserving the Union of States and establishing the doctrine that the States could not secede, yet they have practically assumed and declared, and carried up to the present point, that the Government was dissolved and the States were out of the Union. [Cheers] We who contend for the opposite doctrine years ago contended that even the States had not the right to peaceably secede; and one of the means and modes of possible secession was that the States of the Union might withdraw their representatives from the Congress of the United States, and that would be practical dissolution. We denied that they had any such right. [Cheers.] And now, when the doctrine is established that they have no right to withdraw, and the rebellion is at an end, and the States again assume their position and renew their relations, as far as in them lies, with the Federal Government, we find that when they present representatives to the Congress of the United States, in violation of the sacred charter of liberty, which declares that you cannot, even by amendment of the Constitution of the United States, deprive any one of them of their representation—we find that in violation of the Constitution, in express terms, as well * Edward McPherson, ed., The Political History of the United States of America during the Period of Reconstruction (Washington, DC: Philip & Solomons, 1871), 129–30. 267

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20 “The Appeal,” Southern Loyalists Convention, Philadelphia, PA September 6, 1866*

Appeal of the Loyal Men of the South to Their Fellow-­ Citizens of the United States. The representatives of eight millions of American citizens appeal for protection and justice to their friends and brothers in the States that have been spared the cruelties of the Rebellion and the direct horrors of civil war. Here on the spot where freedom was proffered and pledged by the fathers of the Republic we implore your help against a reorganized oppression whose sole object is to remit the control of our destinies to the contrivers of the Rebellion after they have been vanquished in honorable battle; thus at once to punish us for our devotion to our country and to intrench themselves in the official fortifications of Government. ... We cannot better define at once our wrongs and our wants than by declaring that since Andrew Johnson affiliated with his early slanderers and our constant enemies his hand has been laid heavily upon every earnest loyalist in the South. ... That in every State south of Mason and Dixon’s line, his “policy” has wrought the most deplorable consequences—social moral and political. . . . It has allowed the Rebel soldiery to persecute the teachers of colored schools, and to burn the churches in which the freedmen have worshipped the living God. That a system so barbarous should have culminated in the frightful riot * The Southern Loyalists’ Convention: Call for a Convention of Southern Unionists, to Meet at Independence Hall, Philadelphia, on Monday, the Third Day of September, 1866, Tribune Tracts 2 (Philadelphia, 1866), 22. [The “Appeal” and the events at the Southern Loyalists Convention were widely published in national newspapers, covered both favorably and unfavorably. See “Convention of, ‘Appeal of the Loyal Men of the South to Their Fellow Citizens,’” New York Herald-­Tribune, Sept. 7, 1866, 1; “Address of the Southern Loyalists: Appeal of the Loyal Men of the South to Their Fellow Citizens,” Newark Daily Advertiser, Sept. 7, 1866, 1; “Disunion Fourth Day of the Nigger Worshippers Powwow,” New York Herald, Sept. 7, 1866, 6. —Ed.]

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at Memphis, and the still more appalling massacre at New-­Orleans was as natural as that a bloody war should flow from the teachings of John C. Calhoun and Jefferson Davis. Andrew Johnson is responsible for all these unspeakable cruelties, and as he provoked so he justifies and applauds them. Sending his agents and emissaries into this refined and patriotic metropolis, to insist upon making his reckless policy a test upon a Christian people, he forgot that the protection extended to the 14th of August Convention in Philadelphia was not only denied to the free people of New Orleans on the 30th of July, when they assembled to discuss how best to protect themselves, but denied amid the slaughter of hundreds of innocent men. No page in the record of his recent outrages upon human justice and constitutional law is more revolting than that which convicts him of refusing to arrest the preparations for that savage carnival, and not only of refusing to punish its authors, but of toiling to throw the guilty responsibility upon unoffending and innocent freedmen. ... The seed of oligarchy, planted in the Constitution by its slavery features, have grown into a monstrous power, whose recognition thus wrung from the reluctant framers of that great instrument enabled these States to entrench themselves behind the perverted doctrine of States rights, and sheltered by a claim of Constitutional obligation to maintain Slavery in the States to present to the American Government the alternatives of oligarchy with Slavery or Democratic-­Republican governments without Slavery. A forebearing Government bowing to a supposed constitutional behest, acquiesced in the former alternative. The hand of the Government was stayed for 80 years. The principles of constitutional liberty languished for want of Government support. Oligarchy matured its power with subtle design. Its history for 80 years is replete with unparalleled injuries and usurpations; it developed only the agricultural localities, geographically distinct from the free labor localities, and less than one-­third of the whole, with African slaves. It held 4,000,000 of human beings as chattel, yet made them the basis of unjust power for themselves in Federal and State Governments. ... Statute books groaned under despotic laws against unlawful and insurrectionary assemblies aimed at the constitutional guaranties of the right to peaceably assemble and petition for redress of grievances. It proscribed democratic literature as incendiary, nullified

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constitutional guaranties of freedom and free speech and a free press. It deprived citizens of the other States of their privileges and immunities in the States—an injury and usurpation, alike unjust to Northern citizens and destructive of the best interests of the States themselves. ... Soon as the tocsin of war ceased—soon as the clang of arms was hushed—they raise the cry of immediate admission, and with that watchword seek to organize under new forms a contest to perpetuate their unbridled sway. They rehabilitate with their sweeping control of all local and State organizations. The Federal Executive, easily seduced, yields a willing obedience to his old masters; aided by his unscrupulous disregard of Constitution and laws, by his merciless proscription of true democratic opinion, and by all his appliances of despotic power, they now defiantly enter the lists in the loyal North, and seek to wring from freemen an indorsement of their wicked designs. Every foul agency is at work to accomplish this result. Falsely professing to assent to the abolition of slavery, they are contriving to continue its detestable power by legislative acts against pretended vagrants; they know that any form of servitude will answer their unholy purpose. ... We are here to consult together how best to provide for a union of truly republican States, to seek to resume 36 stars on the old flag. We are here to see that ten of these stars—opaque bodies—paling their ineffectual fires beneath the gloom of darkness of oligarchical tyranny and oppression. We wish them to be brilliant stars, emblems of constitutional liberty, glittering orbs sparkling with the life-­giving principles of the model Republic, fitting ornaments of the glorious banner of freedom. Our last and only hope is in the unity and fortitude of the loyal people of America in the support and vindication of the XXXIXth Congress, and the election of a controlling Union majority in the succeeding or XLth Congress. While the new article amending the National Constitution offers the most liberal conditions to the authors of the Rebellion, and does not come up to the measure of our expectations, we believe its ratification would be the commencement of a complete and lasting protection to all our people; and, therefore, we accept it as the best present remedy, and appeal to our brothers and friends in the North and the West to make it their watchword in the coming elections.

21 Frederick Douglass, Speech at Southern Loyalists Convention, Philadelphia, PA September 6, 1866*

It is not for me to enlighten you on the principles of justice and liberty, which should adorn your banner at this time; indeed, I have no new truths applicable to the present state of affairs to press upon you for your consideration. There is no such thing as a new truth or on old truth. Error may be new: it had its beginning, and must have its end. But truth, like the great God from whose bosom it emanates, is from everlasting to everlasting, and cannot pass away. Such a truth is human liberty. Man was born with it; it entered into his creation; the title-­deed is prescribed on all the faculties of the human soul. Another great truth is the equal right of all men to life, liberty and the pursuit of happiness, as announced in the Declaration of Independence. Now, I don’t ask you to adopt the principles of Miss Anna Dickinson. I don’t ask you to adopt the principles of your humble servant. But I do want you to adopt the principles of your Revolutionary fathers; adopt the principles adopted in yonder hall, proclaiming liberty throughout all the land. Let us come back honestly once more to first principles. Our country has just emerged from a great rebellion; a rebellion unlike all other rebellions; a rebellion undertaken to redress no great wrong, to affirm no great human right, but a rebellion undertaken for the sole purpose of establishing and perpetuating the ascendency of a privileged class in the United States—carried on with no other motive than perpetuating slavery as an institution of the South. It would seem that we had suffered enough for the sacred cause of liberty, but it appears from what I have heard that it is not so, that the struggle is not over, I noticed that the resolutions you have passed insist upon equal rights and justice. In the name of God, I ask you, what do you mean by it? Any honest man would suppose that it meant to give men of my complexion equal rights, and exact justice with yourselves. The Convention of the 14th of August used the same words. What did they mean by it? If you mean anything by equal justice and protection of our liberties, 269

* National Anti-­Slavery Standard, Sept. 22, 1866, 1.

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you mean that Fred. Douglass shall have an equal right with every other citizen, in the protection of his life, liberty and property. Then, in God’s name, why do you not come out and say so? I have talked, since I have been here, with learned men from the South, and when I asked them that question, they said: ‘Keep still; it will all come in good time; don’t pile it on too heavy; don’t do that; let us get out of the well and we will attend to you afterwards.’ You remember the fable of the fox and the goat who were in the well together: the fox said he could get out by mounting the goat’s horns, and then he would help the goat out. Reynard forgot the poor goat, and it remains in the well still. Whom do you hope to conciliate by a half-­way policy? Not Andrew Johnson, I hope; not his supporters; not the former slave-­owners of the South. Whom, then, are you holding back for? Why do I ask for suffrage for the black man? Only because it is his right! I ask it now, because you too have just emerged from oppression, and your hearts are softer and more easily appealed to than they will be by and by, perhaps. Now is the time; when the wax is warm, place the stamp upon it to make the impression; when the iron is hot is the time to strike. With the Democratic party—a party of the devil—slavery was the leading element. Liberty must be the positive element of the Republican party. The negro power is a greater one than most people give it credit for. We attempted to crush the rebellion with one hand, the soft right hand, but it was not until you called the strong left arm, which had previously been shackled behind your back, that you were successful in crushing treason. Will you now be so unmerciful, so ungenerous, as to refuse that boon to the blacks, your friends, that you are willing should be extended to the rebels, your enemies the right of suffrage? Surely, if the black man can pay taxes, he can vote. If he can use the loyal musket, he can vote. Five centuries ago, the proud Anglo-­Saxon race were slaves, just the same as we blacks were a few years ago; and see what the race has risen to! I hope to see the day yet when the negroes of the country will be something— not a despised or proscribed race, but worthy of the sacrifices, the great sacrifices which have been made for their redemption from bondage. Negro suffrage is sure to come; and I tell you, gentlemen, unless you inscribe that motto on your banner, I expect to live to see the day when the Democratic party will do it. Come it will.

22 President Andrew Johnson, Remarks on the New Orleans Riot, St. Louis, MO September 8, 1866*

Fellow-­c itizens: In being introduced to you to-­ night, it is not for the purpose of making a speech, it is true I am proud to meet so many of my fellow-­citizens here on this occasion, and under the favorable circumstances that I do. [Cries, “How about our British subjects?”] We will attend to John Bull after awhile, so far as that is concerned. I have just stated that I am not here for the purpose of making a speech; but, after being introduced, I wish simply to tender my cordial thanks for the welcome that you have given to me in your midst. [A voice, “Ten thousand welcomes.”] Thank you, sir! I wish it was in my power to address you under favorable circumstances upon some of the questions that agitate and distract the public mind at this time—questions that have grown out of the fiery ordeal that we have passed through, and which I think as important as that we have just passed by, though the time has come when it seems to me that all ought to be prepared for peace. The rebellion being suppressed, and the shedding of blood being stopped, the sacrifice of life being suspended and stayed, it seems that the time has arrived when you should be at peace, when the bleeding arteries should be tied up. [A voice, “New Orleans.”] Go on; perhaps if you had a word or two on the subject of New Orleans you might understand more about it than you do. [Laughter.] And if you will go back—if you will go back and ascertain the cause of the riot at New Orleans, perhaps you would not be so prompt in calling out “New Orleans.” If you will take up the riot at New Orleans, and trace it back to its source or its immediate cause, you will find out who was responsible for the blood that was shed there. If you will take up the riot at New Orleans and trace it back to the radical Congress, [cheers and cries of “Bully!”] you will find that the riot at New Orleans was substantially planned. If you will take up the proceedings in their caucuses you will understand that they there knew [cheers] that a Convention was to be called, 270

* McPherson, Political History, 136–39.

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which was extinct by its power having expired; that it was said that the intention was that a new government was to be organized, and on the organization of that government the intention was to enfranchise one portion of the population, called the colored population, who had just been emancipated, and at the same time disfranchise white men. When you design to talk about New Orleans [confusion] you ought to understand what you are talking about. When you read the speeches that were made, and take up the facts on the Friday and Saturday before that Convention sat, you will there find that speeches were there made incendiary in their character, exciting that portion of the population, the black population, to arm themselves and prepare for the shedding of blood. [A voice, “That’s so,” and cheers.] You will also find that that Convention did assemble in violation of law, and the intention of that Convention was to supersede the reorganized authorities in the State government of Louisiana, which had been recognized by the Government of the United States; and every man engaged in that rebellion in that Convention, with the intention of superseding and upturning the civil government which had been recognized by the Government of the United States, I say that he was a traitor to the Constitution of the United States, [cheers;] and hence you find that another rebellion was commenced, having its origin in the radical Congress. These men were to go there, a government was to be organized, and the one in existence in Louisiana was to be superseded, set aside, and overthrown. You talk to me about New Orleans. And there the question was to come up, when they had established their government—a question of political powers—which of the two governments was to be recognized, a new government, inaugurated under this defunct Convention, set up in violation of law and without the will of the people. Then when they had established their government and extended universal and impartial franchise, as they called it, to the colored population, then this radical Congress was to determine that a government established on negro votes was to be the government of Louisiana. [Voices, “Never!” Cheers and cries of “Hurrah Andy!”] So much for the New Orleans riot. And there was the cause and the origin of the blood that was shed; and every drop of blood that was shed is upon their skirts, and they are responsible for it. I could test this thing a little closer, but will not do it here to-­night. But when you talk about the causes and consequences that resulted from proceedings of that kind, perhaps as I have

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been introduced here, and you have provoked questions of this kind, though it does not provoke me, I will tell you a few wholesome things that have been done by this radical Congress [cheers] in connection with New Orleans and the extension of the elective franchise. ... Fellow-­citizens, you are all familiar with the work of restoration. You know that since the rebellion collapsed, since the armies were suppressed in the field, that everything that could be done has been done by the executive department of the Government for the restoration of the Government; everything has been done with the exception of one thing, and that is the admission of members from eleven States that went into the rebellion; and after having accepted the terms of the Government—having abolished slavery, having repudiated their debt and sent loyal representatives—everything has been done excepting the admission of representatives, to which all the States are entitled. [Cheers.] When you turn and examine the Constitution of the United States, you find that you cannot even amend that Constitution so as to deprive any State of its equal suffrage in the Senate. [A voice, “They have never been out.”] It is said before me they have never been out. I say so too. That is what I have always said. They have never been out, and they cannot go out. [Cheers.] That being the fact, under the Constitution they are entitled to equal representation in the Congress of the United States without violating the Constitution, [cheers;] and the same argument applies to the House of Representatives. How, then, does the matter stand? It used to be one of the arguments, that if the States withdraw their Representatives and Senators, that was secession—a peaceable breaking up of the Government. Now the radical power in this Government turn round and assume that the States are out of the Union, that they are not entitled to representation in Congress. [Cheers.] That is to say, they are dissolutionists, and their position now is to perpetrate a disruption of the Government; and that, too, while they are denying the States the right of representation, they impose taxation upon them, a principle upon which, in the Revolution, you resisted the power of Great Britain. We deny the right of taxation without representation; that is one of our great principles. Let the Government be restored; let peace be restored among this people. I have labored for it; I am for it now. I deny this doctrine of secession, come from what quarter it may, whether from the North or from

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the South. I am opposed to it, and am for the union of the States. [Voices, “That’s right,” and cheers.] I am for the thirty-­six States, representing thirty-­six States, remaining where they are under the Constitution as your fathers made it and handed it down to you; and if it is altered or amended, let it be done in the mode and manner pointed out by that instrument itself, and in no other. [Cheers.]

23 New Jersey, Legislative Debates and Ratification September 11, 1866*

Ninetieth Legislature—Extra Session

Senate. ... Mr. Scovel presented a Joint Resolution ratifying the Amendment of the Constitution of the United States. On motion the rules were suspended and the Resolution was taken up on its second reading. Mr. Wurts said he did not intend to speak on this subject as it would be a waste of time and breath, as it was a forgone conclusion. He could only look upon it as a partisan measure, unwise and uncalled for. He would call the attention of the Senate to the second section which provides that any abridgement of the right of suffrage will reduce proportionately the representation in Congress. By the Constitution of the State paupers are not allowed to vote, nor are United States soldiers quartered among us. Now would not this Resolution either legalize the vote of paupers or reduce the representation of the State in Congress.— Another point is that in the State of New Jersey we require a residence of one year in the State, and five months in the county. This is certainly an abridgement, and is it right to adopt this Resolution? It certainly seems as if Congress had not given this subject a proper consideration. Mr. Scovel referred to the rebellion and the death of Mr. Lincoln. Slavery had been abolished, but the spirit of slavery still exists, and even now former slaveowners pay ten dollars for negroes as they run, with the hope that slavery will be reestablished. The decla* Trenton State Gazette (NJ), Sept. 12, 1866, 2.

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ration of their independence is a glittering generality when massacres are perpetrated in New Orleans under the shadow of executive authority. Under the Constitution, the South was formally entitled to count a negro as three-­fifths of a man, and now we allow them to count as a whole man. He referred to the remarks of Alexander H. Stephens in which he held that Georgia was entitled to her place in the Union, without any concession. We say to them we want you back into the Union, but we want some guarantees. The government of the Southern States were driven out by Sherman’s army. The States recently in rebellion have not guaranteed republican form of governments. How can we remedy the present evils? First, Congress must annul the provisional governments of Andrew Johnson; second, insure universal manhood suffrage—Every step taken by President Johnson, proves that he considers the declaration of independence as a glittering generality. Congress has practically refused to recognize the provisional governments of President Johnson. The Senator from Hunterdon [claims] that this law abridges the right of suffrage. I submit that this is right, Congress should have the paramount power of regulating suffrage and representation in the States. The second section provides that if the negro, North or South, is not allowed to vote, he shall not be used to increase the representatives in Congress. The third section provides that no officer of the rebel government shall hold office in the national government; this is eminently just, and even with this there are sufficient opportunities to allow the rebels to creep into power. The fourth section ensures the validity of the national debt and refuses to pay any debt incurred in the rebellion, or any claim for the emancipation of any slave. The South had been offered compensation for the slaves emancipated but they refused, and now it is but right that compensation should not be allowed. In office or out, he should base his action on the truism, “All men are created equal.” Mr. Winfield said that one year ago an amendment was offered to the Constitution to abolish slavery. I voted for it, and supposed at that time that the adoption of the amendment which was offered as a condition precedent to the restoration of the Union, would end all controversy. South Carolina hastened to adopt it. But to-­day, new conditions are imposed, and the South is told, not until you give new guarantees shall you be admitted to the union. Who will say that next year new conditions will be out. When will we stop? . . . It was said that slavery is dead, but its spirit will live as

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long as demagogism shows itself, either in a Convention at New Orleans or anywhere else. He referred to the remark attributed to Chief Justice Taney, in which he said that the negro had no rights which the white man was bound to respect. This was false. He endorsed the principle that taxation and representation should go hand in hand; the South has the privilege of taxation, but they do not enjoy representation. What is the condition by which these States are to be allowed to be represented, and how were they ever kept out? Mr. Scovel—The States were never out of the Union, but the Governments have been in rebellion and are now kept out. Mr. Winfield—It is impossible to distinguish between a State Government and a State itself. If it is true that the States are or were out of the Union, the war was waged on a lie. President Lincoln throughout his term declared to the South—“lay down your arms and come back.” Congress reiterated this by resolution. The Constitution declares plainly that each House shall judge the qualifications of its members, and yet Congress adopted a joint resolution that both Houses should consent to the admission of any member. Congress declared Tennessee out of the Union, and yet the Senator from Camden made the State ring in advocacy of a Vice President from Tennessee. The Senator from Camden says that Congress has the right to decide upon the republican form of the State governments. It is a known fact that by the Constitution all rights not granted by the United States were reserved to the States or to the people. The Senator from Camden has said that the first thing to do is to annul the Governments authorized by President Johnson. Did the Senator ever learn that President Lincoln instituted this practice and set up a government in Tennessee and sent Andrew Johnson as a Governor? If these Governments are assembled, who is to take hold of it? If there has been any progress made since the last gun was fired, who has made it? And has not Congress (in opposition to the Constitution) opposed the President in all he has attempted to restore the Union? The Senator from Camden complains that the confiscation act has not been enforced. No man has been tried for treason[,] when is a traitor to be punished? Is it when he has been incarcerated, or when he has been tried by a military commission? What does this third section propose? It is to provide for an ex post facto law. The Constitution provides that there shall be no ex post facto law. If to punish a man in person and property he must be indicted by the Grand Jury and found

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guilty by a jury of his peers. It is estimated that the Executive has not made treason odious. Was the Executive to act in a judicial capacity? Who is the head of the Judiciary, and who refuses to try Jefferson Davis, who is now lying in Fortress Monroe? Chief Justice Chase, one of the guiding stars of the Senator from Camden. It might be brought up that Chief Justice Chase proclaimed the right of a State to secede. One thing is certain, no man who entered the rebellion has ever been tried. The first section of the amendment provides that no State shall abridge the privileges of citizens of the United States; and in the first part of the section it provides that all freeborn or naturalized in the United States, are citizens of the United States and of the States in which they reside. It is impossible to avoid that this section is the subversion of the whole principle of our government, and centers in the National government the right of fixing the citizenship of any State. The second section was referred to by the Senator from Hunterdon. Is not the right of every Senator to vote, abridged—abridged, representation shall be abridged—No man who is a citizen but has his right to vote abridged. Is it not abridged to the township in which he lives? Is it not abridged by the sunset law? The hour of adjournment having arrived, the Senate Adjourned. 8 P.M.—Senate met. A message was received from the House stating that that body had ratified the amendment to the Constitution. The resolution was passed after second reading and substituted for the one before the Senate. Mr. Winfield continued his remarks. . . . Mr. Winfield read from the address of the Southern Loyal Convention in which it is stated that “Triumphant Slavery” would pardon its enemies, and yet triumphant, cannot pardon its honorable foes. New Jersey denies the right of the negro to vote. It is asked upon this floor that negro suffrage should be forced upon the South; and at the same time it will force it upon the people of New Jersey. Why not postpone the subject until the people can have a voice in the matter? The resolution was passed after this senate had been elected. What was the necessity of this hasty action? It is a confession of judgement they dare not trust the people. Mr. Scovel said he thought it was not a confession of judgment, but it was a matter of necessity. The issue which we are to try is whether the Government has any control over the States in rebellion, and has not the right to set some guarantees before the South is admitted.

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The decision of Chief Justice Taney is but a step in the whole record of slavery. There never has been a triumph upon the basis of this decision. He read from the decision of the Chief Justice to show that he had declared the negro an outcast and a Pariah. I care not whether the Chief Justice said in so many words that the black man had no right which the white man was bound to respect. Who deprived the ten Southern States of their right of representation? They deprived themselves of it. The spirit of the rebellion is as bitter as in 1860. It becomes us to ask some guarantee. It does not prevent any loyal man from taking his seat. This amendment asks them to come back the same as they always were. I am for negro suffrage. The black man who went to the war and took my place is a better man than those with a black heart and white face. The Senator from Hudson says that President Johnson is following the same course laid down by President Lincoln. Would President Lincoln have sent a dispatch to Andrew J. Herron that Andrew Johnson did? I have seen the letter from Andrew Johnson to A.J. Herron, and from this letter sprung the feeling which incited the massacre at New Orleans. He did not agree with Thaddeus Stevens, that the States were in a territorial condition. The speaker read from the Constitution to show that the government had the right to guarantee a republican form of government. Is Andrew Johnson the government? No, sir. It is his duty to see that the laws are executed, not to make them. We have disorganized governments in the South, with the spirit of rebellion as rampant as ever. It is a question that appeals to the people of the country. Let that appeal be heard. We ask that this amendment should be adopted, and that we should say that if the negro cannot vote, no one shall vote for him. The cause that we represent must go on, and woe be to him who opposes it. . . . Mr. Little moved that this amendment be postponed until the next session of the Legislature. . . . The motion to postpone was lost—11 to 10. A strict party vote. The resolutions were then ordered to a third reading; and under a suspension of the rules were taken up and passed—11 to 10. ... Assembly. ... The next business being to take up the Joint Resolution ratifying the Constitutional Amendment. Mr. R. H.

Wilson moved that it be postponed. He contended that the amendment should be referred to the people of the several States. When this Legislature was elected by the people, no such subject had been hatched in Congress. He did not claim to know whether his constituents were in favor of or opposed to this measure because they had no opportunity of expressing themselves on the subject. If we proceed to act upon our own judgment on the matter, the amendment would become law no sooner. No member could stand up and say he represented the opinion of his constituents on this subject. Mr. White moved to adjourn. Lost. Mr. Wilson’s motion to postpone was not agreed to. The Joint Resolution was then read a third time and passed by the following vote: Ayes . . . 34. Nays . . . 24. The announcement of this vote was received with applause.

24 Speech of Sen. Henry Wilson (R-­MA), Anderson, IN September 22, 1866*

[W]e are told that if we† do triumph this autumn—as we surely shall—we are told by the President, even in his speech on his way home, that we may have civil war. Montgomery Blair went into Maine this autumn and told the people of that State—a people who had sent seventy thousand soldiers to fight the battles of the country, a State that had buried eight or nine thousand of her young men—that we were plunging into civil war; that we might have two Congresses; and he told the people of that gallant State that if they did not support the President the country would be plunged into civil war. He put it as a threat. The people of Maine understood it as a threat. They scorned and defied him and his threat. They voted as they had fought during the war; and they sent Montgomery Blair back to Washington with a message to his master that the people of Maine

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* Reported in Cincinnati Commercial and reprinted in Speeches of the Campaign of 1866, 34. † [That is, Republicans. —Ed.]

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would begin no conflict; that if they were voted down, they would submit to the laws of the country, to the expression of popular will; but that if anybody raised the standard of revolt, be he President or whom he might, the people of Maine would be the last to come out of it. I tell you gentlemen, what I know to be true, that men like Montgomery Blair, and like Frank Blair, intend this if they have the power. Garrett Davis laid it out in the Senate during the session. He told us, on the floor of the American Senate, that if he had the power, if he were President, he would say to these men who had been elected in the rebel States, “Come to Washington,” and would ask the men in the North who were willing to act with them to make a congress, and he would recognize that as the Congress of the United States, by the living God. I tell you that is the policy of this class of men. It is what the President means when he talks about Congress being a body of men unconstitutional and unlawful, hanging on the verge of the Government! . . . I tell you, gentlemen, that language has a purpose. That purpose is that if they can get a majority in Congress, made up of rebels, unrepentant, unpardoned rebels and their sympathizers here in the North who are willing to act with them, they intend to make a Congress of these persons and rule out the legitimate Congress of the United States, and then maintain their authority with the army of the United States. I say to you to-­day gentlemen, that the only security this nation has for peace of the country, for the future of the country, is to stand by the position taken by the Thirty-­Ninth Congress, and to elect to Congress a majority who are true to their country. The Thirty-­Ninth Congress has placed before the country this grand constitutional amendment. That is one of the noblest propositions ever submitted to any people in any age or in any land. Let us look at it for a few moments, and I will be very brief upon these points. This constitutional amendment submitted by the Thirty-­Ninth Congress to the American people, adopted already by some of the States, and which will be adopted, I believe, by all the loyal States, and then adhered to till it becomes a part of the Constitution of the United States—this amendment proposes to define, and settle forever in America who shall be a citizen of the United States. You know there have been in the past, there are now, differences of opinion among our people in regard to what constitutes a citizen of the United States. Some statesmen have maintained—eminent statesmen, too—that we had no such thing as a citizen of the United States; that we were citizens of the States,

but not citizens of the United States. This amendment proposes that all persons born in the United States not owing allegiance to any other power, and all persons naturalized in the United States, shall be citizens of the United States, and of the States wherein they reside. It is proposed to put into the Constitution of the country, beyond the right of legislation, or decisions of Supreme Courts, or decisions of State courts, the grand doctrine that every man born in the country, owing allegiance nowhere else, is a citizen of the United States and of the State in which he may choose to reside. And there is another glorious provision—I think the noblest of them all—that no State shall make any law, or enforce any law impairing the rights or privileges of a citizen of the United States, and that all citizens every-­ where shall be under the equal protection of the law. That provision was introduced into Congress by John A. Bingham, of Ohio, one of the ablest, truest and best men in the Congress of the United States, and an honor to the State of Ohio. Then comes this great provision for the equality of representation. Let me say to you, gentlemen, that the adoption of that constitutional amendment adds forty-­ six to the representation of the loyal States of the North in the Electoral College and in the House of Representatives; that it puts the loyal States and the people of the loyal States on an equality with the people of the disloyal States. Did your soldiers of Indiana fight four years to give the rebels twice the power they had themselves? . . . I tell you, gentlemen, that this constitutional amendment giving a white man here in the North just the same power as a white man in the South—this proposition to give men who have the right of suffrage the power to govern the country—is a proposition that ought to be sustained by the people; and adhered to till it becomes a part of the Constitution of the country.

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25 Speech of Sen. John Sherman (R-­OH), Cincinnati, OH

26 Speech of Gen. Benjamin Butler, Candidate for House of Representatives from Massachusetts, Toledo, OH

September 28, 1866*

October 2, 1866†

We adopted the constitutional amendment reported first by the Committee of Reconstruction, considerably modified by the Senate of the United States, and it has finally passed. And I say to you now, that a more liberal and conservative party of gentlemen never assembled to legislate under like circumstances. What are the features of that amendment? Everything that was radical that he objected to—I believe the President does not like that name—was stricken out. The first section was an embodiment of the Civil Rights Bill, namely; that every body—man, woman and child—without regard to color, should have equal rights before the law; that is all there is in it; that every body born in this country or naturalized by our laws should stand equal before the laws—should have the right to go from county to county, and from State to State, to make contracts, to sue and be sued, to contract and be contracted with; that is the sum and substance of the first clause. Who opposes that? General Gordon Granger, at what I call a “rump” Convention at Cleveland, said that all the Southern States except two have agreed to that. Then what is the objection to putting it in the Constitution? But they have not, and they won’t agree to it; and we should be dead to every sense of honor, and blind to every dictate of manly principle, if we leave the black race to be lorded over and governed by those unconstructed rebels of the South. We are bound by every obligation, by their service on the battlefield, by their heroes who are buried in our cause, by their patriotism in the hours that tried our country, we are bound to protect them and all their natural rights. [Tremendous ­applause.]

Congress, after making full inquiry, and being moved by a spirit of magnanimity, such as never before was exhibited toward rebels, offered that these rebels, these camps of paroled prisoners of war, might be re-­instated in the Union: might have their property back; might have a share in the Government, provided they agreed to amend the Constitution in certain important particulars. The first was that every citizen of the United States should have equal rights with every other citizen of the United States, in every State. Why was this necessary? It was because the President, in vetoing the Civil Rights Bill, said that it was unconstitutional to pass a law that every citizen of the United States should have equal rights with every other citizen in every state of the Union. To render that certain, which we all supported up to that hour was certain, Congress said: “Well, we will put it in the Constitution so it shall be there forever.” [A voice, “That’s the place to have it.”] Just exactly. The next thing was the subject of representation. Under the old agreement in the Constitution, the master was allowed to count three-­fifths of his slaves in representation. That was one of his rights. But one of his obligations was that he was to pay three-­fifths of the taxes for them. When emancipation took effect, and there were no more slaves, then the Negroes stood to be counted like other citizens; and if there were no changes made in the Constitution, and these slave States were allowed to come back, then the masters would represent not only three-­fifths of the negroes, but five-­fifths—two-­fifths more than they did before, Nay, more: the negro having become a citizen, and being counted as such, the taxes assessed must be paid by himself, and the master † Reported in Cincinnati Commercial and reprinted in Speeches of the Campaign of 1866, 41. [Butler was elected to the House in 1866 and was selected as one of the House managers for the impeachment of President Andrew Johnson. —Ed.]

* Reported in Cincinnati Commercial and reprinted in Speeches of the Campaign of 1866, 39. 276

B. Ratification, doc. 28

would shirk three-­fifths of the taxation; so that if we did not make the change in the Constitution the masters would gain two-­fifths in representation and three-­fifths in taxation. Now what is the practical effect of that? It would give it to the master in South Carolina, where there are about the proportion of 250,000 white men to 350,000 black men, from two and a fourth to two and a half more power than you in Ohio have; so that South Carolina, by going out of the Union, if allowed to come back under the Johnsonian plan of restoration, without any amendment to the Constitution, will have gained, by her rebellion, two and one-­fourth times as much political power than she had before over the man who whipped her back, and have reduced taxation. Now I put it to any man of fair judgment to see whether it was not right that there should be some guarantee that the parole prisoners, when received back, should not be the gainers by the rebellion? It would seem to the judgment of all good men that nobody could object to that; but unfortunately the South has been taught that the President would stand by them in all objections which they may bring to any plan of reconstruction which Congress shall propose. What was the next thing we asked of them? That hereafter no man who had perjured himself by swearing to support the Constitution of the United States, and then abjuring it, should ever have a chance to perjure himself again. Most, if not all of us, think this is too lenient. Let us see what this means. All of you that have fought against the union: all of you that have starved prisoners in Belle Isle, Libby, Salisbury, may come back and take a share in the Government with us, except those who have heretofore held office.

the American Anti-­Slavery Society, he submitted the following resolution, which was received with applause, and adopted nemine contradicente: Resolved, That we demand of Congress, as clearly within its constitutional authority, to secure, by appropriate legislation, his political rights, especially the right of suffrage, to every citizen of the United States. [Applause.] We shall not enter into a protracted argument in order to show the false logic, and anti-­American doctrine, involved in this resolution, but shall simply state our objections to it, in the shape of facts, which we deem to be altogether incontrovertible. 1. The subject of regulating suffrage, like that of education, is one of the reserved rights of the States, over which, according to the express provisions of the Federal Constitution, Congress has no control. By the 9th amendment to the Constitution, “the enumeration” in that document “of certain rights, shall not be construed to deny or disparage others retained by the people.” By the 10th amendment, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.” Among the seventeen powers delegated by the States, under the Constitution, to Congress, the power of regulating suffrage is not enumerated, nor does the Constitution prohibit the exercise of it to the States. It is therefore reserved to the States, and has always been exercised by them without Federal ­interference.

28 Speech of Wendell Phillips on the Fourteenth Amendment, Cooper Institute

27 “A Little More about Suffrage,” New Orleans Times

October 25, 1866*

October 15, 1866, p. 2

Well, the Republican Party is mighty. The States that have spoken have spoken almost with a voice of unanimous approval, and the States that are to speak, in my

Wendell Phillips, Esq., a lobby member of Congress, and who has never regarded the Constitution of the United States as coming up to the demands of the age, has become the propagandist of quite a Utopian theory on the subject of suffrage. At the last anniversary meeting of

* Reported in Cincinnati Commercial and reprinted in Speeches of the Campaign of 1866, 55. 277

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opinion, will speak more unanimously still. [Cheers.] So far as the mere voices of the masses go, so far as the endorsement of what has appeared to be the spirit of Congress goes, we have strength enough and our only need is to ask what is the meaning of this Republican victory? How large and how great a step in this kind of reconstruction which I have described, does Republican success as such guaranty to us? Millions upon millions of popular votes! What real national strength, in this struggle with the nation’s undefeated foe, does this insure us? Well, look at it! Congress separates on a plan which it calls the amendment of the Constitution; and when Congress separates, it tells the world that this is but a portion, an installment of its plan of reconstruction; that even swallowed the whole of it, it has no pledge to give to the territories South that they shall be formed into States, and so admitted into the union. But no sooner have the parties rallied and marshaled for the canvass, than the National Republican Committee, and the great State committees of that party, and the leading journals that undertake to speak for it unanimously, say to us; “If the South accepts these amendments, she may count on an instant admission.” Republican success in this canvass means the fulfillment of the pledge upon which it has been conducted, and that pledge, officially judged by its leading committees and its great journals, is that, the amendment ratified, the South takes her place in the Senate and House of Representatives. So the Republicans offer; so the spectators interpret. The New York Herald, an astute observer, says to the South: “Accept; accept now, before the promise is withdrawn.” Republican success, therefore, means—if you can interpret it to-­day—in the first place, that south of Mason and Dixon’s Line is South Carolina. I deny it. The territory of South Carolina is there; the territory of Virginia is there, and a certain person quitting his proper functions, and usurping the Congressional powers, has undertaken to set up a pasteboard government, which he calls the State of South Carolina. But Radicalism and the North ignore it. It knows no result of Presidential usurpation. [Applause.] The South gains from what point? When Republican committees and the Republican journals talk of the State of Virginia, there is none. In due time, Congress will see fit to initiate measures to have the Territories of Virginia decreed a State. [Applause.] . . . I would not admit a single Southern State till the black man has a vote. [Cheers.] ...

This amendment, which we are told by the official voice—and that is the only one to which we can listen— is to be a bridge to restore the South to its old place in the Government, undertakes, in the first place, to engraft into the Constitution of the United States a new feature. As the nineteenth century opens before us, the largest and most progressive minds of both continents are undertaking to enlarge the political arena, while both sections of the United States stand ready to-­day to expand with the opening demands of the nineteenth century. Yes, the timid and cowardly policy of a party bound only upon its own perpetuation undertakes to engraft into that Constitution the word “male,” confining us, in the onward march of the suffrage question, to one sex. I repudiate all limitations. [Applause.] Our fathers left it uncommitted to face the demands of the opening century. I would leave it uncommitted. The amendment, secondly, undertakes to ignore entirely the rights of the negro to the help of the Government. To-­day we have the right to protect him, and the power. The amendment surrenders both into the hands of the dominant race of the Southern Territories. We have to-­day the right, gained by battle, and we have the power, having the whole government machinery in our hands. We are pledged, in honor, and by the necessities of a five years’ war, to exercise both the right and the power. The Republican party undertakes to give up the right and the power, and trust to the contingencies of a possible motive. They call it a compromise. Compromise is a respectable word. . . . We have elevated a swindle into a compromise and dignified it with the name. ... The constitutional amendment, so far as the negro is concerned, is a swindle, and don’t delude anyone with the respectable but misused term of “compromise.” The absent, the unheard, the disfranchised race is sacrificed between the upper and nether millstone of rebellion, while the Republican party knowingly, systematically and persistently sacrifice it to preserve their political supremacy. . . . The constitutional amendment is not only a swindle on the negro, but it is giving us back that same political perambulation that ruled this country essentially from 1801 to 1860. Put your foot upon it; reject it; send it drifting with a hundred other schemes of constitutional amendments, and send back Congress into its halls with orders to admit no Southern territory at present, nor perhaps till long after the 4th of March, 1869. [Applause.] 278

B. Ratification, doc. 29

I don’t believe in reconstruction. Streets running with blood; the capital in exile; free speech suicidal; the South repudiating her old maxims; she is to be rooted up, to be made over, to be smothered, to be outgrown, to be covered over with a rich and prosperous growth of northern immigration, brains and money, before you can begin even to rebuild the States. [Cheers.] ... No more compromises of the Constitution, no more surrender of the omnipotence of the war power, until Louisiana and South Carolina are made over into the likeness of New England, and run, like kindred drops, indistinguishable into one. [Applause.] And in order to do that, the very first task I would set the reassembled Congress, before they look at the amendment or utter the word reconstruction, is to impeach the rebel at the White House. [Loud cheers.] . . . I say, therefore, impeach the President; and while he is on trial sequester him. What is the advantage? Then we run the machine. [Laughter.] Then, the undivided North—the loyal nation—managing its own Government, that reconstruction which I endeavored to describe to you commences at once. The moment that rebel hand leaves the helm, New Orleans is safe for New York capital and New York men. [Applause.] The moment the Senate of the United States breathes the breath of its own spirit into the Government, Massachusetts may remodel Louisiana—not till then. ... In ordinary times we should be obliged to bear with Andy Johnson till the 4th of March, 1869. But his treachery, his collusion with rebels, his resistance to the laws of Congress, the blood of New Orleans upon his conscience, his sins against the whole essence and spirit of the hour enable us to remove him. [Applause.] . . . No postponement until the 4th day of March, 1869. The fight begins on the 5th day of December, 1866, and from that hour the machine is to be exclusively ours. [Cheers.]

29 Oregon, Legislative Debate and Ratification September 14 and 19, 1866

Senate, September 14, 1866 *

Senate Joint Resolution No. 3, to ratify the Constitutional amendment, came up at the hour agreed on yesterday, 10 1/2 a.m. Mr. Miller moved to strike out all after the words “Section 2d.” Mr. President said the Senate could not amend or alter the form of the amendment—must ratify or reject it as it came from Congress. He ruled the motion out of order. Mr. Johnson moved to amend the resolution. Mr. Crawford moved to amend the resolution by striking out the ratifying words and substituting therefore a proposition to submit the amendment to the people of Oregon. Mr. Johnson raised the point whether the amendment could be disposed of by reference to the people. It is submitted to the Legislature, and the only action the Legislature can take in relation to it, is either to ratify or to reject. ... The previous question (on Mr. Crawford’s motion), was ordered and resulted in [yeas 8, nays 10]. So the motion lost. The question then recurred upon the adoption of the resolution. ... Mr. Jeffries—I suppose, to use a common phrase, the vote on this question is already “cut and dried,” but I desire to make a few remarks on it, expressive of the views of myself and, as I believe, of my constituents. . . . When this amendment was submitted eleven States were not represented. Their representatives were at the capital. They came up by the will of the Chief Executive. While eleven States were out, two-­thirds present proposed this amendment. There would have been an excuse for this, were those States denied representation * Oregonian (Portland, OR), Sept. 17, 1866, 1.

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by their own fault. It may be answered, they had been in rebellion. That fact does not invalidate their rights under the Constitution. The law lives, rights live. They did not rebel; but when driven back, the States were entitled again to that representation which is guaranteed by the Constitution. While they are kept out against their will, this amendment, or any other legislation affecting them so radically, is illegal and void. The amendments are objectionable in themselves. They propose a radical change. They contemplate an equalization of the races. An inferior race—stamped so by the Creator— cannot be elevated. The superior race may be degraded by the contact but the inferior cannot be elevated. [The speaker quoted from the first section, which see]. The Supreme Court in the Dred Scott case has decided that the negro does not come within the meaning of the term citizen. This amendment makes them citizens. It will inflict an injury on Southern people which is an equal injury to the people of Oregon. Here it will raise Chinamen and Indians to an equality with whites. ... Mr. Cranston. . . . It is plain the States had ceased to exist as States of the Union. If so, Congress had the right as the legislative branch of the government to say how and when they may resume their relations. So much for the constitutionality of the amendment. But the war emancipated 4,000,000 of negroes. They are to be provided for. The amendment undertakes to say that every man’s rights shall be respected. Justice demands this. Every man should have the power to enforce his rights by appeal to the Courts. To deny this is to deny the right God gave a man when he created him. If we deny this right to the negro, we reduce him to bondage and degradation. If we secure it to him, we elevate him and make him a useful element in our population. As to the question of representation; the Southern States deny to the negro all political power, and yet want to use him as the basis of political power for themselves. They formerly used three-­fifths of them for that purpose and now want to use all of them. The amendment secures perfect equality of representation to white men in all the States. If one class is denied franchise, another class shall not use them as a basis for political power. ... Mr. Houston. . . . The first clause of this amendment proposes to make citizens of negroes and Chinamen. If ratified, the amendment nullifies the 35th section of the first article of the Constitution of Oregon. The old Senators appear to be in great haste about this matter. The

reason is apparent. The people are decidedly against them. The expectation that this amendment would be proposed was sufficient to oust the Radical majority in this State from nearly fourteen hundred to seventy-­one. There is a disposition on the part of the people to oust those Senators who are misrepresenting them. . . . Now it is sought to place the inferior races upon an equality with the superior; to make a mongrel people; to place a negro or greasy Chinaman on the same level with Grant the hero and Johnson the incorruptible Chief Magistrate. We are unable to see the advantage or policy of this measure. ... I will vote against the amendment now and hope to do it again in the future. If it is [ ] ratified by this Legislature, I shall have the pleasure of undoing in this Senate, two years hence, what will be done to-­day.* Mr. Cartwright. . . . The principle objection made to the representation clause is that it forces negro suffrage upon the South or the alternative of a reduced representation. Well, your President Johnson favored that. But the matter of suffrage is left to each State. If they want negro suffrage they shall have it; if not, they won’t have it. That is not our concern. ... Mr. Dolph had hoped the amendment would pass without discussion. It had been pending before the people a considerable time. . . . It is urged that legislation when eleven States are out of the Union is not legal. I do not care to discuss the technical question whether the States were in or out of the Union. The States rebelled; we unsheathed the sword to preserve the Government and should not sheathe it again until the authority of the United States is supreme over all the people and paramount to State governments. ... It is the law of all nations that persons born or naturalized under a government is a citizen of that government. The Dred Scott decision contains the first enunciation of a contrary doctrine. While our white citizens were protected in all foreign countries, it was notorious that citizens were frequently not protected in the Southern States. There was no freedom of speech; no

280

* [In fact, although Oregon proceeded to ratify the amendment, two years later, the state legislature voted to rescind the earlier ratification. See Oregon Senate Journal 273 (1868); Oregon House Journal 273 (1868). The vote had no effect on the already-­declared-­ratified amendment. —Ed.]

B. Ratification, doc. 30

personal liberty; no security for civil rights. The negroes are now free, but laws are already passed in those States which interfere with and deprive them of natural rights. The United States is pledged to protect them. The States will not do it. Loyal whites need protection. They were true to the government and know what it cost to be loyal. They were conscripted, hunted, shot down, their property confiscated. Through all they were true, and the government owes it to them to secure them in their rights. It is due them that no State shall be permitted to make laws abridging their privileges or immunities as citizens. ... The question being upon the adoption of the resolution to ratify the Constitutional Amendment, the ayes and nays resulted as follows: [Ayes 13, Nays 9] So the resolution was adopted.

On motion of Mr. Upton permission granted to Mr. Fondray to record his name hereafter on this question. He will vote in the negative, making 22 nays. ... On motion at 9:30 p.m. adjourned, amid shouts of applause from the galleries and congratulations on the floor.

30 “A Clear Issue,” Harper’s Weekly October 6, 1866, vol. 10, p. 627

House, September 19, 1866 *

Mr. Olney, Chairman of the Judiciary Committee to whom had been referred the Senate joint resolution to ratify the Amendment to the United States Constitution, reported it back, recommending its adoption. He said it had been agreed by the two sides of the House that this measure should be fairly disposed of today. He had no speech to make on the question. Thought every man had made up his mind about it, and that it had been thoroughly discussed by the public press and elsewhere. He was willing, however, to spend the day in listening to arguments from those who wish to discuss the matter. ... Afternoon. House met pursuant to adjournment. The galleries and vacant space without the bar were crowded with an animated audience. Messrs. Whiteaker and Cox in opposition to, and Messrs. Brents, Chenoweth and Herman, in favor of the resolution, addressed the House at length. Evening. On reconvening at 7 o’clock p.m. the galleries were crowded as before. Messrs. Helm, Withers and Humeson continued the discussion in opposition to the proposition, and Mr. Starkweather in its favor. ... The main question being put resulted as follows: [Ayes 25, Nays 21] * Oregonian (Portland, OR), Sept. 21, 1866, 2.

281

The Address of the National Union Committee states briefly, precisely, and forcibly the exact issue. It is sharply defined, and there can be no misapprehension. It is the issue set forth at Syracuse, at the Loyal Southern Convention in Philadelphia, and by every Union orator and journal in the country. The foolish cry that nobody but the President and the Democrats know what they want has already died away. Vermont and Maine know distinctly what they wish. Illinois and Pennsylvania and Ohio and New York are not in the least doubt. The present issue is that the Constitutional Amendment, which the President himself formerly warmly favored, shall be adopted by any late insurgent State before it resumes its place in Congress. This Amendment simply fixes in the organic law the legitimate results of the war. First, It defines and defends citizenship in the United States and its rights. Second, It bases representation upon the voting population; so that if any State chooses to keep a portion of its population uneducated, debased, and powerless, it shall not use that population to balance the intelligent and thrifty of other States; and also, that the change produced by emancipation in the original constitutional adjustment or representation may be rectified. Third, Whoever has held office by the tensure of an oath to the Constitution of the United States, which oath he has violated in order to plot and act treason against the Government, shall be disabled from office until Congress relieves the disability. Fourth, The national debt shall never be repudiated, and the rebel debt shall never be paid by any State, nor any payment be made for emancipated slaves.

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Fifth, Congress shall have power to enforce these guarantees by appropriate legislation. This is the question before the people. Shall it be the country and mankind and equal liberty and steady loyalty which have gained by our victory, or shall it be the rebellion which, defeated in the field, outwits us in the surrender? And this is the question which the people understand, and have fully resolved to settle once and for all.

but they will not propose the rejection of the amendments on the denial of the right to participate in originating them, but will consider the substance of the amendments submitted. The first section proposes to deprive the states of the right which they have possessed since the revolution of 1776 to determine what shall constitute citizenship of a State, and to transfer that right to the Federal Government. Its object is, provided the section shall become a part of the Constitution, under the color of a generality, to declare negroes to be citizens of the United States, and as such entitled to all “the privileges and immunities” of white citizens; in these privileges would be embraced the exercise of suffrage at the polls, participation in the jury duty in all cases, bearing arms in the militia, and other matters, which need not here be enumerated. It is unnecessary to appeal to the fact that in most of the original free States, negroes have been by law, and in all of them by immemorial usage, excluded from these “privileges and immunities,” now sought to be forced on the Southern States, to show that the amendment proposed in this section contemplates and intends a violation not only of justice, but of the common instincts of our nature. ... There is scarcely any limit to the power sought to be transferred by this section from the States to the United States. Congress might declare almost any right or franchise whatever, to be the privilege or immunity of a citizen of the United States and it would immediately attach to every citizen in every State, whether white man or descendant of African. To estimate the comprehensive scope of the power herein sought for Congress— that body might declare miscegenation a “privilege or immunity.” The second section is in some degree the counterpart of the first and a complement of the first, in its object to force negro suffrage on the Southern States. ... Let these proposed amendments, with this section,† be engrafted into the Constitution, and it is a virtual repeal of that Article which declares, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” As the first sections embrace every thing touching citizenship, what right, what franchise can the citizens possess that may not be dis-

31 Texas, House Report and Rejection of Proposed Fourteenth Amendment October 13, 1866*

Mr. Smith of Harris made the following report from Committee on Federal relations: ... Hon. N.M. Burford, Speaker of the House of Representatives: Sir: The Committee on Federal Relations, to which was referred the communication of the Hon. Wm. H. Seward, Secretary of State for the United States to his Excellency the Governor of the State of Texas, dated June 16, 1866, covering a resolution of Congress proposing to the Legislatures of the several States a fourteenth article to the Constitution of the United States, have the honor to report as follows: The amendment to the Constitution proposed by this joint resolution as Article XIV is presented to the Legislature of Texas for its action thereon, under Article V., of that Constitution. This Article V., providing the mode of making amendments to that instrument, contemplates the participation by all the States through their representatives in Congress, in proposing amendments. As representatives from nearly one-­third of the States were excluded from the Congress proposing amendments, the constitutional requirement was not complied with; it was violated in letter and spirit; and the proposing of these amendments to States which were excluded from all participation in their initiation in Congress, is a nullity. Your committee might rest the whole matter here, * Texas House Journal 577–84 (1866).

282

† [That is, the fifth section. —Ed.]

B. Ratification, doc. 32

posed of, destroyed, abrogated under this “appropriate legislation?” ... [I]f we reject their amendments, if we refuse willingly to transfer our State Government and our representative rights in the electoral colleges and in Congress, from the great master race of the races constituting the Caucasian family of nations, to “Africans and descendants of Africans;” if amid the ruins of our property, we stand undaunted, unappalled by the dangers which gird us, and refuse willingly to sacrifice for an empty shadow, delusively promising present quiet, the rights of the State, whose representatives we are, the priceless rights of American citizenship, rights declared in the Constitution itself to be inalienable, we shall preserve our national spirit as an integral portion of the American people, we shall retain our own self-­respect, we shall command the respect of the civilized world and of our enemies; we shall have the honorable sympathies of the great masses and of the good men of the Northern States; and when the passions of the day are past, they will do us justice, and thank us for the stand we here make. Cowardice, baseness of spirit never wins; justice is often tardy, but eventually triumphs; the people of other States will eventually say of much abused Texas, her people are worthy. Your committee are then of opinion that submitting to our situation in good faith, having frankly yielded up the issues decided in the late war, with a full purpose to yield an honest obedience to the laws now in force and to those which may hereafter be established, however distasteful to us, relying on the eventual justice of the great American people, it is our bounden duty to reject the amendments to the Constitution of the United States, proposed as Article XIV in the Joint Resolution of Congress; and they have accordingly reported the following resolution: ... Be it resolved, That the Legislature of the State of Texas do not ratify the amendments to the Constitution of the United States, proposed as Article XIV in the Joint Resolution of the Congress of the United States. ... Mr. Shaw moved the adoption of the Report. [Ayes 70, Nays 5] Report adopted.

32 Texas, Senate Report and Rejection of Proposed Fourteenth Amendment October 22, 1866*

Senator Cook, chairman of the Committee on Federal Relations, submitted the following report: Hon. Geo. W. Jones, President of the Senate: The Committee on Federal Relations, to whom was submitted the joint resolution from the House in regard to the proposed amendments to the Constitution of the United States, have had the same under consideration, and the subject has had that grave and serious deliberation which its importance so well merits. For forty years the question of slavery and the equally exciting question of the right of a sovereign State to secede from the Union, have agitated the public mind, and have entered as elements into the discussion of the politics of the country. From time to time these questions have threatened the peace and harmony of the Republic, and the disastrous consequences which we have lived to witness and to feel, have been postponed by concessions and compromises which have, however, proven nothing more than temporary expedients to put off and delay the final catastrophe which culminated in the submission of these exciting questions to the bloody arbitrament of the sword. The result of that arbitration is known and its award has been accepted. Our armies surrendered upon the liberal terms offered by General Grant; in which our soldiers were assured that upon their laying down their arms and returning home in peace, they should not be molested so long as they obeyed the laws in force in the several States of their residence. Believing in the good faith of the Federal Government our leaders acceded to these terms, and all our forces were disbanded. The President of the United States next issued his proclamation of amnesty, and furthermore called upon the people of the Southern States to alter and amend their several constitutions so as to conform them to the accomplished facts of the war, whereby the organic law should itself renounce the right of secession and acknowledge the freedom of the negro race. These requirements being 283

* Texas Senate Journal 417–23 (1866).

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complied with we were assured that we would be restored to harmonious relations with the other States of the Federal Union. The Southern States, still confiding in the good faith of their Northern brethren, acceded also to these terms. But notwithstanding that we thus surrendered every issue involved in the late war, and thereby removed every obstacle to the restoration of accord and harmony, the Southern States are still denied participation in the government and are now required before they can be again recognized as integral portions of the Union, or entitled to the protection of the laws and the Constitution thereof to adopt certain amendments to the Constitution of the United States. It cannot be doubted but that these amendments, if adopted by the requisite number of States will be obligatory upon us; but the question before your committee is, shall Texas adopt them as her voluntary act. It is a question of grave importance, and it has not escaped the minds of your committee that its determination may involve for weal or woe very much of our future history. To tamper with the Constitution bequeathed to us by our Fathers may be well regarded at all times as a dangerous and unprofitable work. For three-­quarters of a century the people of the United States have lived under it, and have tried its virtues both in peace and war. Under its benign influence we have from a few weak colonies by the sea shore, grown and strengthened and overspread and subdued a vast continent from the savageness of primeval nature, and have become a great and prosperous nation, exciting the wonder and admiration of the civilized world. We dare say that the Southern people were never at any time hostile to the Constitution of the United States, nor to the government when administered in conformity to its letter and spirit; the best proof of which is to be found in the fact that the Constitution of the late Confederate States (excepting in some immaterial features) was the counterpart of the Federal Constitution. No, the Southern people would never have appealed to arms if they had not found their rights and institutions assailed under a perversion of the forms of that sacred instrument. The limits of this report will not permit of the discussion of each separate item of the proposed amendment. But it has occurred to your committee that these amendments originated in and that they proceed upon the assumption of the truth of two propositions which, in point of fact, are not true, but false. The first assumed fact is that the Southern people are

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hostile in their feelings, and that their participancy in the affairs of the government upon the existing basis of representation will be fraught with evil and dangerous to the peace of the country. The second proposition assumed to be true is, that there is a bitter hostility, an irreconcilable hatred of the negroes, which has its seat in the Southern mind, and which will spend its fury upon the head of the devoted African, unless the Federal Government interposes in his behalf. The Southern people have never, at any time, deceived their Northern brethren. We have from the very foundation of the Government dealt with them openly. There is nothing in all the antecedents of the Southern people which go to prove them capable of duplicity or treachery. We have in times past discussed the questions of slavery and secession openly and boldly. Our representatives in Congress declared from time to time the intention of the Southern States to secede from the Union. Conventions were openly held in the South. Delegates from the South in Congress openly withdrew from that body. There was nothing hidden—nothing secret in the movements of the people or their leaders. We were open, frank and candid from beginning to end. In the same spirit of candor we accepted the issues of the war. We declared our submission to the Federal Government; our full and lasting surrender of secession and slavery, and our wish to “let the dead bury its dead,” and to live in future accord with those who were our late foes upon the tented field. The President received and trusted us in this spirit; but the Congress denied our peaceful purposes, distrusted our protestations, and professed to believe us still foes to the Government— secret foes who were only waiting another chance to whelm the country into the abyss of revolution. Hence we have been and still are denied our rights—denied any voice in the Government, and treated as conquered enemies. In all this wrong and injustice has been done the South. Our people are not unfriendly to the Government; they are not dealing in falsehoods: they are not seeking to destroy the Republic; nor are they waiting for future opportunities of revenge. Your committee solemnly believe that there are not 500 men in the whole State of Texas who would now take up arms against the United States; whereas there are thousands who would flock to its standard to repel a foreign enemy from its shores. Again, the second assumed proposition upon which these amendments are predicated, is our implacable hatred of the negro. Now we all are fully aware that the

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state of freedom which is thrust upon our late slaves, is not of their own seeking. There originated during the contest no insurrections. They did not abandon their masters, except when induced so to do by the Northern soldiers. They worked quietly on their masters’ plantations during the whole Period that the country was resounding with the shock of arms. They have in Texas at least, as a general thing, behaved well since their emancipation. They were the playmates of our infancy, and the companions of our boyhood, and the domestic servitors of our homes. There exists then no rational ground for the assumption of enmity in the Southern mind against the negro. . . . A freedman who obeys the laws, labors for his support, and accumulates property for the comfort of his old age, will find perfect peace and security in living among the Southern people. True, we do not see fit to clothe the freedman with the elective franchise, for the reason that his moral and intellectual status is not of a growth sufficient to render it either a wise or safe step. But our Constitution guarantees to the negro every other right of citizenship. From this brief review, your committee are of the opinion that there is no reason why we should adopt the constitutional amendments, upon the ground that it is necessary; that the plea of necessity which is urged, is not founded in fact, but has its origin in two assumed propositions, both of which are erroneous. As to the proposed amendments, they have been so thoroughly sifted by the leading minds of the Conservative party, both North and South, that it is not proposed to enter into any critical analysis of their merits or demerits, but simply allude to, some leading features. Were we to adopt these amendments, we set our soul to the disenfranchisement of great numbers of our wisest, best and most useful men. The 3d Section is sweeping in its operation. Few, indeed, out of the vast numbers, who would fall under the enumerations of this section, but have either “engaged” in rebellion or given “aid and comfort” to the same. Again, in the endeavor to “make treason odious” there is not only a plain-­violation of the 3d item of Section IX., Article I. of the Federal Constitution, but a manifest disregard of the plainest maxims of law and justice. To make a law now, I care not whether it be by an act of Congress or by a constitutional amendment, declaring that those who engaged in the rebellion should hereafter be disfranchised, is clearly ex post facto; because if it be a fact that treason has been committed by the Southern people, it is also a fact that Congress has heretofore defined the offense of treason, and

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provided for its punishment. And ineligibility to office, or the right to vote at an election, is nowhere included in the penalty annexed to treason. To affix these now, therefore, as a part of the pains and penalties of treason, is to provide the punishment after the commission of the offense. If a contest of opinions culminating in a contest of arms is not to be ended when the victory is achieved; if it is necessary that the opposers of the Government, who rushed into the arena of strife, sincerely thinking that they were right and that their cause was a just one, and not from motives of ambition and of cruelty; if the blood that has been spilled and the desolation that has overspread the country, is not sufficient to satisfy the demands of justice, the Constitution and laws have already defined their offence, and through the machinery of the Courts the penalty can be affixed. Once establish this principle, and the Constitution, from a shield intended for the protection of the citizen, becomes a sword that may be employed for his destruction. Because it is plainly assumed that Congress may do that by a Constitutional amendment which it is inhibited from doing in the form of law. ... Again, these proposed amendments clothe Congress with the extraordinary power of declaring who are, and who are not citizens of the United States, and the several States thereof. Except by the process of naturalization, Congress cannot make a citizen. This is a sacred right reserved to the respective States. A man has heretofore been regarded as a citizen of the United States by virtue of his being a citizen of the State of his residence. A citizen of Ohio, or of Texas, is in virtue of that fact a citizen of the United States. And this has been the doctrine which has obtained from the remotest history of the Republic. If the subject is within the control of Congress, it must depend altogether upon the discretion of that body; for certainly the Constitution is as silent as the grave respecting any such powers. Being then within the discretion of Congress, as the amendments propose, it becomes a vast and dangerous power. If it be a fact that for the future no person can be an elector, or hold any office, or vote at any election, or enjoy any of the privileges of citizenship, except at the will of Congress, then in the hands of Congress, which is but the servant of the people, will be concentrated the entire power of the Federal Government. Now, it has not escaped your Committee that these extraordinary powers, wielded by virtue of the 5th

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section of the proposed Article of the amendment, whereby it is declared that “Congress shall have power to enforce, by appropriate legislation, the provisions of this Article,” would utterly subvert the form of Government. What is “appropriate legislation?” The Constitution is silent; therefore, it is left for the Congress to determine. And this determination would be influenced in a greater or less degree by the prejudices and passions of the hour. If it rests with the Congress to declare first, who are citizens, and afterwards, by “appropriate legislation,” to enforce the rights of citizenship, then by virtue of the same authority they can declare that the negro is a citizen, having the right to vote at any election, State or Federal, and by “appropriate legislation,” enforce that right, either by the bayonet or otherwise. If these amendments are adopted it will radically change the form of the Government which we have inherited from our fathers, if it does not in its ultimate consequences destroy our boasted freedom, and extinguish the torch of republican liberty in this Western world. Destroy it here, and

tralize all power in the Federal Congress, making the States mere appendages to a vast oligarchy, at the National Capitol; because, moreover, they call upon us by our voluntary act to disfranchise our noblest, and wisest, and best men, thereby affixing our hands and seals to their condemnation, and declaring by our voices, that they are felons and traitors; and at the same time, and by the same act, placing it in the power of Congress to clothe the negro with the elective franchise; because its adoption involves the loss of our honor as a people, and our self-­respect as individual men; and because we feel and believe that even were the Southern people to adopt these Amendments, it would not hasten the restoration of fraternity and harmony, nor open the doors of Congress to our chosen delegates, the Committee are unanimously of the opinion, that the Senate should concur in the House resolution, and respectfully, but firmly, reject the amendments that are proposed to be made to the Federal Constitution. Believing, as we do, that it is the only course which we can pursue with safety and honor, and believing that we will be sustained by the enlightened verdict of our people at home, as well as of thousands of brethren at the North, and feeling assured that when the jarring discord and stormy passions that now rule in the bosoms of men shall have passed away, with the present actors upon the stage of political life, the judgment of an enlightened posterity will approve our course and applaud our conduct. Respectfully submitted. R. V. Cook, Chairman of Committee on Federal Relations.

“I know not where is that Promethean heat That will its light relume.”

We deplore the fact that our Northern brethren, who are descended from the same ancestry with ourselves; who speak the same language and worship the same God that we do, and who cherish the same glorious national recollections that we cherish, regard us with hostility and distrust; that they doubt our sincerity and question our political integrity. That, not satisfied with our frank surrender of the issues involved in the late unhappy strife, and our anxious desire for peace and harmony, they insist upon our giving other guarantees for the future. Guarantees, the adoption of which, would immolate upon the altar of a doubtful expediency, not only the good of the whole country, but all that we have of honor and self-­respect. For surely, while they might treat us as enemies when we confronted them with arms in our hands, the exercise of magnanimity and clemency, after victory had declared for them, would be the surest way of confirming us as friends. Because, therefore, the adoption of these amendments to the Constitution of the United States are unnecessary, and dangerous to the future peace of the Republic; because they are founded and proceed upon the assumption of two propositions, both of which are believed to be false; because these amendments alter the form and fashion of our Government; because they cen-

... The hour having arrived for the consideration of the special order, viz: the report of the Committee on Federal Relations upon the proposed amendments to the Constitution of the United States, together with joint resolution thereto, the report and resolution were taken up. Resolution read second time, and passed to a third reading. Upon motion of Senator Guinn, rule was suspended, read 3d time, and the yeas and nays being called, passed by the following vote: [Yeas 27, Nays 1]

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33 Vermont, Gov. Paul Dillingham’s Message, Ratification October 12, 1866*

Gentlemen of the Senate and House of Representatives: ... Since my last annual communication to the Legislature, the work of reconstructing and reorganizing the state and local governments, which, for more than four years, had been in rebellion against the federal authority, has largely engaged the attention of the executive and legislative departments of the General Government; and, as is both necessary and wise in a republic in which the citizens are sovereign and the source of all power, this work has commanded the interested and intelligent observation and criticism of the whole people of the country. Unhappily for the best solution of this problem of reorganization, the national executive and the national legislature have not been in accord in their views of the best method of restoring these insurgent communities to their true relations to the federal Government; and the work has thereby been much delayed, the difficulties which environ it have been much increased, and the Southern communities have become much more hostile than at first to the demands of that wise policy which would render “treason odious,” obtain ample security for the future, and enable the Government to redeem every pledge it has made to its creditors, to its friends, and to the race which it has emancipated. The executive branch of the Government, having inaugurated the work of reorganizing the rebellious states without seeking the advice or co-­operation of Congress, has continued to insist upon its exclusive control of the work, and has denied to the legislative branch of the Government any share in the determination of the status of the insurgent communities, or the conditions of their restoration; and while denying to Congress all right to judge of the completeness of this work of reorganization, it has conceded only the right of each House to judge of the elections, returns and qualifica* Vermont Senate Journal 12, 24–29 (1866); Vermont House Journal 61–62, 138–39, 150–52 (1866).

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tions of its own members. This policy assumes that the Executive has the sole right to reconstruct, reorganize and restore to their former condition in the Government, the people, communities and states which have waged a gigantic war against that Government; and it insists, with emphatic iteration, that Congress, by refusing to recognize the executive reconstruction as just, safe, complete and constitutional, and at once admitting to seats in the Senate and House of Representatives persons claiming to be elected by states thus, reorganized, is assuming functions which do not belong to it, infracting the Constitution, and attempting, with a guilt equal to that of the rebellion, to dismember the Union. On the assembling of Congress in December last, and throughout its last session, that body claimed for itself the constitutional right to examine this work of reconstruction, and judge both of its conditions and completeness. After a careful and prolonged investigation, through its joint committee on reconstruction, of the condition of the states lately in rebellion, the disposition of their inhabitants, and the workings and results of the executive method of reorganization, it was fully satisfied that the political and civil power in those states was, in almost every instance, placed in the hands of those who, during the rebellion, were either active in their hostility to the national Government, or gave aid and comfort to its enemies; while it was apparent that, without further conditions than the executive plan proposed, those who had been during the rebellion the bitterest enemies of the national authority, would have the unchecked and entire political control of those states in the future, and would use that control to oppress and put under ban those who have never swerved from their fidelity to the Union. Congress, therefore, wisely in my judgment, declined to treat the states which had confederated in their treason against the Government, as rightfully entitled to immediate representation in the national legislature, or to be released from the control of the federal authority; and this decision was evidently in agreement with the opinions of a large majority of the people who had heartily sustained the Government in its contest with the rebellion. To the reading and thinking people of the nation, who judge by facts and results rather than by the refinements of argument, the riots at Memphis and New Orleans have furnished the most complete and startling evidence of the inherent error of the executive scheme, and have written its condemnation in characters of

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blood. In those riots peaceable citizens, with circumstances of savage atrocity, were cruelly murdered by a mob, incited and led by local officials, and inspired by an illiberal and intense prejudice against an inoffensive race, and by a vengeful hatred of those who dared to claim equal political and civil rights for all men; and these outbreaks have furnished melancholy proof of the danger of committing unrestrained political and civil power to men recently rebels, and are significant commentaries upon that reorganization of which they were the legitimate fruits. Congress, however, did not insist upon its constitutional right to inaugurate the work of reorganizing the governments of the states which had confederated in rebellion, nor did it surrender that right, but in its legislative action it manifested a willingness to suffer the work of the Executive to remain undisturbed, so far as it could do so with due respect to the dignity and safety of the republic, and with a proper regard to the security and protection of the property, liberty and lives of all the people of the United States. After a laborious and extended session and a patient comparison of views, both Houses of Congress agreed, by the necessary two-­thirds vote, to propose to the legislatures of the several states the following amendment to the federal Constitution: . . .* Soon after this proposed amendment was adopted, it was ratified by the legislature of Tennessee, and immediately thereupon the senators and representatives previously chosen by that state, upon taking the oaths prescribed by law, were admitted to seats in the respective Houses of Congress. Texas is the only other state confederated in the rebellion, that has acted upon this amendment. There it was rejected, the legislature directing the committee having it in charge to return it to the Secretary of State. Every other state—except Oregon, whose legislature first ratified and then rejected it—which stood by the Government during the rebellion, whose legislature has been in session since the amendment was proposed, has ratified it; and there is good reason to confidently anticipate that it will be ratified by the number of states necessary to make it a part of the federal Constitution. While this amendment does not contain a single proposition which the Executive has not, either in his * [The text of the Fourteenth Amendment appears here. —Ed.]

speeches or official communications, approved, its only danger of defeat—a danger now happily small—arises from his hostility to its ratification. The issue presented to the people this fall has been and will be this policy of Congress, as contrasted with that of the Executive Department of the Government. The former puts such safeguards about the restoration of the states lately confederated in rebellion to an equal participation in the Government with the states which always remained true to the flag, as shall secure to the original Union men of the South equal rights and impartial liberty, while it stamps upon treason the indelible mark of the people’s condemnation. The latter restores to civil and political power the men who plotted the rebellion and fought it through to its bitter end, leaving to their unappeased and unrelenting hate a minority of whites so small as to be helpless, and the entire colored race, to whom liberty has been given, and its peaceable and full enjoyment guaranteed. The elections already held have resulted in the triumphant approval of the Congressional policy; and there is no reasonable doubt that the elections yet to be held will pronounce as unmistakably in favor of the constitutional amendment. Vermont, as is her wont when called to any good work, led the way with a grand emphasis in the popular approval of Congress. Yet, decisive as her declaration was at the polls, the State would have welcomed, with still greater enthusiasm and with a more triumphant majority, such a reorganization of the rebellious communities, as would have given to the people, white and black, the equal civil and political rights secured to the people of this State by our Bill of Rights and Constitution, and under which peace, order, civilization, education, contentment, Christianity and liberty have shed their benign and blessed influence alike upon every home and household in our beloved Commonwealth. I invoke upon you, and your labors, the blessing of that God who has hitherto so graciously led and upheld us as a State and people. PAUL DILLINGHAM. Executive Chamber, Montpelier, Oct. 12, 1866.†

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† [On October 23, the Vermont Senate unanimously voted to ratify the Fourteenth Amendment. See Vermont Senate Journal 75 (1866). The Vermont House voted 196 to 11 in favor of the amendment on October 30. See Vermont House Journal 139–40 (1866). —Ed.]

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34 Letter from Secretary of the Interior O. H. Browning to W. H. Benneson and H. V. Sullivan October 13, 1866*

Gentlemen: It would give me great pleasure to ­comply with your request, and visit Illinois to meet my old friends and neighbors, and talk to them face to face upon the great questions now before the country. But it is not practicable for me to do so. My public duties forbid it. Our government is worth preserving. No people were ever blessed with one better worth it. But it is not certain we will save it. There are now two tendencies in public affairs, both of which are fraught with danger. One is to the centralization of power in the General Government; the other, an absorption by the legislative department of many of the powers and prerogatives of the executive and the judiciary. ... The legislative is much the strongest of the departments—and the most aggressive, because its members are responsible to no power but the will of the dominant party for acts of usurpation. It is the only department from the encroachments of which any serious danger to our institutions is to be apprehended. It has heretofore exercised more influence than is compatible with safety and the entire freedom over both the executive and the judiciary. ... If the proposed amendments of the Constitution be adopted, new and enormous powers will be claimed and exercised by Congress as warranted by such amendments, and the whole structure of our Government will, perhaps gradually, but, yet surely, be revolutionized. And so with the judiciary; if the proposed amendments are adopted, they may, and certainly will, be used substantially to annihilate the State judiciaries. * Daily National Intelligencer (Washington, DC), Oct. 24, 1866, 2. [The letter was prepared in close consultation with President Johnson and was intended for publication. See Joseph B. James, The Ratification of the Fourteenth Amendment (Macon, GA: Mercer University Press, 1984), 74. —Ed.]

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The first section of the proposed article contains, among others, the following provision: “Nor shall any State deprive any person of life, liberty, or property without due process of law.” Why insert such a provision in the Federal Constitution? It already contains the following: “No person shall be deprived of life, liberty, or property without due process of law.” This is identically the same, except that it is a restraint on the powers of the General Government alone, and has no reference or application to State governments. And most of the State constitutions, I believe all of them, contain a similar provision, as a limitation upon the powers of the States respectively. Now, when, in the Federal Constitution, there is this guaranty against arbitrary and oppressive invasions of the rights of the citizen by the Federal authority, and a similar guaranty in the State constitutions against like oppressive action by the State governments, why insert, in the Federal Constitution, a new provision which has no reference to the powers of the General Government, and imposes no restraints upon it, but is simply a repetition of a limitation upon the powers of State governments which is already present in the State constitutions? The object and the purpose are manifest. It is to subordinate the State judiciaries, in all things, to Federal supervision and control—to totally annihilate the independence and sovereignty of State judiciaries in the administration of State laws, and the authority and control of the States over matters of purely domestic and local concern. If the State judiciaries are subordinated, all the departments of the State government will be equally subordinated, for all State laws, let them relate to what department of government they may, or to what domestic or local interest, will be equally open to criticism, interpretation, and adjudication by the Federal tribunals, whose judgments and decrees will be supreme, and will override the decisions of State courts, and leave them utterly powerless. The Federal judiciary has jurisdiction of all questions arising under the Constitution and laws of the United States; and by virtue of this new provision, if adopted, every matter of judicial investigation, civil or criminal, however insignificant, may be drawn into the vortex of the Federal judiciary. In a controversy between two neighbors about the ownership of a pig, the unsuccessful party may allege that the State tribunals have deprived him of his property without due process of law, and take the case before the Federal tribunals for revision. So, if a man be indicted for larceny, or other crime, con-

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victed, and sentenced, upon allegation of deprivation of liberty without due process of law, he may bring the case before the Federal tribunals for revision and reversal. So, too, if a murderer be arrested, tried, convicted, and sentenced to be hung, he may claim the protection of the new constitutional provision—allege that a State is about to deprive him of life without due process of law, and arrest all further proceedings until the Federal Government shall have inquired whether a State has a right to punish its own citizens for an infraction of its own laws, and have granted permission for the State tribunals to proceed. Under such a system the liberties of the people could not long be maintained. As already remarked, free governments can be preserved only by keeping the power near the people, to be exercised through local agencies. Under this new system State and local authorities would not at once disappear. For some time they would contest jurisdiction with the Federal Government; but the inevitable and constantly increasing tendency would be for the control of domestic affairs to steal away from the people, the States, and local municipal bodies, and centralize and concentrate in the hands of the Federal Government; and as party conflicts intensified, and party victories alternated, the power would more and more be used by the dominant party to punish its enemies, reward its friends, and strengthen and perpetuate its hold upon the power and patronage of the Government. Be assured, if this new provision is engrafted in the Constitution, it will in time change the entire structure and texture of our Government, and sweep away all of the guaranties of safety devised and provided by our patriotic sires of the Revolution. It is impossible to maintain our wise and happy form of government without preserving the independence and sovereignty of the States within their appropriate and constitutional spheres. They are of primary and vital importance. The States may exist and perform all their functions without the Union or the Federal Government; the Union and the Federal Government cannot exist without the States. And they must be States of equality—equal in dignity—equal in rights—equal in power—equal in control, absolute and unconditional, of all things pertaining to their internal and local policy and interests. Another blow which the proposed amendment aims at the Government which our fathers founded is in the change of the basis of representation. This would be of very pernicious effect. Aggregate population is the

true basis of representation. No matter how the elective franchise be disposed of, whether exercised by few or many, all classes of the community are represented. The interests of all classes of people in the same community are so interwoven and commingled that they cannot be separated, and whoever wields the representative power must do it for the good or ill of all—perhaps not precisely in the same degree, but he cannot use it so as largely to benefit one class without to some extent benefiting all, or to injure and oppress one class without, to a greater or lesser extent, injuring and oppressing all. There are always, even in this country, where the right of suffrage is most widely extended, large numbers who do not vote at all, whose interests, nevertheless, are cared for, and whose numbers, being computed in the apportionment of representation, widen the foundations of the representative assemblies. Such are persons under twenty-­one years of age, females of all ages, and unnaturalized foreigners. Why are they not permitted to vote? And not being permitted, why are they counted in fixing the ratio of representation? They are not allowed to vote, because they are not supposed to be sufficiently instructed in political economy and governmental affairs to be entrusted with the elective franchise. They are computed in fixing the ratio, because they are part of the same community with those who do vote, having interests in common with them; and their influence ought to be felt in shaping the laws by which their rights of life, liberty, and property are to be determined. And although they do not vote, their influence is felt and their interests are cared for, precisely because they are counted in fixing the relative weight of the communities to which they belong in the legislative assemblies, although their voices are not directly heard in determining who shall represent them. It is not true, as is constantly alleged, that the relative strength of the States which were in rebellion will be increased by the results of the war if they are now allowed representation in the National Councils. The present ratio of representation is adjusted by the census of 1860, and cannot be changed until after the census of 1870. Till that time, therefore, the relative strength of the several States of our country must remain precisely as it was under the census of 1860. After the census of 1870 the positive and relative strength of the Southern States in Congress and the Electoral College will both be diminished, even if the non-­voting black population be included in the basis. In 1860 three-­fifths of all the black 290

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population of the Southern States was counted. The census of 1870 will show the whole of the non-­voting black population to be less than the three-­fifths of 1860. Nor is it true that a vote in the South will outweigh a vote in the North if the non-­voting negro population be included in the basis of representation. . . . While the unnaturalized, non-­voting population of one section of the country will be increasing, the non-­voting black population of the other section, by obvious cases, not now necessary to be mentioned, will be constantly decreasing. It would be better for all parties and interests, and far more helpful for the perpetuity of our Government, if something like an equilibrium of strength between the different sections of the country could be maintained. The 3d section of the proposed amendments disfranchises the great majority of the educated men of the States which have been in rebellion, and excludes them from any participation in the affairs of the State and Federal Governments. The entire control of the government of those States will be placed in the hands of a meagre minority of the men at all qualified for such control; and they, as a general thing, not of the most intelligent and capable classes. No such sweeping and indiscriminate proscription is remembered since the days of Philip II of Spain. It is not to be expected that in this age and country, and with our race, a majority of the educated men of ten States will long submit to be excluded from all shares in making and administering the laws by which their lives, liberties, and property are to be judged, without the constant presence and pressure of a force adequate to coerce obedience. The adoption of this amendment will involve the necessity of maintaining an army to enforce it, which of itself will be dangerous to liberty, and add greatly to the burdens of taxation, already grievous. I can see no good to result from the proposed amendment. I see much evil. We had better adhere to the form of government which our fathers gave us. . . . Why change it? For seventy-­five years we have hardly known that we had a Government. When we did know it, we knew it only by its beneficence. And it has shown itself as strong, as beneficent—capable of successful resistance to the fiercest and most desperate assaults that it is possible to make upon a government. Why change it just as it has vindicated its power and glory, and lifted us to an eminence among the nations of the earth we never till now attained?

We have tried the old Constitution and know its capabilities. We have not tried the new, as proposed, but can readily see the confusion and disaster which it would bring. We had better let well enough alone. But, if we should change it at all, we should not change it now. The public temper was never less auspicious to calm, conscientious, wise consideration of the great questions of State. ... I do not regard the recent and pending elections as indicative of the judgment of the people of the Northern States upon the constitutional amendments. They are really not the issues presented to and considered by the people. They have not been calmly and dispassionately discussed and reflected upon. The people have had their fears alarmed and their prejudices and passions aroused and perhaps never voted under more delusive ideas as to the character of the issues before the country. ... Ours is a republican government, where the majority have the right to rule. Minorities cannot, without subverting the government; and when according to the forms prescribed, the will of the majority is expressed in the Constitution or the law, it is the duty of all to submit to it, until it can be fairly and constitutionally changed. Such I know to be the President’s intentions, and such I know he wishes to be the rule of conduct for his friends and supporters. No man has a profounder reverence for the Constitution than he, and his purpose as the executive head of the nation is to maintain and preserve it as it is, until it be changed in the form prescribed by it, is firm and immutable. He is not brave enough willfully to violate it. He is brave enough to uphold and defend it in all that his duty requires. In conclusion, let me beseech you, calmly and dispassionately, but earnestly and firmly, to do your duty to your country in this trying hour, and to stand by our glorious Constitution as it is. There is no safety for us but in this. Do your duty faithfully, and trust to God for results; and reverently implore Him to save us from the madness and infatuation which threatens us with self-­ destruction, and with the loss of the last hope for the perpetuity of free governments. Your friend and fellow citizen, O.H. Browning.

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35 “Secretary Browning’s Letter,” Evening Post (New York, NY) October 24, 1866, p. 2

If Mr. Browning’s letter, which we print elsewhere, is to be regarded as a declaration of the President’s policy, which we do not believe, it is a political blunder. A shrewd politician takes care not to commit himself in advance upon measures not before the public; but in this letter Mr. Browning opposes, not the manner and time of amending the Constitution, but the amendment itself; and, indeed, all amendment whatever. Now, nothing is more certain or more generally acknowledged than that the altered circumstances of the country, the progress of public opinion, and matured judgment of our affairs, demand some amendment to the Constitution. To deny this is to oppose all healthful progress and all necessary reform. If Mr. Browning had contented himself with saying, this is not the proper time to discuss or adopt constitutional amendments; all the states ought to be represented in Congress when so important a measure as a change in organic law is considered—he would have stood on different ground. But to oppose an amendment which appeals most strongly to the justice and self-­respect of the people, to set himself against this reform at any time, is a huge political blunder. Nor can we speak well of Mr. Browning’s argument against the amendment. He remarks in the first place: “The legislative is much the strongest of the departments—and the most aggressive, because its members are responsible to no power but the will of the dominant party for acts of usurpation. It is the only department from the encroachments of which any serious danger to our institutions is to be apprehended.” But Congress is responsible not to the dominant party, but to the whole people, who examine its acts constantly, and give a verdict upon them, of approval or disapproval, every two years. As for “usurpation”—if Congress passes an act which is unconstitutional, the President may veto it, in the first place, and if passed over his veto, the Supreme Court may be appealed to to prevent its enforcement by declaring it null and void. We should rather say that the Executive is the department

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from which we may fear encroachment upon liberty. The President is the Commander-­in-­Chief of the Army and Navy; he has a monstrous patronage, where with to secure personal supporters over the whole country; if at any time a President should be an ambitious and unscrupulous man, cherishing desires injurious to our liberties, we might indeed fear encroachments from him. ... Mr. Browning objects to the provision of the first article of amendment: “Nor shall any state deprive any person of life, liberty, or property without due process of law”—that it interferes with the right of a state. What right? To oppress its citizens? Is that a right? But he adds that the states have already individual guaranties to the same effect. Alas, it is too true, both that they have, and that those guaranties have been openly, constantly, flagrantly violated in the late slave states, for many years past. Out of this arises the necessity for an amendment which shall protect the low and weak everywhere. But the purpose is not to “subject the state judiciaries,” but to arouse them to the performance of duties which they have neglected; to make lawful liberty, the security of life, person and property, a reality and not a mere sham, all over the land. And here let us say that it lies with the people of the Southern States to check and put a stop to those centralizing tendencies of which we have so often expressed our fears and exposed the dangers. There is one thing certain, and that is equal and lawful liberty is to be maintained hereafter wherever our flag flies. It is the obstinate blindness which refuses these equal rights and this personal security by state legislation and state administration which forces the nation to put upon the general government duties of which it were better relieved, but which must be performed by some one. If a state refuses to do justice, it obliges the general government to do it. If the states do equal justice, the general government can have no occasion for interference. In South Carolina the Civil Rights Act is today a dead letter because the State has, by a deliberate and most wise and honorable act of legislation, made all men equal before the law. “The proposed change of the basis of representation,” says Mr. Browning, “would have a very pernicious effect. No matter how the elective franchise be disposed of, whether exercised by few or many, all classes of the community are represented.” That is to say, the slaves were “represented” under our former system! Would Mr. Browning maintain that the interests, the rights, the welfare of this unfortunate class, who numbered

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an eighth of our whole population, were in any manner “represented” except as a pickpocket “represents” the man whose purse he has stolen? ... Mr. Browning says in conclusion: “Ours is a republican government, where the majority have the right to rule. Minorities cannot, without subverting the government; and when according to the forms prescribed, the will of the majority is expressed in the Constitution or the law, it is the duty of all to submit to it, until it can be fairly and constitutionally changed. Such I know to be the President’s intentions, and such I know he wishes to be the rule of conduct for his friends and supporters.” That is right; on that ground all good men can stand; and on that ground the President can urge the Southern voters to “accept the situation” by ratifying the Constitutional Amendment—for that is the situation.

37 Frederick Douglass, “Reconstruction,” Atlantic Monthly November 1866*

Seldom has any legislative body been the subject of a solicitude more intense, or of aspirations more sincere and ardent. There are the best of reasons for this profound interest. Questions of vast moment, left undecided by the last session of Congress, must be manfully grappled with by this. No political skirmishing will avail. The occasion demands statesmanship. Whether the tremendous war so heroically fought and so victoriously ended shall pass into history a miserable failure, barren of permanent results,—a scandalous and shocking waste of blood and treasure,—a strife for empire, as Earl Russell characterized it, of no value to liberty or civilization,—an attempt to re-­establish a Union by force, which must be the merest mockery of a Union,—an effort to bring under Federal authority States into which no loyal man from the North may safely enter, and to bring men into the national councils who deliberate with daggers and vote with revolvers, and who do not even conceal their deadly hate of the country that conquered them; or whether, on the other hand, we shall, as the rightful reward of victory over treason, have a solid nation, entirely delivered from all contradictions and social antagonisms, based upon loyalty, liberty, and equality, must be determined one way or the other by the present session of Congress. The last session really did nothing which can be considered final as to these questions. The Civil Rights Bill and the Freedmen’s Bureau Bill and the proposed constitutional amendments, with the amendment already adopted and recognized as the law of the land, do not reach the difficulty, and cannot, unless the whole structure of the government is changed from a government by States to something like a despotic central government, with power to control even the municipal regulations of States, and to make them conform to its own despotic will. While there remains such an idea as the

36 US Congressional Election Returns, Evening Post (New York, NY) November 7, 1866, p. 3 The Elections

Fenton’s Majority 5,000 to 8,000

Latest Returns from the Interior

New Jersey Republican—Gain of Two Congressmen Glorious News from Massachusetts and the West

Twelve states—New York, Massachusetts, New Jersey, Maryland, Illinois, Missouri, Kansas and Nevada— held their annual state elections yesterday. In three of them—New York, Maryland, and Missouri—the conflict was bitter, and continued until the last moment. Maryland has been lost; New York and Missouri have remained true. Except Maryland and Delaware, every state which held an election yesterday has gone triumphantly Republican.

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* Atlantic Monthly 18 (Dec. 1866), 761–65. [The December issue of the Atlantic Monthly was distributed in November 1866. —Ed.]

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right of each State to control its own local affairs,—an idea, by the way, more deeply rooted in the minds of men of all sections of the country than perhaps any one other political idea,—no general assertion of human rights can be of any practical value. To change the character of the government at this point is neither possible nor desirable. All that is necessary to be done is to make the government consistent with itself, and render the rights of the States compatible with the sacred rights of human nature. The arm of the Federal government is long, but it is far too short to protect the rights of individuals in the interior of distant States. They must have the power to protect themselves, or they will go unprotected, in spite of all the laws the Federal Government can put upon the national statute-­book. Slavery, like all other great systems of wrong, founded in the depths of human selfishness, and existing for ages, has not neglected its own conservation. It has steadily exerted an influence upon all around it favorable to its own continuance. And to-­day it is so strong that it could exist, not only without law, but even against law. Custom, manners, morals, religion, are all on its side everywhere in the South; and when you add the ignorance and servility of the ex-­slave to the intelligence and accustomed authority of the master, you have the conditions, not out of which slavery will again grow, but under which it is impossible for the Federal government to wholly destroy it, unless the Federal government be armed with despotic power, to blot out State authority, and to station a Federal officer at every cross-­road. This, of course, cannot be done, and ought not even if it could. The true way and the easiest way is to make our government entirely consistent with itself, and give to every loyal citizen the elective franchise,—a right and power which will be ever present, and will form a wall of fire for his protection. One of the invaluable compensations of the late Rebellion is the highly instructive disclosure it made of the true source of danger to republican government. Whatever may be tolerated in monarchical and despotic governments, no republic is safe that tolerates a privileged class, or denies to any of its citizens equal rights and equal means to maintain them. What was theory before the war has been made fact by the war. There is cause to be thankful even for rebellion. It is an impressive teacher, though a stern and terrible one. In both characters it has come to us, and it was perhaps needed in both. It is an instructor never a day before its

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time, for it comes only when all other means of progress and enlightenment have failed. Whether the oppressed and despairing bondman, no longer able to repress his deep yearnings for manhood, or the tyrant, in his pride and impatience, takes the initiative, and strikes the blow for a firmer hold and a longer lease of oppression, the result is the same,—society is instructed, or may be. Such are the limitations of the common mind, and so thoroughly engrossing are the cares of common life, that only the few among men can discern through the glitter and dazzle of present prosperity the dark outlines of approaching disasters, even though they may have come up to our very gates, and are already within striking distance. The yawning seam and corroded bolt conceal their defects from the mariner until the storm calls all hands to the pumps. Prophets, indeed, were abundant before the war; but who cares for prophets while their predictions remain unfulfilled, and the calamities of which they tell are masked behind a blinding blaze of national prosperity? It is asked, said Henry Clay, on a memorable occasion, will slavery never come to an end? That question, said he, was asked fifty years ago, and it has been answered by fifty years of unprecedented prosperity. In spite of the eloquence of the earnest Abolitionists,— poured out against slavery during thirty years,—even they must confess, that, in all the probabilities of the case, that system of barbarism would have continued its horrors far beyond the limits of the nineteenth century but for the Rebellion, and perhaps only have disappeared at last in a fiery conflict, even more fierce and bloody than that which has now been suppressed. It is no disparagement to truth, that it can only prevail where reason prevails. War begins where reason ends. The thing worse than rebellion is the thing that causes rebellion. What that thing is, we have been taught to our cost. It remains now to be seen whether we have the needed courage to have that cause entirely removed from the Republic. At any rate, to this grand work of national regeneration and entire purification Congress must now address itself, with full purpose that the work shall this time be thoroughly done. The deadly upas, root and branch, leaf and fibre, body and sap, must be utterly destroyed. The country is evidently not in a condition to listen patiently to pleas for postponement, however plausible, nor will it permit the responsibility to be shifted to other shoulders. Authority and power are here commensurate with the duty imposed. There are no cloudflung shadows to obscure the

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way. Truth shines with brighter light and intenser heat at every moment, and a country torn and rent and bleeding implores relief from its distress and agony. If time was at first needed, Congress has now had time. All the requisite materials from which to form an intelligent judgment are now before it. Whether its members look at the origin, the progress, the termination of the war, or at the mockery of a peace now existing, they will find only one unbroken chain of argument in favor of a radical policy of reconstruction. For the omissions of the last session, some excuses may be allowed. A treacherous President stood in the way; and it can be easily seen how reluctant good men might be to admit an apostasy which involved so much of baseness and ingratitude. It was natural that they should seek to save him by bending to him even when he leaned to the side of error. But all is changed now. Congress knows now that it must go on without his aid, and even against his machinations. The advantage of the present session over the last is immense. Where that investigated, this has the facts. Where that walked by faith, this may walk by sight. Where that halted, this must go forward, and where that failed, this must succeed, giving the country whole measures where that gave us half-­measures, merely as a means of saving the elections in a few doubtful districts. That Congress saw what was right, but distrusted the enlightenment of the loyal masses; but what was forborne in distrust of the people must now be done with a full knowledge that the people expect and require it. The members go to Washington fresh from the inspiring presence of the people. In every considerable public meeting, and in almost every conceivable way, whether at court-­house, school-­house, or cross-­ roads, in doors and out, the subject has been discussed, and the people have emphatically pronounced in favor of a radical policy. Listening to the doctrines of expediency and compromise with pity, impatience, and disgust, they have everywhere broken into demonstrations of the wildest enthusiasm when a brave word has been spoken in favor of equal rights and impartial suffrage. Radicalism, so far from being odious, is now the popular passport to power. The men most bitterly charged with it go to Congress with the largest majorities, while the timid and doubtful are sent by lean majorities, or else left at home. The strange controversy between the President and Congress, at one time so threatening, is disposed of by the people. The high reconstructive powers which he so confidently, ostentatiously, and haughtily claimed, have been disallowed, denounced, and utterly

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repudiated; while those claimed by Congress have been confirmed. Of the spirit and magnitude of the canvass nothing need be said. The appeal was to the people, and the verdict was worthy of the tribunal. Upon an occasion of his own selection, with the advice and approval of his astute Secretary, soon after the members of Congress had returned to their constituents, the President quitted the executive mansion, sandwiched himself between two recognized heroes,—men whom the whole country delighted to honor,—and, with all the advantage which such company could give him, stumped the country from the Atlantic to the Mississippi, advocating everywhere his policy as against that of Congress. It was a strange sight, and perhaps the most disgraceful exhibition ever made by any President; but, as no evil is entirely unmixed, good has come of this, as from many others. Ambitious, unscrupulous, energetic, indefatigable, voluble, and plausible,—a political gladiator, ready for a “set-­to” in any crowd,—he is beaten in his own chosen field, and stands to-­day before the country as a convicted usurper, a political criminal, guilty of a bold and persistent attempt to possess himself of the legislative powers solemnly secured to Congress by the Constitution. No vindication could be more complete, no condemnation could be more absolute and humiliating. Unless reopened by the sword, as recklessly threatened in some circles, this question is now closed for all time. Without attempting to settle here the metaphysical and somewhat theological question (about which so much has already been said and written), whether once in the Union means always in the Union,—agreeably to the formula, Once in grace always in grace,—it is obvious to common sense that the rebellious States stand to-­day, in point of law, precisely where they stood when, exhausted, beaten, conquered, they fell powerless at the feet of Federal authority. Their State governments were overthrown, and the lives and property of the leaders of the Rebellion were forfeited. In reconstructing the institutions of these shattered and overthrown States, Congress should begin with a clean slate, and make clean work of it. Let there be no hesitation. It would be a cowardly deference to a defeated and treacherous President, if any account were made of the illegitimate, one-­ sided, sham governments hurried into existence for a malign purpose in the absence of Congress. These pretended governments, which were never submitted to the people, and from participation in which four millions of the loyal people were excluded by Presidential

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order, should now be treated according to their true character, as shams and impositions, and supplanted by true and legitimate governments, in the formation of which loyal men, black and white, shall participate. It is not, however, within the scope of this paper to point out the precise steps to be taken, and the means to be employed. The people are less concerned about these than the grand end to be attained. They demand such a reconstruction as shall put an end to the present anarchical state of things in the late rebellious States,— where frightful murders and wholesale massacres are perpetrated in the very presence of Federal soldiers. This horrible business they require shall cease. They want a reconstruction such as will protect loyal men, black and white, in their persons and property; such a one as will cause Northern industry, Northern capital, and Northern civilization to flow into the South, and make a man from New England as much at home in Carolina as elsewhere in the Republic. No Chinese wall can now be tolerated. The South must be opened to the light of law and liberty, and this session of Congress is relied upon to accomplish this important work. The plain, common-­sense way of doing this work, as intimated at the beginning, is simply to establish in the South one law, one government, one administration of justice, one condition to the exercise of the elective franchise, for men of all races and colors alike. This great measure is sought as earnestly by loyal white men as by loyal blacks, and is needed alike by both. Let sound political prescience but take the place of an unreasoning prejudice, and this will be done. Men denounce the negro for his prominence in this discussion; but it is no fault of his that in peace as in war, that in conquering Rebel armies as in reconstructing the rebellious States, the right of the negro is the true solution of our national troubles. The stern logic of events, which goes directly to the point, disdaining all concern for the color or features of men, has determined the interests of the country as identical with and inseparable from those of the negro. The policy that emancipated and armed the negro— now seen to have been wise and proper by the dullest— was not certainly more sternly demanded than is now the policy of enfranchisement. If with the negro was success in war, and without him failure, so in peace it will be found that the nation must fall or flourish with the negro. Fortunately, the Constitution of the United States knows no distinction between citizens on account of color. Neither does it know any difference between a citi-

zen of a State and a citizen of the United States. Citizenship evidently includes all the rights of citizens, whether State or national. If the Constitution knows none, it is clearly no part of the duty of a Republican Congress now to institute one. The mistake of the last session was the attempt to do this very thing, by a renunciation of its power to secure political rights to any class of citizens, with the obvious purpose to allow the rebellious States to disfranchise, if they should see fit, their colored citizens. This unfortunate blunder must now be retrieved, and the emasculated citizenship given to the negro supplanted by that contemplated in the Constitution of the United States, which declares that the citizens of each State shall enjoy all the rights and immunities of citizens of the several States,—so that a legal voter in any State shall be a legal voter in all the States.

38 Georgia, Legislature Rejects the Fourteenth Amendment, Richmond Whig (VA) November 13, 1866, p. 1

The Georgia Legislature

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The Constitutional Amendment Rejected Milledgeville, November 9.—The Legislature rejected the constitutional amendment. The rejection resolution reads as follows: Resolved, That the Legislature of Georgia declines to ratify the amendment adding a fourteenth article to the Constitution of the United States. A motion was made in the Senate to postpone the consideration to some future day, but was amended to move the adoption of the above resolution, and this was passed—yeas 36, nays none—a full Senate voting. In the House the vote stood—yeas 131, nays 2— Ellington of Gilmer county, and Humphreys, of Fauvier county. The committee reporting this resolution accompanying the report with lengthy argument. The substance is as follows: 1st. That the States of the United States alone are authorized to consider constitutional amendments. 2d. That such amendments must be proposed by

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two-­thirds of Congress, or two-­thirds of the Legislatures of the States. 3d. That Georgia was one of the original States, and must always have continued such, unless she reserved the right to secede or give the Federal Government the right to reject her. The report adduces the legislation of Congress, the proclamations of the President, and the issue made during the war by the Government of the United States to prove it was held by that Government that no State could secede, and the war was only intended to uphold the practical relations of the States thereto, and the suppression of the rebellion was to restore these relations fully, and the Constitution then becomes the supreme law of the land. The argument then goes on to declare that Georgia and other States are integral parts of Congress, and no constitutional Congress can be convened while such integral portions are forcibly excluded. It says the adoption of the emancipation amendment is no precedent for the adoption of this amendment, the southern States having at that time no delegations to be received into Congress, as now, who desired admittance, and then concludes by saying that as the amendment in question was not proposed by two-­thirds of a constitutional Congress, the committee recommended the adoption of the resolution above mentioned.

Fortieth Congress will reflect the same sentiments held by the Thirty-­ninth, and being backed by the people upon issues fairly made by the President, the Congress will have more will for action, and will be more pressed to take decided measure than heretofore. The one great issue really settled is, that the people will not lose the fruits of the victory won in the suppression of the rebellion. They demand and will have protection for every citizen of the United States, everywhere within the national jurisdiction—full and complete protection in the enjoyment of life, liberty, property, the pursuit of happiness, the right to speak and write his sentiments, regardless of localities; to keep and bear arms in his own defence, to be tried and sustained in every way as an equal without distinction to race, condition or color. These are the demands; these the securities required. In addition to these rights of the citizen, it is demanded that the life of the nation shall be sustained, and the Union perpetuated. Let us see how far the Constitutional Amendment is calculated to effect this object. It reads as follows: ... * This proposed article contains four distinct propositions. The first is similar in principle to the Civil Rights Bill of the 9th April, 1866. That is, they both declare that all persons born within the United States are citizens thereof. The difference is that the Civil Rights Bill declares that “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States;” while the proposed amendment says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the States wherein they reside.” The principle is to declare natural citizenship. The objections to it have been crude and inconsistent. Perhaps they are no where better stated, and in few places more loosely, than in the veto message of President Johnson upon the Civil Rights Bill. It has been charged that this was not made with the advice of the President or the Cabinet, but that it received the aid of the present Attorney-­General, of Judge Sharkey, Gov. Parsons, and other Southern advisors. Hear the President: “By the first section of the bill, all persons born in the United States, and not subject to any foreign Power, excluding Indians not taxed, are declared to be citizens of

39 “Madison,” Essays on the Fourteenth Amendment, Nos. I, II, and V, New York Times November 10, 15, and 28, 1866 November 10, 1866, p. 2 The National Question

The Constitutional Amendments—National Citizenship To the Editor of the New York Times: The elections are now over. The country has decided between the policy of the President and Congress. The

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* [The text of the Fourteenth Amendment appears here. —Ed.]

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the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, people of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is, by the bill, made a citizen of the United States. It does not purport to declare or confer any other right of citizenship than Federal citizenship. It does not purport to give these classes of persons any status as citizens of States, except that which may result from their status as citizens of the United States. The power to confer the right of State citizenship is just as exclusively with the several States as the power to confer the right of Federal citizenship is with Congress. The right of Federal citizenship thus to be conferred on the several excepted races before mentioned is now, for the first time, proposed to be given by law. If, as is claimed by many, all persons who are native-­born, already are, by virtue of the Constitution, citizens of the United States, the passage of the pending bill cannot be necessary to make them such. If, on the other hand, such persons are not citizens, as may be assumed from the proposed legislation to make them such, the grave question presents itself, whether, when eleven of the thirty-­six States are unrepresented in Congress at the present time, it is sound policy to make our entire colored population and all other excepted classes citizens of the United States? Four millions of them have just emerged from Slavery into Freedom. Can it be reasonably supposed that they possess the requisite qualifications to entitle them to all the privileges and immunities of citizens of the United States? Have the people of the several States expressed such a conviction? It may also be asked whether it is necessary that they should be declared citizens in order that they may be secured in the enjoyment of the civil rights proposed to be conferred by the bill? Those rights are, by Federal as well as State laws, secured to all domiciled aliens and foreigners even before the completion of the process of naturalization; and it may safely be assumed that the same enactments are sufficient to give like protection and benefits to those for whom this bill provides special legislation. Besides, the policy of the Government, from its origin to the present time, seems to have been that persons who are strangers to and unfamiliar with our institutions and our laws should pass through a certain probation, at the end of which, before attaining the coveted prize, they must give evidence of their fitness to

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receive and to exercise the rights of citizens as contemplated by the Constitution of the United States. The bill, in effect, proposes a discrimination against large numbers of intelligent, worthy, and patriotic foreigners, and in favor of the negro, to whom, after long years of bondage, the avenues to freedom and intelligence have now been suddenly opened. He must, of necessity, from his previous unfortunate condition of servitude, be less informed as to the nature and character of our institutions than he who, coming from abroad, has to some extent at least, familiarized himself with the principles of a Government to which he voluntarily intrusts “life, liberty, and the pursuit of happiness.” Yet it is now proposed, by a single legislative enactment, to confer the rights of citizens upon all persons of African descent born within the extended limits of the United States, while persons of foreign birth, who make our land their home, must undergo a probation of five years, and can only then become citizens upon proof that they are of “good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.”” These objections by the President embody about all which has been urged in any quarter. His first proposition virtually assumes the same ground recently assumed by the Texas Legislature—that is, that it is not in the power of the United States to make a citizen, but that power is reserved to the States. This fallacy was better expressed by the Wigfall Secession school when they assumed that there are no citizens of the United States, but only of States. The President says: “It does not purport to declare or confer any other right of citizenship than Federal Citizenship,” &c. Certainly President Johnson and all that class of politicians would acknowledge Chief-­Justice Taney to be good authority. And yet, in the celebrated Dred Scott decision, he declares that since the adoption of the Federal Constitution, no State can make a foreigner or any description of persons citizens of the United States, nor entitle them to the rights and privileges secured to citizens by that instrument; that we must not confound the rights of citizenship which a State may confer within its own limits and the rights of citizenship as a member of the Union. He may have all the rights and privileges of the citizens of a State, and yet not be entitled to the rights and privileges of a citizen in any other State of the Union.—19 Howard, 393, 404, 405. What the rights and privileges of a citizen of the United States are, are thus summed up in another case:

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Protection by the Government; the enjoyment of life and liberty, with the rights to possess and acquire property of every kind, and to pursue and obtain happiness and safety; the right to pass through and to reside in any other State, for the purposes of trade, agriculture, professional pursuits or otherwise; to obtain 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, &c., &c. These are the long-­defined rights of a citizen of the United States, with which States cannot constitutionally interfere. And it is because they were generally denied to the whole class, on account of color, and illy secured to all in certain sections, that further legislation became necessary. As to the argument about Chinese and “Gypsies,” it is hardly worthy of consideration. ... The revolution changed the whole organism of the Government. It struck Slavery out of the Constitution, and left one-­eighth of the entire population without any status whatever. They were certainly not aliens. Perhaps so great a change made them per se citizens; possibly it did not; but certainly they could not be allowed to remain without owing allegiance to the Government. At any rate, it rarely happens that there is ever objection to a declaratory law. But because of this objection on the part of the President—not to the want of power in Congress to pass the law, further than the denial is to be inferred from the President’s dangerous revolutionary doctrine, that no legislation is binding, because the States which deserted Congress, created a new government and levied war against the nation, are not represented, the law is virtually a dead letter, and therefore there is a propriety in making it organic. It is time that national citizenship should be defined in the Constitution and unquestionably protected by appropriate legislation. It is but following the example of other nations. The amendment is in terms the most appropriate. It is carrying out the advanced sentiment of the great masses in favor of equal rights and protection to all. It is an enlarged and comprehensive principle; and those who stop short of it but consult the prejudices of bigotry and ignorance. My own opinion is, that the Civil Rights Bill was, in this respect, constitutional. To Congress belongs the exclusive right of naturalization. It has been exercised through the courts, by treaties and by legislation, as in Texas. Each mode has been held to be constitutional.

There is no argument against it, except the narrow prejudice that “the negro is black, and black is the color of the devil; and, therefore, he can have no rights.” But whether the law be constitutional or not, there is no less necessity for passing this amendment, because it denies to the States the power to abridge the “privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor to any person within its jurisdiction the equal protection of the laws.” The objection in the South to this article is that it abridges the rights of the States; the objections of the President, speaking through his Secretary of the Interior, are that it is unnecessary; that the same guarantees, in fact, exist in the Federal Constitution as to the United States, and in the State Constitutions as to the States. How far these objections are well founded will be considered in another letter. Madison.

November 15, 1866, p. 2

The Proposed Constitutional Amendment—What it Provides No. II

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We concluded the first number with the quotation of the First Section of the proposed Amendment to the Constitution, that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This is intended for the enforcement of the Second Section of the Fourth Article of the Constitution, which declares that “the citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States.” We have seen, in the first number, what privileges and immunities were intended. The same authorities have held that the negro of African descent was not a citizen within the meaning of the term, as used in this and other articles of the Constitution; that he was not one of the “people” who ordained that sacred charter; that as a slave he was only three-­fifths of a “number,” but as a free man he was a whole number to be counted for representation, and a whole “person,” who might be held to involuntary “service,” and reclaimed in any State to which he might escape. The free colored man could have no protection in any slave State during the existence of the relation of master and slave.

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He could not change his residence, nor travel at pleasure; he could neither buy, sell, nor hold property; he was liable to be enslaved under various circumstances, and such laws were often enforced. Those who contend for “the Constitution as it is and the Union as it was,” affect to acknowledge the freedom of the colored people; but, by a series of unfriendly legislation, many of the States construe that freedom to mean no acknowledgement of citizenship and the enjoyment of very few rights. Without enumerating the disgraceful particulars of legislation, it must be apparent to every candid mind, that the Constitution must be so amended as to place restrictions upon the States, or else the negro must be virtually reenslaved. But the inhibition goes further. It says, “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.” There is no doubt but that in spirit the Constitution always meant this. Those who contend for the “independence and sovereignty of the States,” and who thus ignore the rights prohibited to the States, see great mischief in adding another which relates exclusively to the rights of persons. But, considering the history of the subject, and the changed relations of men, all must see that this positive inhibition is necessary to civil liberty. Already the Constitution said “no person shall be deprived of life, liberty, or property without due process of law.” The object now is to make the Constitution say that no State shall do this thing. The Secretary of the Interior says the inhibition in the fifth amendment of the Constitution of the United States is upon that government, but that the States have generally similar declarations in their Constitutions. But the point is that these very States do not admit that four and a half million of people are “persons” within the purview of the Constitution, and therefore they say that the guaranty is not for them at all, nor, indeed, for any who were and are the friends of this friendless class. We are to remember that the fifth amendment which contains this guarantee, was first proposed by Massachusetts in the ratification of “the original Constitution of our fathers,” and that the Supreme Court of that liberty-­loving State, considering the history and the language, held—one of the chief actors delivering the opinion—that after this solemn declaration by the whole people of the United States, slavery could no longer exist. None can now say that wisdom and justice did not require that this interpretation should be universal.

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I am aware that the opposition to this amendment has seemed to be comparatively feeble; that most Northern men, like President Johnson and his Secretary, Mr. Browning, have either illogically argued that it would abridge the rights of States, or else untruly urged that it was unnecessary, because its principles have already been declared, and are enforced. Never was assertion more wicked or delusion more fatal. The assertion of the “sovereignty of the States,” and the new notion of the “sovereignty of the Judiciaries,” so quietly exposed by an inside writer in your columns, are the infamous Pandora’s box out of which come all the woes of our Government. The same notions of State rights and State sovereignty are looming up in the same latitude, and pursuing the same oppressive course against races and sentiments. For thirty years no man could speak or write or think that Slavery was not of all institutions most wise, economical, humane, Christian and divine. To be silent was to be suspected; to speak against it insured expulsion, mobbing or hanging. Of what advantage were constitutional guarantees then? And even now, a President, who never felt the enormity of those things, forbids the circulation of a Boston newspaper, because, in his opinion, it is incendiary. This is only a continuation of the “higher law” misrule, which suppressed the circulation of all Free-­Soil literature in fifteen States. Ever since the foundation of the Government, the notions of citizenship, and the rights of the red man, the black man, the naturalized citizen, and the native born white man have been exceedingly crude. For the first two classes, there has never been that humanity and kindness due to the weaker race; as to the naturalized citizen, a great political party, secret and intolerant, was founded upon a total misapprehension of the effects of naturalization, by “uniform rule,” through the courts, and by the effect of revolutions, such as the purchase of Louisiana, the annexation of Texas, and the conquest of California— thus nationalizing whole races and mixed races of men, by treaty and by legislative enactment. But this amendment will not expend itself upon the red man, the black man and the man of mixed color. Our Government, so rapid in its advancement, so glorious in its history, so mighty in its strength, will never be complete, as a great Republic, until it clearly defines citizenship and protects every man entitled to the name of American citizen, wherever upon the earth he may lawfully be. This protection must be coextensive with the whole Bill of Rights in its reason and spirit. Reason must be left free to combat error. The true, the faithful

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and the loyal must not be turned over to the vengeance of those who have or may seek to destroy the great nation. The theory of State allegiance is now forever exploded. None have gone so far to destroy that theory as the Southern Secessionists. With their martial laws, conscript laws, confiscation laws, impressment laws, proclamations and military orders, which rose above all laws, they, in the name of a Confederacy, completely annihilated everything like State rights, State jurisdiction and the obligation of the citizen to his State. Individually and collectively they are estopped from denying the necessity of national power during a nation’s crisis. But it is not proposed to exercise an implied power when a direct one may be obtained in a constitutional way. The great masses of the loyal North have decided in favor of the proposed amendments, upon a square issue, strongly contested. There was no point upon which the masses were so terribly in earnest as in the determination that those who conquered the rebellious States shall have the right to settle there and develop the inexhaustible resources of that country, and there to remain, peaceably exercising the offices of industry and charity. This they will have, as citizens with equal rights, if the rebellion has to be conquered again. Let it be understood that all systematic resistance to the equal and protected rights of the citizen, under the Constitution, is insurrection and rebellion—nothing more, nothing less. Until it ceases and good neighborhood prevails the war is continuing in its worst form. Madison.

November 28, 1866, p. 2 The National Question No. V

The Constitutional Amendment—Suffrage— The Rebel States—The Truth of History The positions heretofore illustrated have been that there exists a necessity of defining national citizenship, growing out of the fact that one-­eighth part of the whole population of the United States is not generally admitted to have any legal status whatever; and that there also exists a necessity of more clearly defining the privileges, immunities, and rights of the citizen, and of securing his protection everywhere against mob violence and unjust State and municipal legislation. The terrible con-

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sequences which have flowed from the claims of States’ Rights, State Sovereignty, and corporate power over the citizen, establish this fact beyond all peradventure. I am aware that it is blindly argued by many that this right has been surrendered by the conquest over the rebellion; that the Secessionists have yielded the doctrines of State Sovereignty and the claims of the State to the paramount allegiance of the citizen. This is a great mistake in fact. Both the Senate and House reports of the Legislature of Texas base the strongest opposition to the Constitutional Amendment, upon the ground that it assumes to define national citizenship; and they distinctly claim that no one is a citizen of the United States except in and through his citizenship of a State. Most of the States refuse to declare their secession ordinances void; on the contrary, insist that they have only been repealed, and everywhere among them it is objected that to Congress is given the power to enforce the Bill of Rights. ... It is admitted that the Constitutional Amendment does not contemplate conferring the right of suffrage, by Congress, upon any class of citizens. And it may be conceded that the national authority would not be interposed until there is some outrageous denial of suffrage to a large class of inhabitants—something which violates the guarantee of a republican form of government. Connecticut, for example, denies suffrage to the [un]learned white man and to the negro, learned or unlearned. New York denies it to the poor negro, but gives it to the rich negro, and to every white man, however poor and illiterate. Very well, the numbers are few who are excluded, and de omnibus non curet lex. But when the rich, the learned and illiterate whites (and there are some of each class) in South Carolina, Mississippi and Louisiana, exclude four-­sevenths or one-­half of their populations, whether rich, learned or illiterate, not because of color merely, for the chivalry have whitened many a man of them, but because of African descent, the maxim that a majority shall rule, even though that majority be ever so illiterate, applies. Lord Chesterfield said that all men are illiterate who cannot read Greek and Latin. This standard may be too high; but any standard which gives all the sense, judgment and logic of a country to the learned fools is equally absurd. I wish also to be understood as not conceding for one moment that the rebel States are States, in that condition where they may assert their rights as such. I am forced to deny in toto that the plastic hand of President

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Johnson has restored these States back to their condition before the war. I am as strong an advocate of the doctrine of the nullity of secession ordinances as any constitutional lawyer can be. And yet I know that the history of five years was a terrible reality in that country. It was no mere election riot. Madison.

40 Florida, Gov. David S. Walker’s Message to the Legislature November 14, 1866*

Gentlemen of the General Assembly: I welcome you to the Capitol, and avail myself of the occasion of your re-­assembling, to comply with that clause of the Constitution which declares that the Governor “shall from time to time, give to the General Assembly information of the state of the Government, and recommend to their consideration such measures as he may deem expedient.” I regret that “the information of the state of the Government” which I am now able to give you, is of a most gloomy character—far more gloomy than any of us anticipated it would be when I addressed you at the commencement of your last session. At that time, the President of the United States, representing, as we supposed, the Government of the United States, indicated a line of policy, the adoption of which we were assured would secure a full recognition of our civil rights and also our representation in Congress. We adopted the line of policy proposed to the full extent. We took the oath prescribed by the President “to support the Constitution of the United States and the union of States thereunder, and to abide by and faithfully support all laws and proclamations made with reference to the emancipation of slaves.” We repudiated all debts contracted in support of the rebellion. We declared the ordinance of secession null and void. We adopted the proposed Constitutional Amendment abolishing slavery throughout the United States. We enabled the freedmen to sue and be sued and be witnesses in all our Courts, and put them upon a perfect equality * Florida House Journal 8–17 (1866).

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with white men as to all rights either of person or property. In short, we left nothing undone that the Government, acting through the President, demanded of us. But still our Constitutional representation is denied us, and our civil rights have not been allowed to us, or, if we enjoy any portion of them, it seems to be by the permission of the military, and not by virtue of the ­Constitution. ... [T]hough we pay all taxes and obey all laws and are ready to give our lives in defense of the Constitution, we do not enjoy the protection of that sacred instrument. I am glad to be able to say that no part of the blame of this violation of what we understood to be the pledged faith of the nation is imputable to the President. So far as he is concerned, he has endeavored to comply with our reasonable expectations. By his Proclamation of August 20th, he declared the insurrection at an end, the cessation of martial law and full restoration of our civil rights; but a powerful party has arisen, which declares that he had no right to make that Proclamation, and that his act is therefore void. It is also due to the President to acknowledge that he has done all he could to secure our right of representation, but unfortunately the dominant party are fearful that the admission of the Southern members might transfer the balance of power from themselves to their opponents. Hence they deny the Constitutional right of our members from ten States to their seats, and exclude them without even indicating any terms on which they will be admitted. It is true they have passed “A Joint Resolution proposing an amendment to the Constitution of the United States,” but they have nowhere said that upon the adoption of this amendment our members will be admitted. But, even if they had said so, I can scarcely think our people would purchase a right, already clearly their own under the Constitution, at so terrible a price. I now submit an authenticated copy of said proposed amendment to you for adoption or rejection. I recommend that it be rejected for the following reasons: 1st. The Constitution declares that “Congress, whenever two-­thirds of both Houses shall deem it necessary, shall propose amendments to the Constitution.” The Constitution also declares that the House of Representatives shall be composed of members chosen every second year by the people of the several States, and that the Senate shall consist of two Senators from each State. I submit whenever “two-­thirds of both Houses of Congress,” within the meaning of the Constitution, have

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ever proposed this amendment? Certainly the Congress that proposed this amendment was not composed of representatives “elected by the people of the several States” and “two Senators from each State.” Ten of the States, and those mostly to be affected by the proposition, were expressly excluded from voting upon it. 2d. The Constitution says that “every order or resolution, to which the concurrence of the Senate and House of Representatives may be necessary, (except on questions of adjournment,) shall be presented to the President.” This, though a joint resolution, requiring the concurrence of both Houses, was never submitted to the President. 3d. The First Section of the proposed amendment reads thus: “All persons born or naturalized 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.” The Fifth Section reads thus: “Congress shall have power to enforce by appropriate legislation the provisions of this article.” These two Sections taken together, give Congress the power to legislate in all cases touching the citizenship, life, liberty or property of every individual in the Union, of whatever race or color, and leave no further use for the State governments. It is in fact a measure of consolidation entirely changing the form of government. 4th. The second section reads as follows: ... * This section proposes to diminish the political power of the South by fixing the basis of representation on the voting population, instead of on the census, as is not fixed by the Constitution. ... The idea seems to imply that a Representative represents merely the voters, instead of the people generally; instead of which, the voters, whether few or many, are in fact only the appointing power. Nobody imagines, for instance, that the Senator represents merely the Legislature or Governor that appointed him; or that the President of the United States is the President of the electoral college, instead of the people; or that our wives and children are not represented because they do not * [The text of Section Two appears here. —Ed.]

vote. Representatives in Congress are based on population, and represent population, while the designation of the citizens who are to nominate them is a matter of State discretion and regulation. This is the whole statement. There is no unfairness in it, and none would ever have been suggested, but for the fact that the liberation of our slaves has incidentally added to our representative population. ... 5th. The third section of the proposed amendment reads as follows: ... † My first objection to this section is that it seeks to punish certain classes of citizens, not more guilty than others, by depriving them of their right to hold office under the State and Federal Governments. Most of the persons thus to be punished have already been pardoned by the President, under authority expressly conferred by Congress in the Act of July 17, 1862. I hold that no power on earth can justly go behind the President’s pardon and punish these parties again in any way whatever. ... The fact is patent to every man in the South, that the classes proscribed are not more guilty than those who are not proscribed. There is no justice or propriety in the discrimination. If it be said, that, in cases of hardship, Congress may remove the disability, I reply, that is no answer. To my mind it is rather an aggravation of the evil. This pardoning power vested in Congress will operate as a corruption fund. A man who is elected to an office will be received or rejected, not because of his constitutional right or merits, but from the favor or disfavor of the dominant party. ... The fourth section of the amendment reads thus: ... ‡ All I have to say about this section is, that it is put in purely as a make-­weight. All that it proposes to secure is secured already beyond question. Except that it would be a useless part of the Constitution, I should have no objection to its adoption. But, as we cannot adopt one without adopting all the sections, I advise its rejection also. Of the fifth article, which says “The Congress shall have power to enforce by appropriate legislation the

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† [The text of Section Three appears here. —Ed.] ‡ [The text of Section Four appears here. —Ed.]

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provisions of this article,” I have already spoken. Taken in connection with the other sections, it gives to the Federal government all the powers heretofore exercised by the State governments over the affairs of individuals. It makes a consolidated government of the former and leaves no longer any necessity for the existence of the latter. I here close what I have to say on the proposed amendment. I trust you will give it a fair and unbiased consideration, and adopt it or reject it as in your wisdom you shall deem best.

In the Constitution of the United States, she was happy to say, there was no insulting clause to the women of the nation, as there was in many of the organic laws of the States. The question was all-­pervading, and as we were now agitating the question of suffrage for the colored man we should do so for the women of our land. Most men were now disposed to give suffrage to the blacks, but dissented from the same argument as applied to women. Just about the time of the massacre of Fort Pillow, a colored man, in making remarks, said that he did not know but what women should have the right to vote, but he did not think they were as well qualified to exercise the privilege as they were. Once it seemed as if it were hopeless to ask for equal suffrage, but the movement was growing. Mrs. Susan B Anthony wished to call the attention of the people to the call for the Convention, which she proceeded to read. It was called for the purpose of demanding equal suffrage and equal rights for all. ... Frederick Douglass, being called on, said that he had not expected to speak, yet he was always prepared, and would comply with their request. He had marveled that men had attempted to carry on the fabric of Government without calling in the assistance of women. He affirmed that it was impossible to think of any reason why man should construct a Government which would not apply equally to women. . . . Our republican form of government is often spoken of as a masterly and unsurpassed specimen of workmanship, provided with checks and balances, which would ensure its working right, and to which there is no other Government to be compared. I admit this in part, but not wholly, for there is a partial failure in that part which deprives women of the franchises of freedom. It appeared to him that this was to be a Woman’s Rights Convention, instead of an Equal Rights Convention. He should not object to this if the women would only kindly take the negro by the hand and elevate him. For his part, he could not attend a public meeting without bringing the negro with him— in fact, he was inseparable. While he thought that the question of equal rights was of importance to women, he thought it was much more so to them. It was a question of life and death, for New Orleans was remembered by them. Women have a hold on the affections of men, but his race had none on that of the ex-­slaveholders. They disliked the black men, and it was therefore essential that they should have the power to vote.

41 The Equal Rights Convention, Remarks of Susan B. Anthony, Elizabeth Cady Stanton, and Frederick Douglass, Albany, NY November 20, 1866*

A call for a Convention of those who favor the rights of all persons to equal privileges in the eye of the law was held in Tweddle Hall, in this city, yesterday, and its sessions will continue through tomorrow. The old and shining lights of the anti-­slavery rostrum, and the itinerant lecturers on womens’ rights were there, each and all ready with a panacea for the disordered condition of the country, and predicting a reign of peace and plenty when their suggestions should be heard. It will not be too much, probably, to say that Frederick Douglass was the most distinguished in the gathering. He made a speech in his usual close and logical style, or in what his admirers term so, which was received with loud applause. ... The meeting was called to order a little after 10 o’clock by Mrs. Stanton, who said that Mrs. Mott was indisposed, and was not able to attend the meeting of the Convention. They were met together to discuss the question of equal suffrage. . . . Massachusetts has just honored herself by electing two colored men to the Legislature, and our wives and mothers should be honored as much. ... * New York Times, Nov. 21, 1866, 8.

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42 Florida, Legislative Committee Reports and Rejection of the Fourteenth Amendment

November 23, December 1 and 3, 1866 House, November 23, 1866 *

The Committee on “Federal Relations,” to whom was referred that portion of the message of his Excellency the Governor relating to the proposed amendment of the Constitution of the United States, have had the same under consideration and beg leave most respectfully to make the following

Report: The amendment proposed for our ratification is as follows: ... † This amendment, whether it comes proposed in accordance with the Constitution of the United States or not, demands in our opinion a calm and respectful consideration, in which neither passion nor prejudice but reason should control. We are anxious to close the breach which civil war has produced, and once more become practically a State in the Federal Union. We must in future occupy one or another relation to the Government of the United States, and whether it be that of a conquered people or that of a State, we think that our judgment having been consulted, it is highly proper to consider the merits of the amendment. The first section of this amendment, considered in connection with the fifth, is virtually an annulment of State authority in regard to the rights of citizenship. It invests the Congress of the United States with extraordinary power at the expense of the States. It would so operate that under its provisions all persons, without distinction of color, would become entitled to the “privileges and immunities” of citizens of the United States, and among those privileges would be embraced the elective franchise, as well as the competency to dis* Florida House Journal 75 (1866). † [The text of the Fourteenth Amendment appears here. —Ed.]

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charge the duty of jurors. In addition to this, without denying to the State the power and right to legislate and to control to some extent the liberty and property of the citizen, it vests in the General Government the power to annul the laws of a State affecting the life, liberty and property of its people, if Congress should deem them subject to the objections therein specified. The change which this section proposes, affects the general interests of the people of the United States, and we are unable to see upon what grounds, independent of the fact that it was a party measure, it could have recommended itself to any State in the Union. Its tendency is to the complete consolidation of the government— a result which should not be desired by any person or party really anxious to promote the best interests of the union—and it is to us a matter of great surprise that any State should voluntarily and cheerfully invest Congress with such extraordinary powers, affecting the internal interests of its own people. ... The second section proposes to the Southern States either to deprive themselves of a great portion of their political power and decrease their representation in Congress, or so change their present Constitutions and laws as to invest the negro with the elective franchise. If you do not permit the black man to control the political power of the State, as a consequence we will control your representation in the general government, and if he is invested with the elective franchise, we will, under the first section, nullify any State law which denies him the privilege of holding office. This is the substance of the proposition. We must be shorne of our representation or give the inferior and unintelligent race the supremacy in the State government. It would follow also that our power in the general government ceases. . . . The control of the Southern States by the negro would result either in a war of races or the emigration of one or the other race, and a consequent total destruction of all interests. No sane man would desire to extend the right of suffrage to these people without “abridgement” who is familiar with their present condition, for such action can result in no practical good either to them or to others. We cannot at this time, just as they have emerged from slavery, without education, and controlled by prejudice, invest them with the elective franchise without restriction or qualification. We have done everything already that is necessary to secure their practical advancement.

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... Let us now consider the third section of this proposed amendment. This section prohibits the holding of any office, civil or military, under the United States, or under any State, by any person who has given aid or comfort to the late Confederacy or its soldiery, who had previously taken an oath to support the Constitution of the United States as an officer of the United States, as a member of Congress, or as an executive, legislative, or judicial officer of a State. ... When the historian will detail the facts connected with the conquest of the Southern people, (for such it is viewed from our stand-­point) that page will certainly be a strange one which records the fact that the Congress of the United States and the people of the North not only pronounced us infamous, but offered to us the alternative of passing upon ourselves the same judgment, or submitting to fire, to sword and to destruction. As the representatives of the people of the State of Florida, we protest that we are willing to make any organic changes of a thoroughly general character, and which do not totally destroy the nature of the Government. We are willing to do anything which a generous conqueror even should demand, much less the Congress of our common government. On the other hand, we will bear any ill before we will pronounce our own dishonor. We will be taxed without representation; we will quietly endure the government of the bayonet; we will see and submit to the threatened fire and sword and destruction, but we will not bring, as a peace offering, the conclusive evidence of our own self-­created degradation. The fourth clause we approve. The fifth clause we have considered in connection with the others, and what we have said in regard to the others must be construed in connection with it. ... We are in fact recognized as a State for the single and sole purpose of working out our own destruction and dishonor. None of the benefits of that relation exist. In other words, we are recognized as a State for the highest purposes known to the Constitution, namely, its amendment; but we are not recognized as a State for any of the benefits resulting from that relation. Your committee for these reasons, among others, recommend that the House of Representatives do not ratify the proposed amendment.

House, December 1, 1866 *

Joint resolution in relation to the proposed Constitutional Amendment, Was read a third time and put upon its passage, upon which the vote was: [Yeas 49, Nays 0] So the resolution passed.

Senate, December 3, 1866 †

The Committee on Federal Relations, to which was referred so much of the Governor’s Message as relates to the Joint Resolution proposing an amendment to the constitution of the United States, respectfully

Report: That they have given the subject matter of this resolution the calmest consideration. They have endeavored to take into view every circumstance which now surrounds the political condition of the country and the State, and from correct premises to draw such conclusions in this all important matter as will satisfy the mind of every candid man and true statesman and lover of his country. They have thrown aside every prejudice, all malice and whatever other sentiments which have been created by the mighty revolution through which this country has passed, and as citizens of the State of Florida and the United States, have deliberated upon the right of amending the organic law of the land. Therefore, your committee submit the following reasons why, in their minds this amendment known as article XIV, of the Constitution of the United States should not be approved of by the Representatives of the State of Florida. Section I of this proposed article would confer upon Congress all the powers which are now supposed to appertain to the States.—From the moment of its engraftment upon the Constitution of the United States, the States would in effect cease to exist as bodies politic, for at the instant of its adoption a great central power, which is ever the enemy of freedom and advancement would exist at Washington. The Congress would under this section alone subvert and change the whole domestic economy of a State, regardless of the approval or disapproval of the people thereof; for in the construction of this section as those that follow, it becomes necessary to consider the fifth section to this proposed amend-

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* Florida House Journal 149 (1866). † Florida Senate Journal 101–3 (1866).

B. Ratification, doc. 43

ment and when we do that we are appalled, and well might the people of every State in this Union pause and consider as to the power which might be taken and seized under the head of “appropriate legislation.” Your committee, upon the matter of citizenship claim for the State that she has the right to judge as to who shall exercise the right of franchise within her limits and when she yields this right it must be wrested from her by superior force. Section II relates to representation. . . . Your committee do not think that to possess representation it is necessary to exercise the right of voting. If this theory is correct that only those should be represented that exercise the right of franchise, there would be no stopping its extension or making any exceptions. All in the body politic being represented, all should be voters. Such are the extremes to which such radical changes lead, and therefore the people of this State cling with tenacity to those principles and precedents which are to be traced back to the foundation of the Government. . . . Let this alteration be made in the organic system and some new and more startling demands may or may not be required by the predominant party previous to allowing the ten States now unlawfully and unconstitutionally deprived of their right of representation to enter the Halls of the National Legislature. Their right to representation is guarantied by the Constitution of this country and there is no act, not even that of rebellion, [that] can deprive them of its exercise. The sober, second thought of this great people must yet control the waves of fanaticism which would destroy a Government which has shown its strength and its power, and which awaits but the proper guides to make it the arbiter of the world’s destinies. In the consideration of the third section your committee can but express their entire disapprobation. Sweeping in its disfranchisements, were it a portion of the supreme law of the land, the country would deprive itself of the use of some of the most gifted minds of the age. The States would be unable from the number of their own citizens to select for any official position those whom they knew and whom they could trust. ... In the adoption of section fourth your committee would not object were it not for the accompanying sections. ... They have already expressed their opinion as to section fifth that is to be construed with each of the preceding sections. Therefore for these reasons without

considering as to whether this proposed amendment is constitutionally before us as representatives of the people of Florida, your committee recommend that the General Assembly of the State of Florida disapprove said proposed article XIV to the Constitution of the United States and that a Joint Resolution to that effect do pass

Senate, December 3, 1866 *

House joint resolutions in relation to the proposed constitutional amendment. Was read first time, rule waived, read second time and third times by their title and put upon their passage. The vote was: [Yeas 20, Nays 0] So the resolution passed title as stated.

43 Virginia, Gov. Francis H. Peirpoint’s Message to the Legislature, Alexandria Gazette December 4, 1866, p. 2†

The following is an abstract of the Message of Governor Peirpoint: ... The Secretary of State of the U.S. had forwarded to him a joint resolution of Congress proposing an amendment to the Constitution of the United States, which he submitted to them. The President had disapproved of it and insisted on the immediate admission of loyal Representatives duly elected. Some controversy had taken place as to what the President meant by loyal, some claiming that it was those who could take the prescribed oath. The elections had however resulted in a decisive majority in favor of the Congressional view. An effort was made to induce the Legislatures in some States to reject the Constitutional amendment, hoping to be more successful in a future contest, but he thought it very unlikely that such would be the result. The people of the South should not be again beguiled by professional friends at the North.

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* Florida Senate Journal 111 (1866). † [The message was dated December 3, 1866. —Ed.]

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The late elections showed that Congress was supported by a large majority of the people. He thought there was no hope of better terms. No political status has yet been given to those who had been in arms against the Government. Congress had denied the assumed right of the President to settle that status. No disgrace could be incurred by accepting the proposed terms; they were not nearly so hard as might be anticipated. Person and property were sacred, and the right of suffrage was left to them—should they not accept the amendment the result was uncertain. He left the whole subject with them, invoking the Divine blessing on their deliberations.*

and to inaugurate confusion, the end of which no human prescience can forsee. To-­day, the cardinal principle of restoration seems to be favorable action upon the proposed amendment, which I transmitted to you in my annual message. Upon the merits of that amendment, my views are already known. They are founded upon principle, and are unchanged. The necessity of the case, I am now constrained to think, is different. We should look our true condition full in the face. I therefore recommend anew to your consideration this measure, in the light in which it now presents itself, or such other measure as your wisdom may suggest. Should you see proper to ratify it, and our full restoration should follow, we may trust in time and the influence of our representatives to mitigate its harshness. If, on the other hand, admission be delayed, the warning to our sister States may be relied upon to prevent that concurrence on their part which alone can give the measure practical effect. Having done all, we may then commit our cause to a just God. R.M. Patton.

44 Alabama, Gov. Robert M. Patton’s Message to the Legislature, Rejection of the Fourteenth Amendment December 6 and 7, 1866

On motion from Mr. Barnes, The message was referred to the Committee on Federal Relations Yeas 24; nays 5.

Senate, December 6, 1866 †

Gentlemen of the Senate, and House of Representatives: Events of vast importance are now transpiring which bear with peculiar force upon the relation which Alabama sustains to the Union. To these events we cannot be indifferent; they are of such vital a character that we should give to them a calm and deliberate consideration. As the Chief Executive of the State, I deem it a duty under the constitution, to express in form, the apprehension, which you doubtless share with me, lest the stability of our affairs be suddenly broken up. There is an unmistakable purpose upon the part of those who control the National Legislature, to enforce at all hazards, their own terms of restoration. The measures they propose threaten to at once reverse our progress toward the establishment of that permanent tranquility which is so much desired by all. To do so, is to immeasurably augment the distress which now exists;

Senate, December 7, 1866 ‡

Mr. Barnes, from the Committee on Federal Relations, to which was referred the Governor’s message on the joint resolution of the Congress of the United States proposing amendments to the Constitution of the United States, reported that the committee were of the opinion, that the General Assembly should not ratify the said constitutional amendment, and therefore report the following resolutions: Resolved, by the Senate and House of Representatives of the State of Alabama in General Assembly convened, That the State of Alabama hereby refuses the proposed constitutional amendment as proposed by the Congress of the United States by joint resolution of said Congress at the last session thereof, to be numbered article 14 of said Constitution, consisting of five sections inclusive. Mr. Barnes moved to suspend the rule of the Senate

* [On January 8, 1867, the Virginia legislature voted to reject the proposed Fourteenth Amendment. See this section, doc. 54. —Ed.] † Alabama Senate Journal 176 (1866–67).

‡ Alabama Senate Journal 182–83 (1866–67).

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B. Ratification, doc. 45

requiring joint resolutions to be read on three several days, as in the case of bills having the force and effect of laws; Which was carried. Yeas 20, Nays 9. ... Mr. Barnes moved the previous question; Which was carried; And the question being on the adoption of the resolution, it was adopted. Yeas 28; nays 3.*

posed of two Senators from each State.” The proposition is not made to us by a Congress so composed; this State, with ten others, being denied representation in the body which proposed thus to amend the fundamental law. It was the clear intention of the Constitution that every State should have a right to representation in a Congress proposing alterations in the original articles of compact; and on this account, alone, no State, pretending to have rights under the Constitution, can, with proper scrupulousness or dignity, ratify an amendment thus proposed. ... If there be any feature in the American system of freedom which gives to it practical value, it is the fact that a municipal code is provided under the jurisdiction of each State, by which all controversies as to life, liberty or property, except in the now limited field of Federal jurisdiction, are determined by a jury of the county or neighborhood where the parties reside and the contest arises; but if Congress is hereafter to become the protector of life, liberty and property in the States, and the guarantor of equal protection of the laws, and, by appropriate legislation, to declare a system of rights and remedies, which can be administered only in the Federal Courts, then the most common and familiar officers of justice must be transferred to the few points in the State where those courts are held, and to judges and other offices, deriving and holding their commissions, not from the authority and people of the State as heretofore, but from the President and Senate of the United States. The States, as by so much, are to cease to be self-­ governing communities as heretofore, and trespasses against the person, assaults and batteries, false imprisonments and the like, where only our own citizens are parties, must be regulated by the Congress of the nation and adjudged only in its courts. I cannot believe that the deliberate judgment of the people of any State or any section will approve such an innovation, for although its annoyances may be ours to-­day, they must expect them to be theirs to-­morrow. ... Anxious as I was to avert the late war, and have at all times been to compose our troubles on the basis of the Union as our fathers framed it, I can perceive in this proposed amendment nothing calculated to perpetuate the Union; but its tendency seems to me better suited to perpetuate sectional alienation and estrangement, and, I have, therefore, no hesitation in recommending that it be not ratified.

45 North Carolina, Gov. Jonathan Worth’s Message to the Legislature, Joint Committee Report, Rejection of the Fourteenth Amendment November 20 and December 6, 1866

Governor’s Message, November 20, 1866 †

To the Honorable, the General Assembly of North Carolina: ... In June last, I received from the Hon. Wm. H. Seward, Secretary of State of the United States, a communication herewith transmitted to you, covering an attested copy of a joint resolution on Congress, proposing a fourteenth article, as an amendment to the Constitution of the United States. It proposes— ... ‡ The Constitution provides that “the House of Representatives shall be composed of members, chosen every second year by the people of the several States,” and that “the Senate of the United States shall be com-

* [On the same day, the Alabama House of Representatives voted 69 to 8 to adopt the Senate’s resolution rejecting the proposed Fourteenth Amendment. See Alabama House Journal 213 (1866). —Ed.] † Journal of the House of Commons of the General Assembly of the State of North Carolina 24–30 (1866–67). Available at https://books.google.com/books/about/Journal.html?id=6ok1 AQAAMAAJ. ‡ [The text of the Fourteenth Amendment appears here, broken down into eight sections. —Ed.]

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Senate, December 6, 1866 *

By Mr. Leach, from the Joint Select Committee on the Constitutional Amendment: S. 43, resolution rejecting the Amendment to the Constitution of the United States, submitted as Article 14th, with special report, as follows: The Joint Select Committee on Federal Relations to which was referred that part of the Governor’s message relating to a communication from the Hon. Wm. H. Seward, Secretary of State for the United States, covering an attested copy of a Joint Resolution of Congress, proposing a fourteenth article as an Amendment to the Constitution of the United States, to be submitted to this General Assembly for ratification or rejection, have had the same under consideration, and ask leave to report: The Committee, impressed with the importance of the subjects embraced in the proposed Constitutional Amendment, affecting the Commonwealth of North Carolina not merely for the present, but, in all human probability, for ages to come, have given the whole matter a careful and respectful consideration, and now offer the reasons for the conclusions at which they have arrived: A number of radical changes in the fundamental law of the country are proposed to be embraced in one Article, and to be accepted or rejected together, and if but one of these Amendments is disapproved, this General Assembly will be under the necessity of rejecting all; leaving no alternative of accepting some of the Sections in the proposed Article and rejecting others; and it is submitted that this mode of amending the Constitution of the United States is unwise, and without precedent, and ought not to find favor in any portion of this great nation. The Committee entertain the opinion that this proposition has not been submitted in a constitutional manner, and in pursuance of the forms prescribed by the Constitution. North Carolina, and her ten sister seceding States, have been repeatedly recognized as States in the Union, by all the Departments of the Federal Government, both during and since the war. . . . This recognition of them as States in the Union is now repeated by the Federal Government, in submitting to them for rati* Journal of the Senate of the General Assembly of the State of North Carolina 91 (1866–67). Available at https://books.google .com/books/about/Journal_of_the_Senate_of_the_General_ Ass.html?id=gsNKAQAAMAAJ.

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fication the pending proposition of Amendment, since only States in the Union can vote on such a question. The Federal Constitution declares, in substance, that Congress shall consist of a House of Representatives, composed of members apportioned among the respective States in the ratio of population, and a Senate, composed of two members from each State. And in the article which concerns Amendments, it is expressly provided that “no State, without its consent, shall be deprived of its equal suffrage in the Senate.” The contemplated Amendment was not proposed to the States by a Congress thus constituted. At the time of its adoption, the eleven seceding States were deprived of representation both in the Senate and House, although they all, except the State of Texas, had Senators and Representatives duly elected and claiming their privileges under the Constitution. In consequence of this, these States had no voice on the important question of proposing the Amendment. Had they been allowed to give their votes, the proposition would doubtless have failed to command the required two-­thirds majority. Had they voluntarily relinquished the exercise of their right and privilege in this matter, as they had done in the case of the late Amendment respecting slavery, they would, perhaps, be estopped from objecting to the regularity of the proceeding. But as their Senators and Representatives elect were seeking admission to their seats and were deprived of them without their consent, the subject is presented in a different light. ... The Committee are of the opinion that the Constitution was not complied with in another particular in the manner of proposing this Amendment. The third clause of section second, article first, provides that “every order, resolution or vote, to which the concurrence of the Senate and House of Representatives may be necessary, (except on a question of adjournment,) shall be presented to the President of the United States, and before the same shall take effect it shall be approved by him, or being disapproved by him, shall be repassed by two-­thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.” A proposition to amend the Constitution is certainly included in the terms of that provision, as being a matter requiring the concurrent action of both Houses. The pending Amendment, however, was never presented to the President, for his approval or disapproval, but sent directly to the Department of State, to be transmitted thence to the respective States.

B. Ratification, doc. 45

And it is far from a satisfactory answer to this, to say that because the proposition was originally passed by a two-­thirds majority it need not be presented to the President, since his disapproval could not affect it; for his disapproval might affect it when put upon its re-­ passage, after he had returned it with his objection— an occurrence not remarkable in the past history of the government. ... In the first section it is provided that “no State shall make any law which shall abridge the privileges or immunities of citizens of the United States.” What those privileges and immunities are, is not defined. Whether reference is had only to such privileges and immunities as may be supposed now to exist, or to all others which the Federal Government may hereafter declare to belong to it, or may choose to grant to citizens, is left in doubt, though the latter construction seems the more natural, and is one which that Government could at any time insist upon as correct and entirely consistent with the language used. With this construction placed upon it, what limit would remain to the power of that Government to interfere in the internal affairs of the States? . . . 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 Commonwealth. ... The power to regulate suffrage has always been claimed to belong to the several States, and it is thought by some, that this point is securely guarded by the provisions of the second section of the proposed Amendment; but a slight inspection will reveal the fact that the power of the States to regulate suffrage is by no means expressly recognized therein; nor is their right to “deny” or “abridge” the franchise distinctly set forth. . . . If the power of a State, over this subject, is recognized at all, it is only by implication, and an implication, to, which is conveyed solely in the language used for fixing a penalty upon the exercise of such power, and without saying whether its exercise may not hereafter be prohibited. . . . With the right of a State thus left doubtful, suppose the Federal Government, in the exercise of the power already spoken of as conferred by the first section of the Amendment, should think proper to declare that the right to vote is one of the “privileges” and “immuni-

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ties” of the citizen, what could a State do except to yield the point, and what would prevent universal suffrage from being at once inaugurated? Nothing. ... The manifest design of this provision is, to bring about, by indirect means, the adoption of universal suffrage, irrespective of race or color. And thus a premium is offered for the prostitution of the franchise. Nothing could be more threatening to the stability of our republican institutions. There can scarcely be a doubt that if the question of negro suffrage could be calmly considered purely on its own merits, and aside from the prejudices of the times, all thoughtful and well-­informed men would unite in condemning it as in the highest degree impolitic and unwise. A leading feature of this second section is, that, virtually, it makes the basis of representation to consist of the voters only, which is manifestly inconsistent with the theory of our political system. The voters are merely the appointing power, whose function is to select the representative; but his true constituency is the whole population. It is a great fallacy to maintain that an officer represents only those who vote for him. ... The third section of the Amendment is designed solely to affect the South. It virtually disfranchises a large portion of the people of North Carolina. It is well known that most of our able-­bodied men were Confederate soldiers during some part of the late war; and of those of our people who were not in the army, scarcely an individual can truthfully say that he rendered “no aid or comfort” to the Southern cause; and all who had ever previously taken an oath to support the Federal Constitution, either as a member of Congress, or as an officer of the United States, or as a member of a State Legislature, or Executive or Judicial officer of any State, are excluded from, forever hereafter, holding any office, either in the State or Federal Government, unless the disability is removed by a two-­thirds vote of both Houses of Congress. ... The immediate practical effect, therefore, of the Amendment, if ratified, will be to destroy the whole machinery of our State Government, and reduce all our affairs to complete chaos, by throwing out nearly every public officer, even to Justices of the Peace and Constables, and it would be hardly possible to find enough men qualified to fill those various offices, and reorganize our State Government.

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... But if this, and other degrading disabilities, must be imposed upon so many of her citizens, how can North Carolina herself, while she retains any sense of honor or self-­respect, assist in imposing it? How can those now controlling the destinies of the Union, ask or expect her to do so, and thus set the seal to her own disgrace? How can they expect or even desire that her Representatives, either now, or hereafter shall assist in the work of her own degradation? ... Proud of her sons who have died for her, she cherishes, in her heart of hearts, the living 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! ... For the reasons submitted in this report, the Committee respectfully recommend the adoption of the following resolution, to wit: Resolved, That the General Assembly of the State of North Carolina do not ratify the Amendment proposed as the fourteenth Article of the Constitution of the United States. ... The undersigned, a member of the Joint Select Committee on the “Howard Amendment,” dissents from the report of the Committee, believing it would be to the interest of the State of North Carolina, considering all the circumstances, to ratify the Amendment proposed as the fourteenth Article of the Constitution of the United States. P. A. Wilson*

* [On December 13, the North Carolina Senate adopted the committee resolution on a vote of 45 to 1. See North Carolina Senate Journal 138 (1866–67). The North Carolina House acted the same day, also voting in favor of the resolution rejecting the amendment, 93 to 10. See North Carolina House Journal 182 (1866–67). —Ed.]

46 Arkansas, Senate Committee Report, Rejection of the Fourteenth Amendment December 10, 1866†

Mr. President: The Committee on Federal Relations, to whom was referred so much of the message of his Excellency, the Governor, as relates to the proposed constitutional amendment, which is as follows: ... ‡ The committee having had the same under consideration, beg leave to report that, after a careful and anxious consideration of the whole matter, such constitutional amendment ought to be rejected, and they recommend its rejection. It is not known, nor can it be known to the State of Arkansas, that the proposed constitutional amendment was ever acted on by a Congress under and according to the Constitution of the United States, when nearly one-­ third of the States were refused representation in Congress. The proposed amendment was never submitted to the President of the United States for his sanction. The great and enormous power sought to be conferred on Congress, under the amendment, which gives that body authority to enforce by appropriate legislation the provisions of the first article of the amendment, in effect, takes from the States all control over all the people in their local and their domestic concerns, and virtually abolishes the States. The second section, in the minds of the committee, is but an effort to force negro suffrage upon the States; and, whether intended or not, it leaves the power to bring this about, whether the States consent or not, and the committee are of the opinion that every State Legislature should shrink at once from ever permitting by their voice the possibility of such a calamity.

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† Arkansas Senate Journal 258–62 (1866–67). [For a paraphrased version of the Senate committee report, see the Weekly Arkansas Gazette (Little Rock, AR), Dec. 18, 1866, 2. —Ed.] ‡ [The text of the Fourteenth Amendment appears here. —Ed.]

B. Ratification, doc. 47

The third section of the proposed amendment is an act of disfranchisement which would embrace many of our best and wisest citizens, for there are but few that have not at times or in some shape taken an oath to support the Constitution of the United States. The committee cannot consent thus to brand by thousands the people of the State, who have struggled in a cause dear to them, like patriots, who have yielded to the fate of war as brave and magnanimous people only can do. In considering this amendment, the committee have been struck by one feature of the first section, in particular, and to this they call the attention of the Senate: “Nor shall any State deprive any person of life, liberty or property without due process of law.” This is almost identical with the language contained in the fifth amendment to the Constitution. And this amendment was intended, by our wise and good Congress, to operate on the States and on Congress; and, if this be not enough already, surely no additional amendment will do any good. If the one now existing be disregarded, will not this one be ignored? The committee may not know what was intended by this part of the amendment, but, as advised, they would not consent to engraft upon the Constitution an amendment now forming part of that instrument, in as strong and apt language as this, and as broad as can be. The committee are unwilling to approve this amendment because it imposes new and additional obligations and burdens upon our people, not contemplated at the surrender of the troops of the Confederate States, and not contemplated or intended when the general amnesty was proclaimed on 29th May, 1865. ... It does appear then, to the committee, that this amendment is at least ungenerous to a people who have been in all things so true to their surrender. That is still more so since, if adopted, there is then no certainty that the States are or will be restored to the Union. The committee, of course, cannot tell what may be in store for the State. She and others may be forced to take this amendment, and even harsher terms, before a restoration to the Union occurs; but, as valuable as restoration may be, they cannot agree to purchase it at such a sacrifice of principle, of dignity and of self-­ respect. While our people bear troubles, trials and deprivations and wrongs, if you please, in dignified silence, and submit to all, the committee cannot and will not advise them to an act of disgrace, if not annihilation, as would

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be the result should this amendment be adopted by an act of the Legislature. If the Congress of the United States persist in denying us representation, without the ratification of the proposed constitutional amendment, then and in that event the committee can only counsel a quiet and dignified course of conduct, to submit to what may be thrust upon them, but not by word or act contribute to their own downfall or affliction. Having in this report considered the matter submitted to them, the committee ask leave to submit the accompanying resolution, and recommend its adoption. W. W. Watkins, Chairman.

Resolved, That the General Assembly of the State of Arkansas declines to ratify the amendment adding article fourteen to the Constitution of the United States, as proposed by joint resolution of Congress. Watkins, Chairman.*

47 South Carolina, Gov. James Orr’s Message to the Legislature, Rejection of the Fourteenth Amendment November 27, 1866†

Gentlemen of the Senate and House of Representatives: ... I transmit herewith a communication from the Hon. Wm. H. Seward covering the Constitutional amendment proposed to the several States of the Union, by the Congress of the United States. History furnishes few examples of a people who have been required to concede more to the will of their conquerors than the people of the South. Every concession we have made, however, so far from touching the magnanimity or generosity of * [On December 10, the same day it received the committee report, the Arkansas Senate voted 24 to 1 to adopt the resolution rejecting the amendment. See Arkansas Senate Journal 262 (1866–67). On December 17, 1866, the Arkansas House voted to accept the resolution, 68 to 2. See Arkansas House Journal 291 (1866–67). —Ed.] † South Carolina House Journal 14, 32–35 (1866).

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from the Southern States were prepared to take the test oath, but even these have been persistently ignored, and kept out of the seats to which they were entitled under the Constitution and laws. Hence, this amendment has not been proposed by “two-­thirds of both Houses” of a legally constituted Congress, and is not, Constitutionally or legitimately, before a single Legislature for ratification. Waiving this point, however, is it compatible with the interest, or consistent with the honor of the State, to ratify the amendment? Do not its first and last sections, if adopted, confer upon Congress the absolute right of determining who shall be citizens of the respective States, and who shall exercise the elective franchise and enjoy all of the rights, privileges and immunities of citizenship? The sections referred to not only do this, but they subvert the theory and practice of the Government since its foundation, by abrogating the right of fixing the elective franchise conferred upon the respective State Governments, and by giving the representatives of Oregon or California in Congress the power to declare what shall constitute the measure of citizenship within the limits of South Carolina or Georgia. . . . With this amendment incorporated in the Constitution, 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? Nay, more; does not its adoption reverse the well-­approved doctrine, that the United States shall exercise no powers, unless expressly delegated by the Con­stitution? The third section, if its spirit were carried out, would not only disorganize the State Government in all of its departments, but would render it impossible for the people of South Carolina, at least, to re-­organize a government until Congress, by two-­thirds vote in the case of each individual person, removes the disability. ... There are other objections of a grave character which might be urged; and among these it may be mentioned, that if the amendment is adopted, we not only have no guarantee that our representatives would be admitted to Congress, but there are unmistakable indications that they would still be excluded. It is unnecessary, however, to dwell upon a subject which has been so far decided by the public opinion of the people of the State, that I am justified in saying, that if the Constitutional amendment is to be adopted, let it be done by the irresponsible power of numbers, and let us preserve our

the victors, has sharpened their malice and intensified their revenge. ... We were required to abolish slavery, which had existed for two hundred years, and was intimately interwoven with the whole social, industrial and financial fabric of the State. We obeyed. When the Legislature assembled, we were required to ratify the Constitutional amendment abolishing slavery in the United States, and were made, in part, instruments to accomplish that result in Kentucky and Delaware, when those States had refused to do so of their own volition. We obeyed. . . . In addition to all this, the General Assembly of the State has by solemn enactment, accorded to the Black race all the rights of person and property enjoyed by the white race. They can buy and sell, grant, convey and devise. If their person or personal rights are invaded, the same judicial tribunals vindicate them. They go upon the witness stand and testify; they are permitted to testify in their own cases, even when on trial for grave offenses. How many of the States now enjoying a representation in that Congress which proposes this amendment to us for ratification accord by their own laws the same general rights and privileges to the black man? They have but a meagre number of negroes in their midst, and if allowed to vote, their ignorance and depravity would produce no appreciable effect upon the result, being less than one-­and-­one-­eighth per cent. of the voting population, whereas their relative number here is as forty one blacks to thirty whites. Do sensible, fair and just men in the North desire that these people, without information or education— steeped in ignorance, crime and vice, should go to the polls and elect men to Congress who are to pass laws taxing and governing them? ... Eleven of the Southern States, including South Carolina, are deprived of their representation in Congress. Although their Senators and Representatives have been duly elected and have presented themselves for the purpose of taking their seats, their credentials have, in most instances, been laid upon the table without being read, or have been referred to a committee who have failed to make any report on the subject. In short, Congress has refused to exercise its Constitutional functions, and decide either upon the election, the return, or the qualification of these selected by the States and people to represent us. Some of the Senators and Representatives 314

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own self-­respect, and the respect of our posterity, by refusing to be the mean instruments of our own shame. ... James L. Orr.*

since his imprisonment, no bill of indictment has been found or presentment made against him by any grand jury of the United States. Milligan insists that said military commission had no jurisdiction to try him upon the charges preferred, or upon any charges whatever; because he was a citizen of the United States and the State of Indiana, and had not been, since the commencement of the late Rebellion, a resident of any of the States whose citizens were arrayed against the government, and that the right of trial by jury was guaranteed to him by the Constitution of the United States. The prayer of the petition was, that under the act of Congress, approved March 3d, 1863, entitled, ‘An act relating to habeas corpus and regulating judicial proceedings in certain cases,’ he may be brought before the court, and either turned over to the proper civil tribunal to be proceeded against according to the law of the land or discharged from custody altogether. ... The controlling question in the case is this: Upon the facts stated in Milligan’s petition, and the exhibits filed, had the military commission mentioned in it jurisdiction, legally, to try and sentence him? Milligan, not a resident of one of the rebellious states, or a prisoner of war, but a citizen of Indiana for twenty years past, and never in the military or naval service, is, while at his home, arrested by the military power of the United States, imprisoned, and, on certain criminal charges preferred against him, tried, convicted, and sentenced to be hanged by a military commission, organized under the direction of the military commander of the military district of Indiana. Had this tribunal the legal power and authority to try and punish this man? No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole people; for it is the birthright of every American citizen when charged with crime, to be tried and punished according to law. The power of punishment is, alone through the means which the laws have provided for that purpose, and if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be, or how much his crimes may have shocked the sense of justice of the country, or endangered its safety. By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people. If there was law to jus-

48 Ex parte Milligan 71 U.S. 2 (1866)

Mr. Justice DAVIS delivered the opinion of the court. On the 10th day of May, 1865, Lambdin P. Milligan presented a petition to the Circuit Court of the United States for the District of Indiana, to be discharged from an alleged unlawful imprisonment. The case made by the petition is this: Milligan is a citizen of the United States; has lived for twenty years in Indiana; and, at the time of the grievances complained of, was not, and never had been in the military or naval service of the United States. On the 5th day of October, 1864, while at home, he was arrested by order of General Alvin P. Hovey, commanding the military district of Indiana; and has ever since been kept in close confinement. On the 21st day of October, 1864, he was brought before a military commission, convened at Indianapolis, by order of General Hovey, tried on certain charges and specifications; found guilty, and sentenced to be hanged; and the sentence ordered to be executed on Friday, the 19th day of May, 1865. On the 2d day of January, 1865, after the proceedings of the military commission were at an end, the Circuit Court of the United States for Indiana met at Indianapolis and empanelled a grand jury, who were charged to inquire whether the laws of the United States had been violated; and, if so, to make presentments. The court adjourned on the 27th day of January, having, prior thereto, discharged from further service the grand jury, who did not find any bill of indictment or make any presentment against Milligan for any offence whatever; and, in fact, * [On December 19, the South Carolina House voted 95 to 1 to approve a resolution rejecting the proposed constitutional amendment. See South Carolina House Journal 284 (1866). The Senate adopted the same proposal the next day. See South Carolina Senate Journal 230 (1866). —Ed.] 315

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tify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle; and secured in a written constitution every right which the people had wrested from power during a contest of ages. By that Constitution and the laws authorized by it this question must be determined. The provisions of that instrument on the administration of criminal justice are too plain and direct, to leave room for misconstruction or doubt of their true meaning. Those applicable to this case are found in that clause of the original Constitution which says, ‘That the trial of all crimes, except in case of impeachment, shall be by jury;’ and in the fourth, fifth, and sixth articles of the amendments. The fourth proclaims the right to be secure in person and effects against unreasonable search and seizure; and directs that a judicial warrant shall not issue ‘without proof of probable cause supported by oath or affirmation.’ The fifth declares ‘that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger, nor be deprived of life, liberty, or property, without due process of law.’ And the sixth guarantees the right of trial by jury, in such manner and with such regulations that with upright judges, impartial juries, and an able bar, the innocent will be saved and the guilty punished. It is in these words: ‘In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.’ These securities for personal liberty thus embodied, were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication, that when the original

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Constitution was proposed for adoption it encountered severe opposition; and, but for the belief that it would be so amended as to embrace them, it would never have been ratified. Time has proven the discernment of our ancestors; for even these provisions, expressed in such plain English words, that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority. Have any of the rights guaranteed by the Constitution been violated in the case of Milligan? And if so, what are they? Every trial involves the exercise of judicial power; and from what source did the military commission that tried him derive their authority? Certainly no part of judicial power of the country was conferred on them; because the Constitution expressly vests it ‘in one supreme court and such inferior courts as the Congress may from time to time ordain and establish,’ and it is not pretended that the commission was a court ordained and established by Congress. They cannot justify on the mandate of the President; because he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws; and there is ‘no unwritten criminal code to which resort can be had as a source of jurisdiction.’ But it is said that the jurisdiction is complete under the ‘laws and usages of war.’

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It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that in Indiana the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances; and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no such power; and to the honor of our national legislature be it said, it has never been provoked by the state of the country even to attempt its exercise. One of the plainest constitutional provisions was, therefore, infringed when Milligan was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior. Why was he not delivered to the Circuit Court of Indiana to be proceeded against according to law? No reason of necessity could be urged against it; because Congress had declared penalties against the offences charged, provided for their punishment, and directed that court to hear and determine them. And soon after this military tribunal was ended, the Circuit Court met, peacefully transacted its business, and adjourned. It needed no bayonets to protect it, and required no military aid to execute its judgments. It was held in a state, eminently distinguished for patriotism, by judges commissioned during the Rebellion, who were provided with juries, upright, intelligent, and selected by a marshal appointed by the President. The government had no right to conclude that Milligan, if guilty, would not receive in that court merited punishment; for its records disclose that it was constantly engaged in the trial of similar offences, and was never interrupted in its administration of criminal justice. If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty, because he ‘conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection,’ the law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended.

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Another guarantee of freedom was broken when Milligan was denied a trial by jury. The great minds of the country have differed on the correct interpretation to be given to various provisions of the Federal Constitution; and judicial decision has been often invoked to settle their true meaning; but until recently no one ever doubted that the right of trial by jury was fortified in the organic law against the power of attack. It is now assailed; but if ideas can be expressed in words, and language has any meaning, this right—one of the most valuable in a free country—is preserved to every one accused of crime who is not attached to the army, or navy, or militia in actual service. The sixth amendment affirms that ‘in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury,’ language broad enough to embrace all persons and cases; but the fifth, recognizing the necessity of an indictment, or presentment, before any one can be held to answer for high crimes, ‘excepts cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger;’ and the framers of the Constitution, doubtless, meant to limit the right of trial by jury, in the sixth amendment, to those persons who were subject to indictment or presentment in the fifth. The discipline necessary to the efficiency of the army and navy required other and swifter modes of trial than are furnished by the common law courts; and, in pursuance of the power conferred by the Constitution, Congress has declared the kinds of trial, and the manner in which they shall be conducted, for offences committed while the party is in the military or naval service. Every one connected with these branches of the public service is amenable to the jurisdiction which Congress has created for their government, and, while thus serving, surrenders his right to be tried by the civil courts. All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity. When peace prevails, and the authority of the government is undisputed, there is no difficulty of preserving the safeguards of liberty; for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion— if the passions of men are aroused and the restraints of law weakened, if not disregarded—these safeguards need, and should receive, the watchful care of those in-

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trusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution. It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that in a time of war the commander of an armed force (if in his opinion the exigencies of the country demand it, and of which he is to judge), has the power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his will; and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States. If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules. The statement of this proposition shows its importance; for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law, established on such a basis, destroys every guarantee of the Constitution, and effectually renders the ‘military independent of and superior to the civil power’— the attempt to do which by the King of Great Britain was deemed by our fathers such an offence, that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish. This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew—the history of the world told them—the nation they were

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founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain, by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President, or Congress, or the Judiciary disturb, except the one concerning the writ of habeas corpus. It is essential to the safety of every government that, in a great crisis, like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character, wicked enough to counsel their fellow-­citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies; and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible; and yet, the peril to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested in answer to a writ of habeas corpus. The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But, it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so. It will be borne in mind that this is not a question of the power to proclaim martial law, when war exists in a

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community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on states in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service, during the late Rebellion, required that the loyal states should be placed within the limits of certain military districts and commanders appointed in them; and, it is urged, that this, in a military sense, constituted them the theater of military operations; and, as in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and with it all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration. It is difficult to see how the safety for the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal; and as there could be no wish to convict, except on sufficient legal evidence, surely an ordained and establish court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law. It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unob-

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structed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a necessity in one state, when, in another, it would be ‘mere lawless violence.’ We are not without precedents in English and American history illustrating our views of this question; but it is hardly necessary to make particular reference to them. From the first year of the reign of Edward the Third, when the Parliament of England reversed the attainder of the Earl of Lancaster, because he could have been tried by the courts of the realm, and declared, ‘that in time of peace no man ought to be adjudged to death for treason or any other offence without being arraigned and held to answer; and that regularly when the king’s courts are open it is a time of peace in judgment of law,’ down to the present day, martial law, as claimed in this case, has been condemned by all respectable English jurists as contrary to the fundamental laws of the land, and subversive of the liberty of the subject. During the present century, an instructive debate on this question occurred in Parliament, occasioned by the trial and conviction by court-­martial, at Demerara, of the Rev. John Smith, a missionary to the negroes, on the alleged ground of aiding and abetting a formidable rebellion in that colony. Those eminent statesmen, Lord Brougham and Sir James Mackintosh, participated in that debate; and denounced the trial as illegal; because it did not appear that the courts of law in Demerara could not try offences, and that ‘when the laws can act, every other mode of punishing supposed crimes is itself an enormous crime.’ So sensitive were our Revolutionary fathers on this subject, although Boston was almost in a state of siege, when General Gage issued his proclamation of martial law, they spoke of it as an ‘attempt to supersede the course of the common law, and instead thereof to publish and order the use of martial law.’ The Virginia Assembly, also, denounced a similar measure on the part of Governor Dunmore ‘as an assumed power, which the king himself cannot exercise; because it annuls the law of the land and introduces the most execrable of all systems, martial law.’

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We do not deem it important to examine further the adjudged cases; and shall, therefore, conclude without any additional reference to authorities. To the third question, then, on which the judges below were opposed in opinion, an answer in the negative must be returned. It is proper to say, although Milligan’s trial and conviction by a military commission was illegal, yet, if guilty of the crimes imputed to him, and his guilt had been ascertained by an established court and impartial jury, he deserved severe punishment. Open resistance to the measures deemed necessary to subdue a great rebellion, by those who enjoy the protection of government, and have not the excuse even of prejudice of section to plead in their favor, is wicked; but that resistance becomes an enormous crime when it assumes the form of a secret political organization, armed to oppose the laws, and seeks by stealthy means to introduce the enemies of the country into peaceful communities, there to light the torch of civil war, and thus overthrow the power of the United States. Conspiracies like these, at such a juncture, are extremely perilous; and those concerned in them are dangerous enemies to their country, and should receive the heaviest penalties of the law, as an example to deter others from similar criminal conduct. It is said the severity of the laws caused them; but Congress was obliged to enact severe laws to meet the crisis; and as our highest civil duty is to serve our country when in danger, the late war has proved that rigorous laws, when necessary, will be cheerfully obeyed by a patriotic people, struggling to preserve the rich blessings of a free government. The two remaining questions in this case must be answered in the affirmative. The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on the return made to it the court decides whether the party applying is denied the right of proceeding any further with it. If the military trial of Milligan was contrary to law, then he was entitled, on the facts stated in his petition, to be discharged from custody by the terms of the act of Congress of March 3d, 1863. The provisions of this law having been considered in a previous part of this opinion, we will not restate the views there presented. Milligan avers he was a citizen of Indiana, not in the military or naval service, and was detained in close confinement, by order of the President, from the 5th day of October,

In some parts of the country, during the war of 1812, our officers made arbitrary arrests and, by military tribunals, tried citizens who were not in the military service. These arrests and trials, when brought to the notice of the courts, were uniformly condemned as illegal. The cases of Smith v. Shaw and McConnell v. Hampden (reported in 12 Johnson), are illustrations, which we cite, not only for the principles they determine, but on account of the distinguished jurists concerned in the decisions, one of whom for many years occupied a seat on this bench. It is contended, that Luther v. Borden, decided by this court, is an authority for the claim of martial law advanced in this case. The decision is misapprehended. That case grew out of the attempt in Rhode Island to supersede the old colonial government by a revolutionary proceeding. Rhode Island, until that period, had no other form of local government than the charter granted by King Charles II, in 1663; and as that limited the right of suffrage, and did not provide for its own amendment, many citizens became dissatisfied, because the legislature would not afford the relief in their power; and without the authority of law, formed a new and independent constitution, and proceeded to assert its authority by force of arms. The old government resisted this; and as the rebellion was formidable, called out the militia to subdue it, and passed an act declaring martial law. Borden, in the military service of the old government, broke open the house of Luther, who supported the new, in order to arrest him. Luther brought suit against Borden; and the question was, whether, under the constitution and laws of the state, Borden was justified. This court held that a state ‘may use its military power to put down an armed insurrection too strong to be controlled by the civil authority;’ and, if the legislature of Rhode Island thought the peril so great as to require the use of its military forces and the declaration of martial law, there was no ground on which this court could question its authority; and as Borden acted under military orders of the charter government, which had been recognized by the political power of the country, and was upheld by the state judiciary, he was justified in breaking into and entering Luther’s house. This is the extent of the decision. There was no question in issue about the power of declaring martial law under the Federal Constitution, and the court did not consider it necessary even to inquire ‘to what extent nor under what circumstances that power may by exercised by a state.’ 320

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1864, until the 2d day of January, 1865, when the Circuit Court for the District of Indiana, with a grand jury, convened in session at Indianapolis; and afterwards, on the 27th day of the same month, adjourned without finding an indictment or presentment against him. If these averments were true (and their truth is conceded for the purposes of this case), the court was required to liberate him on taking certain oaths prescribed by the law, and entering into recognizance for his good behavior. But it is insisted that Milligan was a prisoner of war, and, therefore, excluded from the privileges of the statute. It is not easy to see how he can be treated as a prisoner of war, when he lived in Indiana for the past twenty years, was arrested there, and had not been, during the late troubles, a resident of any of the states in rebellion. If in Indiana he conspired with bad men to assist the enemy, he is punishable for it in the courts of Indiana; but, when tried for the offence, he cannot plead the rights of war; for he was not engaged in legal acts of hostility against the government, and only such persons, when captured, are prisoners of war. If he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties? This case, as well as the kindred cases of Bowles and Horsey, were disposed of at the last term, and the proper orders were entered of record. There is, therefore, no additional entry required.

We agree in the proposition that no department of the government of the United States—neither President, nor Congress, nor the Courts—possesses any power not given by the Constitution. We assent, fully, to all that is said, in the opinion, of the inestimable value of the trial by jury, and of the other constitutional safeguards of civil liberty. And we concur, also, in what is said of the writ of habeas corpus, and of its suspension, with two reservations: (1.) That, in our judgment, when the writ is suspended, the Executive is authorized to arrest as well as to detain; and (2.) that there are cases in which, the privilege of the writ being suspended, trial and punishment by military commission, in states where civil courts are open, may be authorized by Congress, as well as arrest and detention. We think that Congress had power, though not exercised, to authorize the military commission which was held in Indiana. ... Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-­in-­chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions. The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people, whose will is expressed in the fundamental law. Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature.

The CHIEF JUSTICE delivered the following opinion. Four members of the court, concurring with their brethren in the order heretofore made in this cause, but unable to concur in some important particulars with the opinion which has just been read, think it their duty to make a separate statement of their views of the whole case. We do not doubt that the Circuit Court for the District of Indiana had jurisdiction of the petition of Milligan for the writ of habeas corpus. ... [T]he opinion which has just been read . . . asserts not only that the military commission held in Indiana was not authorized by Congress, but that it was not in the power of Congress to authorize it; from which it may be thought to follow, that Congress has no power to indemnify the officers who composed the commission against liability in civil courts for acting as members of it. We cannot agree to this.

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We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists. Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what states or district such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety. ... There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under MILITARY LAW, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as MILITARY GOVERNMENT, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated MARTIAL LAW PROPER, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights. We think that the power of Congress, in such times and in such localities, to authorize trials for crimes against the security and safety of the national forces, may be derived from its constitutional authority to raise and support armies and to declare war, if not from its constitutional authority to provide for governing the national forces. We have no apprehension that this power, under our American system of government, in which all official authority is derived from the people, and exercised

under direct responsibility to the people, is more likely to be abused than the power to regulate commerce, or the power to borrow money. And we are unwilling to give our assent by silence to expressions of opinion which seem to us calculated, though not intended, to cripple the constitutional powers of the government, and to augment the public dangers in times of invasion and rebellion. Mr. Justice WAYNE, Mr. Justice SWAYNE, and Mr. Justice MILLER concur with me in these views.

49 Reported Meeting between President Andrew Johnson and South Carolina Commissioner Colonel T. Weatherby, New York Herald December 28, 1866, p. 5

Report of South Carolina Commissioner to Washington—How He Was Received and What Was Said by the President and the Radicals.

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Washington, Dec. 27, 1866 The Charleston (S.C.) Courier of Tuesday, noticing the various newspaper reports about a South Carolina commissioner to Washington, says:— It appears that prior to the close of the session of our Legislature, which adjourned on Friday last, a large majority of the Senate consulted together as to the propriety of sending a member of that body to Washington to confer with the President on the probability of the State being restored to its place in the Union should she adopt the constitutional amendment. After consulting it was decided that some good might accrue from the pursuance of such a course, and one of their number was selected for the mission. The gentleman selected was Colonel T. Weatherby, Senator from the Marlboro district, who immediately proceeded to Washington and sought an interview with the President. Upon his arrival he found that the President was occupied in a Cabinet meeting, and being disengaged he determined to make good use of his leisure moments by obtaining interviews with the leading radical members of both houses of Congress, and conversing with them freely upon the

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subject of the constitutional amendment and the prospect of the admission of South Carolina to her rights upon its adoption. Colonel Weatherby succeeded in making the acquaintance of several of the leading radical Senators and representatives, with whom he conversed freely, and was assured by them that the constitutional amendment was the ultimatum of Congress to the Southern States, and that its adoption by them would remove all obstacles to their being admitted to representation in Congress. Colonel Weatherby, however, had a subsequent interview with President Johnson, to whom he had been formerly deputed. We learn that the interview with the President was of some duration, as well as free and candid, during which he expressed the hope that the Southern States would remain firm in their position as regards the constitutional amendment and steadfastly reject it, believing it to be an advance step to the inauguration of a despotism, in doing which, he said, he hoped they would be guarded in their reasons assigned for its rejection, and avoid any language that might by any possible means be tortured to give offense to the opposing party. The President feels confident, from a recent decision given by the Supreme Court,* that he will be sustained by that law-­abiding body, and that in a short time a returning sense of reason will point out some middle ground between the constitutional amendment and the projected territorial scheme upon which our country may become united, when peace will again smile upon us with all its blessings.

* [A reference to Ex parte Milligan (this section, doc. 48) handed down by the Supreme Court on December 17, 1866. In the decision, Justice Davis had announced that “martial rule can never exist when the courts are open.” Although decided in reference to President Lincoln’s unilateral decision to suspend the writ of habeas corpus, it was possible that the Supreme Court, in a future case, would extend its decision and invalidate Congress’s continued militarization of the former rebel states. —Ed.]

50 Frederick Douglass, “An Appeal to Congress for Impartial Suffrage,” Atlantic Monthly January 1867†

A very limited statement of the argument for impartial suffrage, and for including the negro in the body politic, would require more space than can be reasonably asked here. It is supported by reasons as broad as the nature of man, and as numerous as the wants of society. Man is the only government-­making animal in the world. His right to a participation in the production and operation of government is in inference from his nature, as direct and self-­evident as is his right to acquire property or education. It is no less a crime against the manhood of a man, to declare that he shall not share in the making and directing of the government under which he lives, than to say that he shall not acquire property and education. The fundamental and unanswerable argument in favor of the enfranchisement of the negro is found in the undisputed fact of his manhood. He is a man, and by every fact and argument by which any man can sustain his right to vote, the negro can sustain his right equally. It is plain that, if the right belongs to any, it belongs to all. The doctrine that some men have no rights that others are bound to respect is a doctrine which we must banish, as we have banished slavery, from which it emanated. If black men have no rights in the eyes of white men, of course the white can have none in the eyes of the blacks. The result is a war of races, and the annihilation of all proper human relations. But suffrage for the negro, while easily sustained upon abstract principles, demands consideration upon what are recognized as the urgent necessities of the case. It is a measure of relief,—a shield to break the force of a blow already descending with violence, and render it harmless. The work of destruction has already been set in motion all over the South. Peace to the country has literally meant war to the loyal men of the South, white and black; and negro suffrage is the measure to arrest and put an end to that dreadful strife. 323

† Atlantic Monthly 19 (Jan. 1867), 112–17.

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Something then, not by way of argument, (for that has been done by Charles Sumner, Thaddeus Stevens, Wendell Phillips, Gerrit Smith, and other able men,) but rather of statement and appeal. For better or for worse, (as in some of the old marriage ceremonies,) the negroes are evidently a permanent part of the American population. They are too numerous and useful to be colonized, and too enduring and self-­perpetuating to disappear by natural causes. Here they are, four millions of them, and, for weal or for woe, here they must remain. Their history is parallel to that of the country; but while the history of the latter has been cheerful and bright with blessing, theirs has been heavy and dark with agonies and curses. What O’Connell said of the history of Ireland may with greater truth be said of the negro’s. It may be “traced like a wounded man through a crowd, by the blood.” Yet the negroes have marvelously survived all the exterminating forces of slavery, and have emerged at the end of two hundred and fifty years of bondage, not morose, misanthropic, and revengeful, but cheerful, hopeful, and forgiving. They now stand before Congress and the country, not complaining of the past, but simply asking for a better future. The spectacle of these dusky millions thus imploring, not demanding, is touching; and if American statesmen could be moved by a simple appeal to the nobler elements of human nature, if they had not fallen, seemingly, into the incurable habit of weighing and measuring every proposition of reform by some standard of profit and loss, doing wrong from choice, and right only from necessity or some urgent demand of human selfishness, it would be enough to plead for the negroes on the score of past services and sufferings. But no such an appeal shall be relied on here. Hardships, services, sufferings, and sacrifices are all waived. It is true that they came to the relief of the country at the hour of its extremest need. It is true that, in many of the rebellious States, they were almost the only reliable friends the nation had throughout the whole tremendous war. It is true that, notwithstanding their alleged ignorance, they were wiser than their masters, and knew enough to be loyal, while those masters only knew enough to be rebels and traitors. It is true that they fought side by side in the loyal cause with our gallant and patriotic white soldiers, and that, but for their help,—divided as the loyal States were,—the Rebels might have succeeded in breaking up the Union, thereby entailing border wars and troubles of unknown duration and incalculable calamity. All this and more is true of these loyal negroes.

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Many daring exploits will be told to their credit. Impartial history will paint them as men who deserved well of their country. It will tell how they forded and swam rivers, with what consummate address they evaded the sharp-­eyed Rebel pickets, how they toiled in the darkness of night through the tangled marshes of briers and thorns, barefooted and weary, running the risk of losing their lives, to warn our generals of Rebel schemes to surprise and destroy our loyal army. It will tell how these poor people, whose rights we still despised, behaved to our wounded soldiers, when found cold, hungry, and bleeding on the deserted battlefield; how they assisted our escaping prisoners from Andersonville, Belle Isle, Castle Thunder, and elsewhere, sharing with them their wretched crusts, and otherwise affording them aid and comfort; how they promptly responded to the trumpet call for their services, fighting against a foe that denied them the rights of civilized warfare, and for a government which was without the courage to assert those rights and avenge their violation in their behalf; with what gallantry they flung themselves upon Rebel fortifications, meeting death as fearlessly as any other troops in the service. But upon none of these things is reliance placed. These facts speak to the better dispositions of the human heart; but they seem of little weight with the opponents of impartial suffrage. It is true that a strong plea for equal suffrage might be addressed to the national sense of honor. Something, too, might be said of national gratitude. A nation might well hesitate before the temptation to betray its allies. There is something immeasurably mean, to say nothing of the cruelty, in placing the loyal negroes of the South under the political power of their Rebel masters. To make peace with our enemies is all well enough; but to prefer our enemies and sacrifice our friends,—to exalt our enemies and cast down our friends,—to clothe our enemies, who sought the destruction of the government, with all political power, and leave our friends powerless in their hands,—is an act which need not be characterized here. We asked the negroes to espouse our cause, to be our friends, to fight for us and against their masters; and now, after they have done all that we asked them to do,—helped us to conquer their masters, and thereby directed toward themselves the furious hate of the vanquished,—it is proposed in some quarters to turn them over to the political control of the common enemy of the government and of the negro. But of this let nothing be said in this place. Waiving humanity, national honor, the claims of gratitude, the precious satisfaction arising

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from deeds of charity and justice to the weak and defenseless,—the appeal for impartial suffrage addresses itself with great pertinence to the darkest, coldest, and flintiest side of the human heart, and would wring righteousness from the unfeeling calculations of human selfishness. For in respect to this grand measure it is the good fortune of the negro that enlightened selfishness, not less than justice, fights on his side. National interest and national duty, if elsewhere separated, are firmly united here. The American people can, perhaps, afford to brave the censure of surrounding nations for the manifest injustice and meanness of excluding its faithful black soldiers from the ballot-­box, but it cannot afford to allow the moral and mental energies of rapidly increasing millions to be consigned to hopeless degradation. Strong as we are, we need the energy that slumbers in the black man’s arm to make us stronger. We want no longer any heavy-­footed, melancholy service from the negro. We want the cheerful activity of the quickened manhood of these sable millions. Nor can we afford to endure the moral blight which the existence of a degraded and hated class must necessarily inflict upon any people among whom such a class may exist. Exclude the negroes as a class from political rights—teach them that the high and manly privilege of suffrage is to be enjoyed by white citizens only,—that they may bear the burdens of the state, but that they are to have no part in its direction or its honors,—and you at once deprive them of one of the main incentives to manly character and patriotic devotion to the interests of the government; in a word, you stamp them as a degraded caste, you teach them to despise themselves, and all others to despise them. Men are so constituted that they largely derive their ideas of their abilities and their possibilities from the settled judgements of their fellow-­men, and especially from such as they read in the institutions under which they live. If these bless them, they are blest indeed; but if these blast them, they are blasted indeed. Give the negro the elective franchise, and you give him at once a powerful motive for all noble exertion, and make him a man among men. A character is demanded of him, and here as elsewhere demand favors supply. It is nothing against this reasoning that all men who vote are not good men or good citizens. It is enough that the possession and exercise of the elective franchise is in itself an appeal to the nobler elements of manhood, and imposes education as essential to the safety of society. To appreciate the full force of this argument, it must

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be observed, that disfranchisement in a republican government based upon the idea of human equality and universal suffrage, is a very different thing from disfranchisement in governments based upon the idea of the divine right of kings, or the entire subjugation of the masses. Masses of men can take care of themselves. Besides, the disabilities imposed upon all are necessarily without that bitter and stinging element of invidiousness which attaches to disfranchisement in a republic. What is common to all works no special sense of degradation to any. But in a country like ours, where men of all nations, kindred, and tongues are freely enfranchised, and allowed to vote, to say to the negro, You shall not vote, is to deal his manhood a staggering blow, and to burn into his soul a bitter and goading sense of wrong, or else work in him a stupid indifference to all the elements of a manly character. As a nation, we cannot afford to have amongst us either this indifference and stupidity, or that burning sense of wrong. These sable millions are too powerful to be allowed to remain either indifferent or discontented. Enfranchise them, and they become self-­respecting and country-­ loving citizens. Disfranchise them, and the mark of Cain is set upon them less mercifully than upon the first murderer, for no man was to hurt him. But this mark of inferiority—all the more palpable because of a difference of color—not only dooms the negro to be a vagabond, but makes him the prey of insult and outrage everywhere. While nothing may be urged here as to the past services of the negro, it is quite within the line of this appeal to remind the nation of the possibility that a time may come when the services of the negro may be a second time required. History is said to repeat itself, and, if so, having wanted the negro once, we may want him again. Can that statesmanship be wise which would leave the negro good ground to hesitate, when the exigencies of the country required his prompt assistance? Can that be sound statesmanship which leaves millions of men in gloomy discontent, and possibly in a state of alienation in the day of national trouble? Was not the nation stronger when two hundred thousand sable soldiers were hurled against the Rebel fortifications, than it would have been without them? Arming the negro was an urgent military necessity three years ago,—are we sure that another quite as pressing may not await us? Casting aside all thought of justice and magnanimity, is it wise to impose upon the negro all the burdens involved in sustaining government against foes within and foes without, to make him equal sharer in all

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sacrifices for the public good, to tax him in peace and conscript him in war, and then coldly exclude him from the ballot-­box? Look across the sea. Is Ireland, in her present condition, fretful, discontented, compelled to support an establishment in which she does not believe, and which the vast majority of her people abhor, a source of power or of weakness to Great Britain? Is not Austria wise in removing all ground of complaint against her on the part of Hungary? And does not the Emperor of Russia act wisely, as well as generously, when he not only breaks up the bondage of the serf, but extends him all the advantages of Russian citizenship? Is the present movement in England in favor of manhood suffrage—for the purpose of bringing four millions of British subjects into full sympathy and co-­operation with the British government—a wise and humane movement, or otherwise? Is the existence of a rebellious element in our borders— which New Orleans, Memphis, and Texas show to be only disarmed, but at heart as malignant as ever, only waiting for an opportunity to reassert itself with fire and sword—a reason for leaving four millions of the nation’s truest friends with just cause of complaint against the Federal government? If the doctrine that taxation should go hand in hand with representation can be appealed to in behalf of recent traitors and rebels, may it not properly be asserted in behalf of a people who have ever been loyal and faithful to the government? The answers to these questions are too obvious to require statement. Disguise it as we may, we are still a divided nation. The Rebel States have still an anti-­national policy. Massachusetts and South Carolina may draw tears from the eyes of our tender-­hearted President by walking arm in arm into his Philadelphia Convention, but a citizen of Massachusetts is still an alien in the Palmetto State. There is that, all over the south, which frightens Yankee industry, capital, and skill from its borders. We have crushed the Rebellion, but not its hopes or its malign purposes. The South fought for perfect and permanent control over the Southern laborer. It was a war of the rich against the poor. They who waged it had no objection to the government, while they could use it as a means of confirming their power over the laborer. They fought the government, not because they hated the government as such, but because they found it, as they thought, in the way between them and their one grand purpose of rendering permanent and indestructible their authority and power over the Southern laborer. Though the battle is for the present lost, the hope of gaining this object still

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exists, and pervades the whole South with a feverish excitement. We have thus far only gained a Union without unity, marriage without love, victory without peace. The hope of gaining by politics what they lost by the sword, is the secret of all this Southern unrest; and that hope must be extinguished before national idea and objects can take full possession of the Southern mind. There is but one safe and constitutional way to banish that mischievous hope from the South, and that is by lifting the laborer beyond the unfriendly political designs of his former master. Give the negro the elective franchise, and you at once destroy the purely sectional policy, and wheel the Southern States into line with national interests and national objects. The last and shrewdest turn of Southern politics is a recognition of the necessity of getting into Congress immediately, and at any price. The South will comply with any conditions but suffrage for the negro. It will swallow all the unconstitutional test oaths, repeal all the ordinances of Secession, repudiate the Rebel debt, promise to pay the debt incurred in conquering its people, pass all the constitutional amendments, if only it can have the negro left under its political control. The proposition is as modest as that made on the mountain: “All these things will I give unto thee if thou wilt fall down and worship me.” But why are the Southerners so willing to make these sacrifices? The answer plainly is, they see in this policy the only hope of saving something of their old sectional peculiarities and power. Once firmly seated in Congress, their alliance with Northern Democrats re-­ established, their States restored to their former position inside the Union, they can easily find means of keeping the Federal government entirely too busy with other important matters to pay much attention to the local affairs of the Southern States. Under the potent shield of State Rights, the game would be in their own hands. Does any sane man doubt for a moment that the men who followed Jefferson Davis through the late terrible Rebellion, often marching barefooted and hungry, naked and penniless, and who now only profess an enforced loyalty, would plunge this country into a foreign war to-­day, if they could thereby gain their coveted independence, and their still more coveted mastery over the negroes? Plainly enough, the peace not less than the prosperity of this country is involved in the great measure of impartial suffrage. King Cotton is deposed, but only deposed, and is ready to-­day to reassert all his ancient pretensions upon the first favorable opportunity. Foreign countries abound with his agents. They are able,

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vigilant, devoted. The young men of the South burn with the desire to regain what they call the lost cause; the women are noisily malignant towards the Federal government. In fact, all the elements of treason and rebellion are there under the thinnest disguise which necessity can impose. What, then, is the work before Congress? It is to save the people of the South from themselves, and the nation from detriment on their account. Congress must supplant the evident sectional tendencies of the South by national dispositions and tendencies. It must cause national ideas and objects to take the lead and control the politics of those States. It must cease to recognize the old slave-­masters as the only competent persons to rule the South. In a word, it must enfranchise the negro, and by means of the loyal negroes and the loyal white men of the South build till a national party there, and in time bridge the chasm between North and South, so that our country may have a common liberty and a common civilization. The new wine must be put into new bottles. The lamb may not be trusted with the wolf. Loyalty is hardly safe with traitors. Statesmen of America! beware what you do. The ploughshare of rebellion has gone through the land beam-­deep. The soil is in readiness, and the seedtime has come. Nations, not less than individuals, reap as they sow. The dreadful calamities of the past few years came not by accident, nor unbidden, from the ground. You shudder to-­day at the harvest of blood sown in the spring-­time of the Republic by your patriot fathers. The principle of slavery, which they tolerated under the erroneous impression that it would soon die out, became at last the dominant principle and power at the South. It early mastered the Constitution, became superior to the Union, and enthroned itself above the law. Freedom of speech and of the press is slowly but successfully banished from the South, dictated its own code of honor and manners to the nation, brandished the bludgeon and the bowie-­knife over Congressional debate, sapped the foundations of loyalty, dried up the springs of patriotism, blotted out the testimonies of the fathers against oppression, padlocked the pulpit, expelled liberty from its literature, invented nonsensical theories about master-­races and slave-­races of men, and in due season produced a Rebellion fierce, foul, and bloody. This evil principle again seeks admission into our body politic. It comes now in shape of a denial of political rights to four million loyal colored people. The South

does not now ask for slavery. It only asks for a large degraded caste, which shall have no political rights. This ends the case. Statesmen, beware what you do. The destiny of unborn and unnumbered generations is in your hands. Will you repeat the mistake of your fathers, who sinned ignorantly? or will you profit by the blood-­ bought wisdom all round you, and forever expel every vestige of the old abomination from our national borders? As you members of the Thirty-­ninth Congress decide, will the country be peaceful, united, and happy, or troubled, divided, and miserable.

51 US House, Proposed Bill for the Restoration of the Southern States, Speech of Thaddeus Stevens January 3, 1867*

The SPEAKER. The first business in order is the consideration of House bill No. 543, to provide for restoring to the States lately in insurrection their full political rights. . . . The pending question is upon the substitute then offered by the gentleman from Pennsylvania, [Mr. Stevens,] upon which that gentleman is entitled to the floor. Mr. STEVENS. I ask that the substitute be read in full, as it has not yet been read. The substitute was read as follows: ...

The eleven States which lately formed the government called the “confederate States of America,” have forfeited all their rights under the Constitution, and can be reinstated in the same only through the action of Congress: Therefore, Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the eleven States lately in rebellion, except Tennessee, may form valid State governments in the following manner: Sec. 2. And be it further enacted, That the State governments now existing de facto, though illegally

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* Cong. Globe, 39th Cong., 2nd Sess., 250–52 (Jan. 3, 1867).

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formed in the midst of martial law, and in many instances the constitutions were adopted under duress, and not submitted to the ratification of the people, and therefore are not to be treated as free republics, yet they are hereby acknowledged as valid governments for municipal purposes until the same shall be duly altered, and their legislative and executive officers shall be recognized as such. Sec. 3. And be it further enacted, That each of the ten States which were lately in rebellion, and have not been admitted to representation in Congress, shall hold elections on the first Tuesday of May, 1867, to choose delegates to a convention to form a State government. The convention shall consist of the same number of members as the most numerous branch of the Legislature of said State before the rebellion. It shall meet at the former capital of said State on the first Monday of June of said year, at twelve o’clock noon, with power to adjourn from time to time, and shall proceed to form a State constitution, which shall be submitted to the people at such time as the convention shall direct, and if ratified by a majority of legal votes shall be declared the constitution of the State. ... Sec. 4. And be it further enacted, That the persons who shall be entitled to vote at both of said elections shall be as follows: all male citizens above the age of twenty-­one years who have resided one year in said State and ten days within the election district. Sec. 5. And be it further enacted, That the word citizen, as used in this act, shall be construed to mean all persons (except Indians not taxed) born in the United States, or duly naturalized. Any male citizen above the age of twenty-­one years shall be competent to be elected to act as delegate to said convention. Sec. 6. And be it further enacted, That all persons who on the 4th day of March, 1861, were of full age, who held office, either civil or military, under the government called the “confederate States of America,” or who swore allegiance to said government, are hereby declared to have forfeited their citizenship and to have renounced allegiance to the United States, and shall not be entitled to exercise the elective franchise or hold office until five years after they shall have filed their intention or desire to be reinvested with the right of citizenship, and shall swear allegiance to the United States and renounce

allegiance to all other governments or pretended governments; ... Sec. 7. And be it further enacted, That no constitution shall be presented to or acted on by Congress which denies to any citizen any right, privileges, or immunities which are granted to any other citizen in the State. All laws shall be impartial, without regard to language, race, or former condition. If the provisions of this section should ever be altered, repealed, expunged, or in any way abrogated, this act shall become void, and said State lose its right to be represented in Congress. Sec. 8. And be it further enacted, That whenever the foregoing conditions shall be complied with, the citizens of said State may present said constitution to Congress, and if the same shall be approved by Congress said State shall be declared entitled to the rights, privileges and immunities, and be subject to all the obligations and liabilities of a State within the Union. No Senator or Representative shall be admitted into either House of Congress until Congress shall have declared the State entitled thereto.

The question was upon agreeing to the substitute. Mr. BINGHAM. I rise to a point of order. The SPEAKER. The gentleman will state his point of order. Mr. BINGHAM. I submit that the eighth section of this substitute is one which provides for the representation in Congress of the insurrectionary States; therefore, under the order adopted by the House at the last session, and renewed this session, this should be referred to the joint committee on reconstruction without debate.* ... Mr. STEVENS. Mr. Speaker, I am very anxious that this bill should be proceeded with until finally acted upon. I desire that as early as possible, without curtailing debate, this House shall come to some conclusion as to what shall be done with the rebel States. This becomes more and more necessary every day; and the late decision of the Supreme Court of the United States has rendered immediate action by Congress upon the question of the establishment of governments in the rebel States absolutely indispensable.†

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* [The Chair overruled the point of order. —Ed.] † [A reference to Ex parte Milligan, in which the Supreme

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That decision, although in terms perhaps not as infamous as the Dred Scott decision, is yet far more dangerous in its operation upon the lives and liberties of the loyal men of this country. That decision has taken away every protection in every one of these rebel States from every loyal man, black or white, who resides there. That decision has unsheathed the dagger of the assassin, and places the knife of the rebel at the throat of every man who dares proclaim himself to be now, or to have been heretofore, a loyal Union man. If the doctrine enunciated in that decision be true, never were the people of any country anywhere, or at any time, in such terrible peril as are our loyal brethren at the South, whether they be black or white, whether they go there from the North or are natives of the rebel States. Now, Mr. Speaker, unless Congress proceeds at once to do something to protect these people from the barbarians who are now daily murdering them; who are murdering the loyal whites daily and daily putting into secret graves not only hundreds but thousands of the colored people of that country; unless Congress proceeds at once to adopt some means for their protection, I ask you and every man who loves liberty whether we will not be liable to the just censure of the world for our negligence or our cowardice or our want of ability to do so? Now, sir, it is for these reasons that I insist on the passage of some such measure as this. This is a bill designed to enable loyal men, so far as I could discriminate them in these States, to form governments which shall be in loyal hands, that they may protect themselves from such outrages as I have mentioned. In States that have never been restored since the rebellion from a state of conquest, and which are this day held in captivity under the laws of war, the military authorities, under this decision and its extension into disloyal States, dare not order the commanders of departments to enforce the laws of the country. ... Congress refuses to treat the States created by him* as of any validity, and denies that the old rebel States have any existence which gives them any rights under the Constitution. Congress insists on changing the basis of representation so as to put white voters on an equality in both sections, and that such change shall precede the Court indicated that martial law was illegal when civil courts were open and available. See this section, doc. 48. —Ed.] * [That is, President Johnson. —Ed.]

admission of any State. I deny that there is any understanding, expressed or implied, that upon the adoption of the amendment by any State, that such State may be admitted, (before the amendment becomes part of the Constitution). Such a course would soon surrender the Government into the hands of rebels. Such a course would be senseless, inconsistent, and illogical. Congress denies that any State lately in rebellion has any government or constitution known to the Constitution of the United States, or which can be recognized as a part of the Union. How, then, can such a State adopt the amendment? To allow it would be yielding the whole question and admitting the unimpaired rights of the seceded States. I know of no Republican who does not ridicule what Mr. Seward thought a cunning movement, in counting Virginia and other outlawed States among those which had adopted the constitutional amendment abolishing slavery. It is to be regretted that inconsiderate and incautious Republicans should ever have supposed that the slight amendments already proposed to the Constitution, even when incorporated into that instrument, would satisfy the reforms necessary for the security of the Government. Unless the rebel States, before admission, should be made republican in spirit, and placed under the guardianship of loyal men, all our blood and treasure will have been spent in vain.

52 Kentucky, Gov. Thomas Bramlette’s Message to the Legislature, Rejection of the Fourteenth Amendment January 4, 1867†

Gentlemen of the Senate and House of Representatives: ... The restoration of the Government of the United States upon the basis fixed by the Constitution, and the laws pursuant thereto, which was the legitimate result of the victory of the Union armies, and of the entire surrender of rebellion, followed by peace, is yet denied to us. The organized rebellion against the Government, 329

† Cincinnati Daily Gazette, Jan. 5, 1867, 4.

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which was overcome by arms, was not more hostile or less dangerous to our free form of government, than the spirit and temper of the dominant sectional majority that now denies a constitutional restoration. The armies raised by our Government were for the avowed purpose of preserving the Union as formed by the Constitution. The soldier fought to attain this object. Now that the victory is ours, and armed rebellion has ceased, we have the strange spectacle of a dominant sectional majority in Congress denying to those who rebelled the privilege of submission to the Government as it exists; and to those who fought to maintain it, the fruits of their victories, and the security of the Government which they fought to maintain. A new and different government is sought to be forced upon the nation as a condition precedent to the recognition of the existing Constitution. The frenzy for destruction which seized upon the people of the Southern States, now that they have returned to reason, has been transferred to the Northern and some of the Western States; and the fires of fanaticism stir the blood of the colder North with the intense glow and heat of sectional hate of the South, and urges forward its votaries, in the fatal blindness of their passion, to the destruction of the Government which has just been so successfully and triumphantly sustained and vindicated by the valor and endurance of our soldiers. This denial is made under the pretense of love for the Union; when it is patent that nothing but a desire to perpetuate power in the hands of a sectional party prompts their action. The just balance of powers between the State and National Governments is sought to be destroyed, and the centralization of powers to be established in their Federal Government, through the amendments to the Constitution, which, if successful, will destroy those rights reserved to the States and people, and which are essential to the preservation of free government. Since your adjournment, the Secretary of State of the United States has transmitted to me an authenticated copy of a “joint resolution” proposing amendments to the Constitution, purporting to have been submitted “by the Senate and House of Representatives of the United States of America in Congress assembled (two thirds of both Houses concurring),” to the Legislatures of the several States, to become a part of the Constitution when ratified by three-­fourths thereof. I now lay the same before you for your consideration, with some views in relation thereto, which impress me as worthy of thought.

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The power to amend, alter or change the Constitution in a free government is an inalienable right, and the mode prescribed for exercising that right is essentially conservative and anti-­revolutionary. The modes prescribed by our Constitution, in which, only, amendments may be made, conserve the right, by removing all excuse for overthrowing or changing the government, either by force or innovation. It is as revolutionary to disregard the requirements of the Constitution in changing or amending it, under pretense of following its forms, as to overturn it by force. The Constitution of the United States secures different modes of amendment, either of which followed is lawful; none other is; and thus, by its increased facilities for amending, magnifies the wrong of attempting to alter or amend otherwise than as provided. Has the “proposed” amendment been submitted according to the requirements and with the sanctions of the Constitution? If it has, we should consider and weigh the amendment proposed, and adopt or reject as in our judgement will most redound to the welfare of our country; but if not so submitted should be promptly rejected as unworthy of further consideration. The Constitution of the United States, article V, section 1, provides that “the Congress, whenever two-­thirds of both houses shall deem it necessary, shall propose amendments to this Constitution; or, on the application of the Legislatures of two-­thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid, to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-­fourths of the several States, or by conventions in three-­fourths thereof, as one or the other mode of ratification may be proposed by Congress,” &c. ... The resolution submitting the proposed amendments does not come to us with the sanction of two-­thirds of the members chosen by the several States to the House of Representatives and Senate—twenty-­ two “Senators” chosen by eleven States, and fifty-­five members of the House of Representatives chosen by the people of eleven States, not being admitted to seats nor counted in the pretended passage of the resolution; and is not, therefore, constitutionally submitted. If it be objected that by this construction, contumacy, or negligence upon the part of the States and people in refusing to elect members, would defeat the powers of Congress, the objection is met by the language of

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the Constitution, which constitutes the members chosen “the Congress.” None are members, and to be counted as composing “the Congress,” until they are chosen by “the people of the several States” to the House of Representatives, and to the Senate by the respective Legislatures thereof. Entertaining this view of the constitutional powers of “the Congress” to propose amendments, the amendment submitted to your consideration is not regarded as coming with the sanctions of the Constitution, and therefore should be rejected. A further consideration of the amendment proposed is not deemed necessary, and objections to it in detail not required for this communication. I will only add, that were the provisions as acceptable as they are objectionable, the fact that they are not proposed in conformity with the requirements of the Constitution would be sufficient to compel their rejection; and more especially so, when they are held out as a condition precedent to admitting rights already secured by the existing Constitution. It is idle to propose amendments to a Constitution the existing provisions of which are held naught by those proposing the amendments. Let them first learn to obey that which already exists, before proposing amendments thereto. In the language of my inaugural address, “a departure from constitutional faith is the foundation of all the evils now upon us; a return is the only permanent remedy.” ... Thos. E. Bramlette, Governor of Kentucky*

* [On January 8, 1867, the Kentucky House voted 67 to 27 to reject the Fourteenth Amendment. See Journal of the Kentucky House 60–61 (1866). On the same day, the Kentucky Senate voted 24 to 9 to reject the amendment. See Journal of the Kentucky Senate 62–64 (1866). —Ed.]

53 Washington, DC, Passage of the District Suffrage Bill, Right Way (Boston, MA) January 19, 1867, p. 1†

Suffrage in the District.

The District Suffrage Bill is at Last a Law! In our paper of Dec. 22, we presented an outline of the bill, and a sketch of its history, to its passage by the Senate on the 13th ult., by a vote of 32 to 13, and by the House the next day by a vote of 118 to 46. We continue its history. It was not presented immediately to the President, as then the ten days specified in the Constitution would occur during the adjournment of Congress over the holidays; and there was apprehension that he might avail himself of this to retain the bill, and then claim, that, by the Constitution, it had not become a law, inasmuch as Congress by its adjournment had prevented its return within the ten days. The temporary recess of Congress is evidently not the adjournment contemplated in the Constitution, but still the letter of this instrument might give this unprincipled and tortuous man a pretext for his claim, which it would be best to avoid. From a wise expediency, therefore, it was not presented to the President, as he himself states in his message, till the 26th ult., six days after the adjournment of Congress, and twelve days after its passage. This delay gave Mr. Johnson an opportunity for writing a longer message, and for more extensive reading for the purposes of irrelevant quotation. His message was sent to the Senate, as the body in which the bill originated, on the 7th inst. It was read, advocated by Messrs. Saulsbury, Cowan, Johnson, and Doolittle, and opposed by Messrs. Morrill, Sherman, and Williams. The bill was then passed over the veto by a vote of 29 yeas to 10 nays, nearly three to one. It was sent to the House the next day. “Dixon” gives the following sketch in The Advertiser, of its passage there:— “The galleries were crowded at an early hour, the attendance being greater than any previous day of the session. Less than one-­tenth of the spectators were negroes. The veto message was taken from the table very 331

† [The bill was passed on January 8, 1867. —Ed.]

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soon after the House came to order, and the members and the galleries endured its reading with such patience as they could command. Half a dozen gentlemen on the Democratic side of the House appeared anxious to waste time in discussing the bill and message; but Mr. Ingersoll, chairman of the district committee, insisted upon calling the previous question, and a vote was accordingly taken as soon as the reading was concluded. The vote resulted in yeas 113, nays 38; being twelve more than the requisite two-­thirds. There was considerable applause in the galleries when the speaker announced that, the President’s objections to the contrary notwithstanding, the bill had become a law.” Any words expressive of our joy at this result would fall short of the real greatness of the event.

54 Virginia, Debate in the General Assembly, Rejection of the Fourteenth Amendment January 8–9, 1867*

House of Delegates, Tuesday, January 8, 1867

The Constitutional Amendment. Mr. Dunnington, of Prince William, offered the following: Whereas, The people of the Commonwealth are desirous that speedy action should be had upon the amendment proposed by the Thirty-­Ninth Congress to the Constitution of the United States; and whereas, it is almost the universal wish that said proposed amendment should not be ratified: Resolved, That the Committee on Resolutions of the House of Delegates, to whom the matter has been referred for upwards of thirty days, be and they are hereby instructed to report immediately to this House on the subject of the proposed amendment, in order that said speedy action may be had, as demanded by the interest and honor of the Commonwealth. Mr. Dunnington said his object in introducing the resolution was to have speedy action on the subject. * Richmond Whig (VA), Jan. 11, 1867, 4.

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It has been before the House since the beginning of the session and no action had been taken, and he now understood that the Committee had postponed its consideration another week. We are being misrepresented on the subject by telegrams and letters from Richmond to the Northern press, and our constituents are getting uneasy as to the intentions of the Legislature. He hoped the House would consider the resolution at once, and not refer it. Mr. Morgan, the question being the reference of the resolution to the Committee on Resolutions, called the yeas and nays and the reference was lost by the following vote: [Yeas 34. Nays 34] ... Mr. Dunnington, the resolution being on its passage, called the pending question and demanded the yeas and nays, when the resolution was passed by the following vote: [Yeas 52, Nays 16, present and not voting 4] ... Mr. Lewis said: Mr. Speaker, I voted aye, but that the interest and honor of the State demand the rejection of the amendment, I deny. I withdraw the motion to reconsider. By leave, the motion was withdrawn, but was renewed by Mr. Z. Turner, who said he had no doubt as to the fate of the amendment; there were not twelve intelligent men in the State who had any doubt as to how he should vote upon it, nor had he any doubt as to how he should vote upon it, but he had found that the resolution would probably disturb the joint action of the Senate and House committees on this subject. Mr. Garnett was glad the motion had been made, and it gave him an opportunity to explain why he did not vote on the resolution. The subject had been referred to a committee of the House, and believing that they would make a report which would be acceptable to the House, he did not wish to disconcert their action in the premises. He had no difficulty in deciding as to his own course. He should vote against the amendment when it came up. Mr. Wilson, the Chairman of the Committee on Resolutions, to whom was committed the amendment, explained the course of the committee. The committee, conjointly with the Committee on Federal Relations of the Senate had several times had the subject under consideration, and at the last meeting, at which he was not present, its further consideration had been postponed

B. Ratification, doc. 54

until next Tuesday. He did not object to the resolution, as its effect would only be to accelerate the action of the committee. Mr. Keiley trusted it would not be the pleasure of the House to reconsider the almost unanimous vote by which it resolved to-­day to give assurance to the country that the State of Virginia is not indifferent to the dangers and the indignities which menace her sisters and herself through the proposed Constitutional Amendment. The line of argument used by the gentleman from Rappahannock and from Essex, (Mr. Garnett,) did not impress him as pertinent to the question before the House. If it was proposed to take final action now on the amendment, there might be force in the suggestion that reasons of prudence dictate the propriety of delay. When a report should come before the House for action, he would be as ready as the readiest to receive and consider any reason presented from any quarter and entitled from its nature to respect, for a postponement. But the question being merely whether, at this time, when more than half of the regular session has expired without any intimation of the proposed action of the committee on this most vital subject, when the people are anxiously questioning each other as to the truth of the widely circulated rumors imputing to this Assembly a large measure of favor towards this iniquitous measure, and when finally the House was informed, as it had just been by the venerable Chairman of the Committee on Resolutions, that this motion, while accelerating the action of his committee, would in no respect embarrass it, he respectfully suggested that it was due to members and to the people that there shall be no default in the Legislature. In the security which gentlemen feel in their own matured resolves, they appear to forget that high authorities in the South have publicly avowed their adhesion to this measure. They forget that a party is organized in every Southern State for the purpose of proving its “loyalty,” and thus securing the public offices by support of the amendment. They appear to forget, sir, that the Executives of six Southern Commonwealths, Virginia, Tennessee, Missouri, Arkansas, Louisiana and Alabama, have formally recommended its adoption. If there is no need, then, that the representatives of the people of Virginia should stamp the calumnies which charge them with recreancy to their high trust with the brand of falsehood, and tie the nimble tongues of their slanderers? Is there no need, sir, that this be promptly done? Will any man rise here and af-

firm that any developments that may possibly be made to the present Congress will alter the questions of constitutional right or of political integrity involved in this measure? Does any one suppose that the United States possesses a bribe so tempting that Virginia will balance it against her fame, or against her duty to her noblest children? Surely not. When, therefore, the question is merely whether the committee of the House shall report action or not, and not what action this body shall take, I should have supposed there would be no difference of opinion; that all would have concurred in the propriety of notifying the people we are not sleeping on their interests. For my own part, I affect no doubt as to the conclusion to which I may arrive. I am ready now, and have been ready at any hour since the day the amendment was proposed, to reject it with scorn, and to stand or fall by that rejection. ... The question being taken, the motion to reconsider was lost by the following vote: [Yeas 17, Nays 53]

Senate, Wednesday, January 9, 1867

The Constitutional Amendment Rejected. Mr. Bolling, from the Committee on Federal Relations stated that he was instructed by that committee to make the following report: Resolved, by the General Assembly of Virginia, That it declines to ratify the 14th article proposed as an amendment to the Constitution of the United States. ... On motion of Mr. Meade the rules were suspended, when the resolutions passed by the following vote: [Yeas 27, Noes 0]

House of Delegates, Wednesday, January 9, 1867

333

The Constitutional Amendment Rejected. The House Committee on Resolutions, to whom was referred that portion of the Governor’s annual message which refers to a communication of the 16th of June, 1866, sent to him by the Secretary of State of the United States, respectfully report that they have had the same under consideration, and recommend the adoption of the following preamble and resolutions: Whereas, The Governor of the State has informed this General Assembly that, on the 16th of June last, the Secretary of State of the United States forwarded him an official copy of a joint resolution of Congress proposing

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January 2, 1867

an amendment to the Constitution of the United States, which joint resolution is in the following words: ... * Be it resolved by this General Assembly, 1st. That they do not ratify the said proposed amendment to the Constitution of the United States. 2d. That the foregoing preamble and resolution be communicated to the Governor of the State, with the request that he transmit a copy thereof to the Secretary of State of the United States. ... The resolution was passed by the following vote: [Yeas 74, Nay 1]

The annual message of His Excellency the Governor was received, through his private secretary, in the words following, to wit:

State of New York—Executive Department, Albany, January 2, 1867. To the Legislature: ... It will be your high privilege, in the name of the people of this State, to ratify the proposed constitutional amendment, which I have the honor to transmit upon this opening day of your session. I cannot too earnestly recommend your prompt action, in order that the judgment of New York on a proposition so moderate and so just, may be submitted at the earliest day to the unreconstructed States, and that, on our part, there may be no delay in anchoring those fraternal guarantees in the Federal Constitution. I need not discuss the features of this amendment; they have undergone the ordeal of public consideration since the adjournment of Congress in July last, and they are understood, appreciated and approved. Never before in the history of the Government, upon any great question affecting our national interests, has there been such unanimity in the expression of the popular will. The proposed amendment seems to contain just the conditions of safety and justice indispensable to a permanent settlement. It spans the chasm which the rebellion opened between the loyal and the insurgent State; and if it shall be accepted in good faith, as frankly as it is tendered, the way is already opened for reconciliation and lasting peace. There is no other plan before the people, and the verdict of the ballot-­box implies that no other plan is desired. The claim that the revolting States could by their own act, and without the consent of Congress, restore their former relations to the Government against which they rebelled, and that an Executive officer of the Government could exercise the prerogative of Congress, and legalize illegal governments organized by armed and unpardoned rebels—have both been rejected and condemned. On full and deliberate consideration, the people have pronounced in favor of the authority of Congress over the whole subject of reconstruction, and have declared their purpose, that the rebel States shall not be restored to their former participation in the Government until suitable constitutional guarantees are pro-

55 New York, Gov. Reuben Fenton’s Message to the Legislature, Ratification of the Fourteenth Amendment January 1, 2, and 10, 1867† January 1, 1867

Mr. Wilber offered for the consideration of the House a preamble and resolution, in the words following, to wit: Whereas, at the session of the 39th Congress, it was resolved by the Senate and House of Representatives of the United States of America, in Congress Assembled (two-­thirds of both houses concurring), that the following article be proposed to the Legislatures of the several States, as an amendment to the Constitution of the United States, which, when ratified by three-­fourths of said Legislatures, shall be valid to all intents and purposes as a part of the said Constitution, viz: ... ‡

* [The text of the Fourteenth Amendment appears here. —Ed.] † New York Assembly Journal, vol. 1, 9, 12–14, 36–38, 74 (1867). [Governor Fenton’s message encouraging the ratification of the Fourteenth Amendment was published in the New York Times, Jan. 3, 1867, 2. Prior to the New York Assembly vote, the Senate had voted in favor of the amendment (23–2) on January 3, 1867. See New York Senate Journal 73–77 (1867). —Ed.] ‡ [The text of the Fourteenth Amendment appears here. —Ed.] 334

B. Ratification, doc. 56

vided for security against present disloyalty and future rebellion. I am not insensible of the obstacles to a cheerful acceptance of the amendment, by those who retain much of the bitterness which they cherished towards us through four years of wasting war; and who are still imbued with prejudice against equality of right for those whom they recently held in bondage, and who fought to uphold the government, while they fought to destroy it. It takes time to work out changes and organic reforms in the structure of political institutions’ progress in human affairs is of slow growth, except in periods of violent convulsions in society which form epochs in history. I need not say that the work of reconstruction is retarded by the illusory hope held out to the insurgent States, of reconstruction on terms less favorable than this amendment, to the future security and repose of the government; but this error cannot last. Moderate, yet firm in our purpose, consistent and uniform in what we propose, we tender an amendment to which we trust these States will accede, in the same spirit of frankness and good faith in which we offer it for their acceptance. If, to our disappointment and regret, they shall manifest a spirit of continued hostility, and by rejecting a proposition so liberal and just, evince a settled purpose to continue to oppress those whom we are bound in honor to protect, and at the same time to represent them in the councils of the Federal Government, it will then be the duty of Congress, by more stringent measures, to give effect to the popular will. There can be no reaction, the nation has no purpose of turning back. The powers of Congress are ample under the Constitution and those powers will be exercised, so far as the public safety may demand, with the firmness worthy of a great people. ... Reuben E. Fenton

Legislatures of the several States an amendment to the Constitution of the United States. R. E. Fenton.

... Mr. Littlejohn moved that said message be referred to the committee on federal relations. Mr. Speaker put the question whether the House would agree to said motion, and it was determined in the affirmative.

January 10, 1867

Mr. Bruce, from the committee on Federal relations, to which was referred the Senate concurrent resolution ratifying an amendment to the Constitution of the United States, reported in favor of the passage of the same, in the words following, to wit: ... * Therefore, Resolved (if the Assembly concur), That the said proposed amendment to the Constitution be, and the same is hereby, ratified by the Legislature of the State of New York. Messrs. Millspaugh, Develin and Genet dissented from said report. Mr. Speaker put the question whether the House would agree to said report, and it was determined in the affirmative. [Ayes—77; Noes—40]

56 Ohio, Gov. Jacob Cox’s Message to the Legislature, Ratification of the Fourteenth Amendment January 2 and 4, 1867

... Another message was received from His Excellency the Governor, through his private secretary, in the words following, to wit:

Governor’s Message, January 2, 1867 †

The Secretary of State of the United States has, since your adjournment, transmitted to me a copy of an amend-

State of New York: Executive Department, Albany, January 2, 1867. To the Assembly: I herewith transmit an attested copy of a concurrent resolution of Congress, proposing to the

* [The text of the Fourteenth Amendment appears here. —Ed.] † Ohio Executive Documents 281 (1867). 335

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ment to the Constitution of the United States, proposed by Congress, and now awaiting the ratification of the legislatures of the several States. It consists of several sections containing provisions which, in the wisdom of the National Legislature are necessary to secure permanent peace throughout the country, and to correct the most palpable evils remaining in those States which were lately in rebellion; evils, which, without such correction would endanger the National safety, and be a lasting source of irritation and strife. In examining the proposed amendment, its extreme moderation is, under all the circumstances of the country and the time, most remarkable. It contains four provisions, of which three would become irrepealable and unchangeable except by new amendment of the Constitution; but the other could be suspended or annulled by act of Congress. The three former consist, first, of the grant of power to the National Government to protect citizens of the whole country in their legal privileges and immunities, should any State attempt to oppress classes or individuals, or deprive them of the equal protection of the laws; second: of the equitable equalization of representation, by forbidding any State or district to increase the number of its Representatives in Congress by enumerating in the electoral basis, classes of the United States citizens who are still denied the elective franchise; and third, of the affirmation of the inviolability of the faith pledged to the payment of the existing public debt of the United States, coupled with the denial of power to the National or State Governments to assume or pay any debt incurred in aid of the late rebellion. A simple statement of these propositions is their complete justification. The first was proven necessary long before the war, when it was notorious that any attempt to exercise freedom of discussion in regard to the system which was then hurrying on the rebellion, was not tolerated in the Southern States; and the State laws gave no real protection to immunities of this kind, which are of the very essence of free government. The necessity, also, of having somewhere a reserved right to protect the freedom of the slaves whom the war emancipated is too palpable for argument. If these rights are in good faith protected by State laws and State authorities, there will be no need of federal legislation on the subject, and the power will remain in abeyance; but if they are systematically violated, those who violate them will be themselves responsible for all the necessary interference of the central government.

The second proposition is so just in itself that the only objection raised to it is, that it is a change of one of the original so-­called “compromises of the constitution.” It is an all-­sufficient answer to say that the rebellious States long enjoyed a very disproportionate power in the government, which they used for the destruction of the government itself, and that after such a rebellion, a readmission of the insurgents to a true republican equality of representation is the most that the loyal citizens of the country can allow, in justice to themselves. It is neither denied nor concealed that this is a diminution of the present political power of the Southern States which is a penalty for rebellion; but when the penalty consists of only lopping off that which was an excess of power before, and in applying an equal rule to them and to ourselves, it may well be doubted whether defeated insurgents were ever before treated with equal magnanimity. The third proposition, relative to the debt, has, I believe, found no open opposition. The third section of the amendment is that which provides for the disqualification for holding office of a class regarded as peculiarly responsible for the rebellion. This disqualification may be removed by Congressional action, and its continuance or discontinuance would be determined by the evidence of a real return of honest allegiance to the National Government. It may fairly be said, therefore, to depend upon the Southern people themselves whether it shall long continue to operate; and they cannot reasonably complain of the burden of a provision which their own loyalty could remove. It is as a necessary provision for the public safety that this is insisted upon, and I am sure that there is no disposition in the North to continue any disability beyond the period during which the necessity shall seem real. Such is, in my opinion, the character of the amendments proposed, which it is my duty to lay before you for your action. Several of the States have already ratified it, but I deeply regret to know that it has been rejected by several of those whose ratification would do most to make the measure the promise and beginning of that full settlement of our internal discussions for which we all long. I am not without hope that a mature consideration and calmer reflection will convince even those who have rejected the proposal, that justice, right, and a wise self-­interest alike will dictate a reconsideration of the matter and a different decision. J. D. Cox, Governor. 336

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House, January 4, 1867 *

The Senate resolution ratifying the constitutional amendment occupied the attention of the House this afternoon. Speeches were made by Messrs. Beers, Bloom and Follet, all Democrats, and in opposition to the amendment. The Unionists, believing that the subject had already been discussed and had been decided by the people at the ballot box, refrained from participating in the debate. The speeches were simply appeals for a new trial after the verdict had been rendered by the jury. ... After this gratuitous expenditure of Democratic gas, the House adopted the resolution by a vote of 54 to 25, the Unionists voting for it to a man. An amendment to the resolution directing copies to be sent to the President of the Senate and the Speaker of the House, at Washington, was agreed to, which sends the resolution back to the Senate. The matter will be completely disposed of to-­morrow.†

57 Speech of Rep. George Boutwell (R-­MA) on Suffrage and the Fourteenth Amendment, National Anti-­Slavery Standard (New York, NY) January 12, 1867, p. 1‡

HON. GEORGE S. BOUTWELL gave an eloquent lecture in the Old Bay State Course, in Tremont Temple, Boston, last week, from which we make the following extract. The lecture is reported at length in the Boston Journal: Another plan of restoring the Union is to admit these ten States, respectively, whenever they shall ratify the pending Amendment to the Constitution of the United States, the character of which I need not detail to you. I * Cincinnati Daily Gazette, Jan. 5, 1867, 2. † [The Ohio Senate had previously voted in favor of the amendment, 21 to 12, on January 3. See Ohio Senate Journal 9 (1867). —Ed.] ‡ [Paragraph breaks not in original source. —Ed.]

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may say that, on the very day, I think; that the House of Representatives voted to admit Tennessee to her place as a State in the Union, by a large majority, a bill was laid on the table which declared that whenever any one of the States recently in rebellion should ratify the Constitutional Amendment, it should be admitted to representation in the government of the country; thus denying in the very beginning the doctrine that when any one of those States ratified the Constitutional Amendment, they were to be admitted to their places in the government of the country. The Constitutional Amendment, as far as understood by the radical men in the Congress of the United States, meant just this, and nothing more: that it was a condition precedent to the recognition of the rights of those States to be represented in the government of the country, a condition which we should not dispense with and a condition which we were not bound to regard as the sole condition, and it was so declared distinctly by many members of the House of Congress at that time. Finally, I am bound to declare that it would be in the highest degree unwise and unsafe for the people of this country to accept those States when the Constitutional Amendment shall be ratified by the country or by them respectively; and the reasons are apparent. Like the President’s policy, they turn over these ten States to the control of rebels. The Amendment itself, only by indirection, obtains security for the recognition of the rights of the negroes. It will be practicable for the white people of these ten States to exclude the negroes from all voice in the government of them. They will lose eighteen of their present representatives; but still, I have no doubt, that on the whole, the mass of the rebel leaders in the South will prefer to lose them, to the right of suffrage. They will still have their two Senators, and seventy-­five members in the House of Representatives; they will still be a compact and powerful organization for the purpose of overthrowing the business of this country. As a matter of policy, setting aside the question of right, it will be unfortunate for the people of this country to admit any system of restoration which allows these fifteen States, fourteen certainly, to be a unit in opinion with reference to the affairs of this country. As a matter of policy we must divide the public sentiment of these States; divide their political governments, placing some of them on the side of the Union; securing a representation by loyal men, even though those loyal representatives be black men. (Applause,) It is the most dangerous of all propositions that these old slave States

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should hereafter be represented in the government of this country; a unit upon the question which is vital to us—whether this government shall exist. Therefore, for one I look for just such a policy in this work of restoration as will secure to the government of the United States a Christian and loyal support. If we cannot have the entire forces of the old fifteen slave States, let us at least take a portion. If South Carolina has a majority of black people, I prefer that she should have loyal black rather than disloyal white representatives. (Applause.) And therefore I say secondly, that the Constitutional Amendment, right in itself and necessary as a condition precedent to the restoration of the Union, is wholly insufficient as a final and complete measure of restoration, and it is better for the country to reject it altogether and fight out the battle upon the plain issue of human rights, equal and exact justice to all men, than to accept this as a complete and final measure of restoration. (Applause.) ... I come, then, to what I believe offers the only safe way out of our present difficulties; and it is the adoption of the Constitutional Amendment, which recognizes all persons born in the country as citizens of the country; but after all it is insufficient and untrustworthy unless you add them to universal suffrage in those ten States. (Applause.) ... I believe the time has come now when we shall cut clear of all theories and of all speculations concerning the rights of this section of the country, growing out of their ancient relation as States to the government of the United States, and establish governments upon the fundamental principles of natural justice, beginning at the foundation, recognizing the rights of men because they are men, and building up governments republican in form; and whether the time necessary for the consummation of this plan be one year, or five years, or ten years, we shall appeal to the people to maintain that policy unto the end. (Loud applause.)

58 West Virginia, Gov. Arthur Boreman’s Message to the Legislature, Ratification of the Fourteenth Amendment January 16, 1867*

The Governor’s Message was then received and read as follows: Gentlemen of the Senate and of the House of Delegates: ... It becomes my duty to lay before you a communication received by me from the Secretary of State of the United States, enclosing a joint resolution adopted by the two Houses of Congress at its last session, proposing an amendment to the Constitution of the United States. I have no hesitation in commending this wise and important measure to your early and most favorable consideration; feeling confident that the result of your deliberations thereon will not only accord with the dictates of your own good judgment, but will also reflect the recently expressed will of those whom your represent. That it was the absolute duty of Congress to take the control of the reconstruction of the rebellious states after the war was over, it seems to me, must be apparent to every unbiased mind. Had it not done so, it would have been recreant to the trust reposed in it by a patriotic and confiding constituency. And, when we consider the circumstances under which this amendment is proposed as the basis of a restoration of these States to their former relations to the government, we are astonished at the moderation of the loyal representatives of the loyal people of the country. As we read it, from the beginning to the end, we find nothing in it that is vindictive or even unkind, much less any thing that is unjust. I venture that few in the South expected milder conditions: many expected much greater exactions. Greater magnanimity was never shown, nor more conciliatory terms ever proposed, to any people under kindred circumstances, than Congress has proposed to the rebellious States. They spent four long years in waging the most bloody, desperate and ruinous war known to his338

* West Virginia Senate Journal 6, 18–24 (1867).

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tory, for the purpose of destroying the freest and best government on the face of the earth. All that is now required is, a restoration that will guarantee the supremacy of the lawful authority and the prosperity and happiness of the whole country for the time to come. If Congress had done less it would have failed of its duty;—had it gone farther its action would, no doubt, have been approved by the loyal millions who sustained the government with men and money to suppress the rebellion and who have so recently endorsed this proposition. This amendment contains all the terms proposed by Congress as a basis of the restoration of the rebellious States to their proper relations to the government; for, while this does not appear on its face—and it was not proper that it should—yet that it was so intended by a large majority of Congress, and by the loyal people of the country, will not, I apprehend be doubted by any candid mind—especially when we take into consideration the fact that the only State that accepted it was immediately admitted to representation in both Houses of the same Congress that proposed it. So far as I am aware, there is serious objection to the subject matter of only two of the provisions of this amendment: the one equalizing the basis of representation in the government; the other declaring ineligible to office such participants in rebellion as had previously sworn to support the constitution of the United States. Some of the other provisions are not objected to at all; and the rest—except, perhaps, the clause regulating citizenship—are objected to only on the ground that they are proposed to be incorporated into the constitution of the United States—it being claimed that they appertain to matters that should be left to State regulation. It is claimed by the South and those who support their pretensions, that the second section of this amendment violates one of the compromises of the constitution, without which the Union could not have been formed; and that it unjustly reduces their representation in Congress and their power in the government. To this it may be answered that all governments are founded in compromise; that the provision of the constitution referred to is no more a compromise than the rest of that instrument; that the South rejected and threw off this provision with all the others, and entered into rebellion against and made war on the government; but, instead of succeeding they were defeated and conquered, and thereby forfeited all their rights thereunder, and that this section is now proposed as one of

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the terms of their restoration; that by the act of rebellion and war by the South, their slaves were made free people; and if this section is not adopted, the South will not only not have lost strength in the government by the rebellion, but will have gained by having the whole number of the colored population counted in the basis of representation, and represented in Congress, instead of three-­fifths, as when they were slaves. Indeed, one-­ third of the power wielded by the South in the national government will be based on this population; and that, too, while the latter have no voice in either the state or national governments. It is also contended that the purpose of this section is to force the South to confer suffrage on the negroes. The truth is that it leaves this question of suffrage as at present, to the States. No State is required to confer or refuse it; but each is left free to decide the question for itself. But, as is declared on its face, it simply provides that where the right to vote is denied (except for crime,) to any of the male inhabitants of a State, of proper age, the basis of representation in such State shall be proportionately reduced. It is intended thereby to equalize the representation in Congress from all the States, North and South, by basing it very nearly, though not precisely on those whom the States recognize as entitled to a voice in their governments. But it is said that the operation of this section will be much more seriously felt in the South than in the North because there are at present so many more such excluded persons in the former. This may be true, but it does not affect the principle or the justice of the provision. The South decide for themselves that these persons are not fit to exercise political power, and they should not expect to avail themselves of a power as against others which they ignore among themselves. The principle is eminently just in itself, and should be accepted as such everywhere throughout the land. The third section renders ineligible to office any person who, having as an officer previously taken the oath to support the constitution of the United States, shall have engaged in rebellion against the same. But this disability may be removed by a vote of two-­thirds of each House of Congress. The ruling spirits of the South determined no longer to submit to the government, and defied its authority and set up for themselves, within its jurisdiction, a separate and alien organization, Some claimed the right to do so under the constitution. Others, and it is believed a large majority—as may well be recollected, made no

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such pretensions, but went into conspiracy with the declaration that “if successful,” they were “revolutionists;” “if unsuccessful,” they were “rebels,” and would submit to the consequences. Whether of one class or the other, however, all were aware of what their act was held to be by the country generally, and by the constituted authorities of the United States; and they must have expected, if unsuccessful, to forfeit, not political rights merely, but much more. Whatever the opinions of men in the South were, the triumph of the government has decided that they were engaged in a rebellion and are rebels, and are liable to be treated as such. In fact, thousands of them have themselves acknowledged this by suing for pardon as such. The government instead of enforcing the laws and taking the benefit of the forfeitures resulting from the act of rebellion, and humiliating the participants by trial for the offense, as it had a right to do, now proposes simply to withhold political power from the parties admitting themselves to be rebels until they show their purpose to be loyal. Instead of humiliation and the enforcement of the laws, terms of restoration are proposed. But it is not simply the provisions of the amendment that meet with objection. It is contended that in the absence of the representatives from the ten Southern States, Congress is not legally constituted, and therefore, cannot rightfully propose any amendment whatever to the constitution. If this is a correct position, then there has been no constitutional Congress since the Southern members left it in 1861; and all the laws passed for the raising of men and money, or otherwise providing for the suppression of the rebellion, were invalid, and were acts of usurpation. If the absence of the representatives from ten States disorganizes the government, then we are at the mercy of a minority, and the withdrawal of the representatives of one State or of one member, would effect the same end; and thus we find that this position results in an absurdity. But we are not left to conjecture on this question. The constitution is explicit. In article I, section 5, of that instrument, it is provided that “a majority of each (House) shall constitute a quorum to do business,”—not of a particular kind or character, but business generally; and while there is a quorum it is called the “House.” It will be found upon examination, that wherever it is said in the constitution that either “House” may do an act, this is to be taken in connection with the provision quoted that “a majority shall constitute a quorum to do business; and nowhere in the constitution is it declared

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that any other number than a majority is required “to do business” of any kind. And the only difference between ordinary legislation and a proposition to amend the constitution is, that in the former case, under parliamentary rule a majority of both Houses is sufficient to pass any measure, while in the latter two-­thirds of both Houses is required by the constitution. But two-­thirds is also required to pass a bill over the veto of the President, and some other instances; yet in these cases it never has been pretended that more than two-­thirds of a quorum was required, until since the rebellion. It now seems to be admitted, however, that there may have been a pretext for proceeding with legislation during the rebellion, while the Southern representatives were absent in obedience to the command of their States, yet, as they have now returned by like command, and ask permission to participate in the proceedings of Congress, that body is not legally constituted as long as they are refused such permission, no matter what their States may have been engaged in during such absence. But it certainly should not be entertained for a moment that a minority, even in obedience to the command of their States, can make one number necessary to a quorum at one time, and a different number at another time. The rule is fixed by the Constitution and continues the same without regard to what a minority, or the States they represent, may do. In further opposing the amendment, the South say that after the conflict at arms was over, they accepted the terms proposed by the Executive and complied with all that he required to restore them to their proper relations to the government and that it is not keeping faith with them now to require any further conditions. But it must be remembered that while the process of reorganizing the Southern States, directed by the President, was going on, Congress was not in session, and could not therefore either consent to, or dissent from what was being done; that in some of the States they were expressly informed by the President, and in all it was understood that the organizations being formed under his proclamations were merely provisional and subject to the ultimate decision of Congress. And this was, also, the understanding of the whole country. As soon as Congress assembled it was apparent to all that the policy of restoration which had been adopted did not meet the approbation of that body, and that they deemed it their duty as the law making power of the government to prescribe such terms of restoration to the insurgent States as would secure the future peace and safety of the na-

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tion; and this they did before they adjourned, by the amendment to the constitution which is now proposed to the States for ratification. The position assumed, that the action taken in the rebellious States under the proclamations and orders of the executive is conclusive on the other departments of the government, and that Congress has no authority to go behind it and impose additional terms, but should at once admit the representatives from those States, cannot be maintained or assented to. Congress is the law making power of the government; and according to the spirit as well as the plain provisions of the Constitution, that body has the power and it is its imperative duty to provide for the general welfare of the country. After the war was over, it devolved on Congress to examine into the condition of the rebellious States, and to ascertain the conduct and sentiments of the people of those States, and then to adopt such measures as would secure the enduring peace, safety and prosperity of our country. And the South should neither be flattered nor deceive themselves with the pretention that any thing done by the executive could either supersede the jurisdiction of Congress over, or preclude it from taking control of, the subject of reconstruction. If the terms proposed are not accepted in the spirit in which they are tendered, this will manifest such disregard for the legally constituted authorities of the United States as may seem to require action of a more decided character. In addition to the general subjects of legislation, you have a solemn duty to perform in sustaining the great loyal cause of the country. The contest, whatever form it may assume, is not yet ended. Let us then perform the duties of the present hour fearlessly and faithfully, and gird ourselves afresh for whatever may await us in the future. Arthur I. Boreman. Executive Department, Wheeling, January 15, 1867.

Resolved by the Legislature of West Virginia, That the said proposed amendment is hereby ratified. Mr. Farnsworth moved that the rule be suspended so as to put said resolution upon its adoption to-­day; ... And the question then being upon the adoption of said resolution, Mr. Farnsworth demanded the yeas and nays, which were ordered and taken. [Yeas—15, Nays—3] So the said resolution was adopted.†

59 Kansas, Gov. Samuel J. Crawford’s Message to the Legislature, Ratification of the Fourteenth Amendment January 9–11, 1867

Governor’s Message, January 9, 1867 ‡

Gentlemen of the Senate and House of Representatives: ... I have the honor to transmit to the Legislature an official copy of a joint resolution of Congress, passed June 16, 1866, by a vote of two-­thirds of each House, entitled “A Joint Resolution proposing an Amendment to the Constitution of the United States:” ... § Whilst the foregoing proposed amendment is not fully what I might desire, nor yet, what I believe the times and exigencies demand, yet, in the last canvass, from Maine to California, it was virtually the platform which was submitted to the people; the verdict was unmistakable. The people have spoken on the subject, at the ballot-­box, in language which cannot be misunderstood. And as we are but their servants, to do their will, it is now our unquestionable duty to accept it, and give it our cheerful and hearty support. I, therefore, hope that Kansas in the first legislative enactment of this session,

... Mr. Farnsworth offered Senate Joint Resolution No. 2, “Ratifying the amendment proposing a Fourteenth Article to the Constitution of the United States,” as follows: ... *

* [The text of the Fourteenth Amendment appears here. —Ed.]

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† [That same day, January 16, 1867, the West Virginia legislature ratified the amendment on a vote of 43 to 11. See New York Tribune, Jan. 17, 1867, 4. —Ed.] ‡ Kansas Senate Journal 19, 43–45 (1867). § [The text of the Fourteenth Amendment appears here. —Ed.]

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will give the unanimous vote of her Legislature in favor of this measure.

60 US House, Speech of John Bingham in Opposition to Bill for the Restoration of the Southern States, Exchange with Thaddeus Stevens

House, January 10, 1867 *

House Joint Resolution No. 1, Joint Resolution ratifying the amendment to the Constitution of the United States, proposed by the Congress of the United States and known as Article XIV. ... And the question being, shall the joint resolution pass, The yeas and nays were had, and were as follows: Yeas, 76; nays 7. ... And so, a constitutional majority having voted in favor of the passage of the joint resolution, The Joint Resolution passed, And the title was agreed to.

January 16, 1867‡

The SPEAKER stated that the first business in order was the House bill, No. 543, to provide for restoring to the States lately in insurrection their full political rights, on which the gentleman from Ohio [Mr. Bingham] was entitled to the floor. ... Mr. BINGHAM. Mr. Speaker, the two bills now pending before the House, and which I have moved to commit to the Committee on Reconstruction, are, first the bill introduced by the gentleman from Pennsylvania [Mr. Stevens] without the sanction of any committee, and by way of substitute for the bill originally reported by the Committee on Reconstruction; and the other is the bill reported from the Committee on the Territories by my colleague, [Mr. Ashley.] In all that I may say to-­day, Mr. Speaker, I do not wish to be understood as seeking to enforce upon the House any plan of my own. I desire merely to call the attention of the House to the attempts made by these two measures to induce the House to depart from what has hitherto been agreed upon by the Committee on Reconstruction; what has hitherto been done and sanctioned by the Thirty-­Ninth Congress; what has hitherto been done and sanctioned by the people through the public press, in their primary assemblies, at the ballot-­box, and finally what is now being done, and conclusively done, by the people of the organized States through their legislative assemblies. Neither, sir, do I intend to be understood, in anything I may say here to-­day, as attempting to limit by any poor words of mine the sovereignty and power of the people of the United States to

Senate, January 11, 1867 †

House Joint Resolution No. 1, Ratifying the amendment to the Constitution of the United States, proposed by the Congress of the United States, and known as Article XIV. ... And the question being, “Shall the Joint Resolution be adopted?” The roll was called with the following result: Yeas 23; nays none. ... And so a constitutional majority having voted in favor of the adoption of the joint resolution, the joint resolution was adopted.

* Kansas House Journal 78–79 (1867). † Kansas Senate Journal 76 (1867).

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‡ Cong. Globe, 39th Cong., 2nd Sess., 499–505 (Jan. 16, 1867). [Bingham’s speech was reported in the New York Times, Jan. 17, 1867, 1. The Times’s editors described it as “one of the most eloquent and effective speeches heard in the present Congress” (p. 4). —Ed.]

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take such security as, in their judgment, they may deem effectual for the future safety of the Republic and the protection of the rights of all the people of the Republic. It is because I insist upon that right of the people— a right that belongs alone to the people, and which can be exercised effectively only by the people—that I oppose the legislation contemplated by the honorable gentleman from Pennsylvania [Mr. Stevens] and by my colleague, [Mr. Ashley.] While there are many, and, in my judgment, weighty objections to these bills, that just stated is not the least of them. I challenge these bills to-­day, in the presence of the House of Representatives and in the presence of the nation, as a substantial denial of the right of the great people who have saved this Republic by arms to save it by fundamental law—law emanating from the people, law resting upon the sovereign will of the people alone, law beyond the power of this Congress or of any subsequent Congress by mere legislative enactments to repeal or in any manner limit or restrict. Standing upon this proposition of the right and duty of the people to settle for themselves this great question, which involves the future of the nation, the life and stability of American institutions, I ask the House to consider what has been done thus far upon the subject of restoration and the public safety by the Committee on Reconstruction, by the Congress by which that committee was appointed, and after them, by the people themselves? First, sir, that committee, reflecting, as I believe, the will of the House and the Senate as well as the judgment of the people of the organized States of this Union, came to the conclusion that there was no future safety for the Republic, no security against a future rebellion similar to that which has recently rocked the continent and filled all good men in this land and in other lands with fears of the failure of this great experiment of republican government, but by incorporating in the Constitution itself such a provision as would protect in all the hereafter the rights of every citizen and every State by the combined power of the whole people. To that end that committee prepared an article of amendment to the Constitution of the United States, and submitted it to the consideration of this House and of the Senate. That article of amendment is substantially that all persons born in this land, within the jurisdiction of the United States, without regard to complexion or previous condition, are citizens of the Republic; that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United

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States; that no State shall deprive any person of life or liberty or property without due process of law; that no State shall deny to any person within its jurisdiction the equal protection of the laws; that representation hereafter among these States shall be apportioned according to the whole number of representative population in each; that those who have violated official oaths to support the Constitution of the United States shall be ineligible to any office, civil or military, State or national, until such disability shall be removed by act of Congress; that neither the United States nor any State of this Union shall ever assume or pay any debt contracted in aid of the late rebellion or make compensation for slaves; and that the debt contracted in defense of the nation’s life shall be forever inviolable; and crowning all with the grand, comprehensive grant of power, that the Congress of the United States shall be authorized by appropriate legislation to enforce this provision. Mr. Speaker, I stand here to-­day filled with the conviction, as strong as knowledge or that light which comes direct from heaven, that the future safety of this people depends in some sort upon the incorporation into their Constitution of that great amendment. If it had been there from the beginning, you never in my judgment would have been troubled with the late rebellion. Now, it is attempted to be said here, and elsewhere, too, that it was not the conclusion of the joint Committee on Reconstruction of the Senate and the House of Representatives that this amendment was to be made the basis of reconstruction. I beg leave to remind the House and to remind the country that that was the very conclusion to which the committee did come, and which they reported to the House and Senate. ... I stand upon the proposition that the Congress by that vote did give out this amendment to the people of the United States as the future basis of reconstruction; and further, that every member representing the Union party upon the joint Committee on Reconstruction, by recording his vote in the Senate and in the House of Representatives in favor of the substitution of the third section of the amendment as it now is for the third section as it was originally reported, thereby, declared the amendment, as it now is, the basis of reconstruction as provided in the bill reported by that committee, and is bound to stand by his record so made if he would be consistent. Mr. Speaker, the people of the United States so understood and accepted it. There are gentlemen

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here, not a few I understand to say, who owe their reelection to the Fortieth Congress to the fact that the Union State conventions in the States which they represent upon this floor declared their acceptance of this constitutional amendment, in manner and form as it now stands, as a condition for future restoration. In saying this I am not saying that either directly or indirectly or by implication this restricts, in any manner or form, the power of the Congress of the United States in the mean time to pass such laws as may be necessary for the protection of life and liberty and property throughout the lately insurgent States. To me nothing can be clearer than that the power so to legislate over those States, until their due reorganization and restoration, is in the Congress of the United States and nowhere else. It is precisely because I believe that the sovereignty of the nation is alone in the organized constitutional states of this Union, maintaining their relations to the Federal Government, and represented in the Congress of the United States, that I claim the existence of the power in this Congress, first, to propose to the several States so organized this amendment to the Constitution for their ratification; and second, to pass and enforce within the lately insurgent States for the time being all laws not inconsistent with the provisions of the Constitution of the United States for the protection, throughout those States, of every person in his rights of life, liberty, and property. This is no new opinion with me, but a conviction uttered in my place here five years since and early in the rebellion. Time and the action of every department of the Government have only confirmed me in it. Sir, the gentleman’s bill, while it conflicts with the constitutional amendment, totally ignores the first duty of the Congress of the United States, to give the protection of law to life and property in disorganized States. . . . I challenge the gentleman, and I challenge any advocate of his bill, to the issue that I make to-­day: that his bill gives no protection of law or color of protection which these people have not now. It gives no protection to anybody, loyal or disloyal, in any State. Because of that I may be pardoned for opposing the bill, as also for the reason before stated that it is a clear, palpable departure from the intent and letter of your constitutional amendment. The bill, in my judgment, is framed in the spirit of the utterances of a distinguished man of this country who has been waging war on this amendment and this Congress, denouncing both as a “swindle,” and asking the swindling Congress to “fling

the swindling amendment out of the window.”* I see in the legislation thus attempted to be initiated by the gentleman from Pennsylvania the inauguration of that movement, and I for one stand here to enter my protest against it. Let the future safety of this Republic—I ask it in the name of my afflicted country—rest upon guarantees embedded in the Constitution by the sovereign act of the people, and not upon repealable acts of Congress or parchment contracts entered into by Congress with insurgent and disorganized States. I submit with all confidence that what is contemplated by the gentleman’s bill is to patch up a restoration by the usurpation of powers which do not belong to the Congress of the United States, induce the people to fling aside the constitutional amendment, and thereby subject the future of this Republic to all those dread calamities which have darkened its recent past. Mr. Speaker, I may be pardoned, before I proceed further with the consideration of these bills, if I attempt in a few short words to fortify what I have said of the power of Congress to present the pending amendment, the power of the loyal organized States here represented to ratify it and make it part of the Constitution of the United States, and the power of Congress in the mean time to protect person and property in these insurgent States. May it not be safely affirmed that the American nationality as a political organization never existed an hour but by means of organized State governments? Your Constitution began to be through that instrumentality, and it has continued to be through that instrumentality. I do not lose sight of that other fact, that, notwithstanding the division of this people into States under the Constitution, they are nevertheless one people, with one Constitution, one country, and one destiny. But still, sir, their political power as one people is primarily exercisable under the Constitution of the United States only through and by organized constitutional State governments. There can be no representative body of the people of the United States in Congress save through organized State governments and elections therein held. There can be no senatorial body of the legislative power of this nation save by the direct act of legislative assemblies in organized States. There can be no election of a Chief Magistrate of the United States save through electors appointed in such manner as the Legislature of the respective States may

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* [A reference to the speeches of Wendell Phillips. See this volume, 1B, doc. 28. —Ed.]

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direct, and in default of an election by the State electors the election can only be had by the Representatives of States of the United States in the House of Representatives voting by States, the Representatives from each State having but one vote. This being so, it necessarily results, notwithstanding the strange utterances that have been heard in another place from a distinguished Senator, that the people of organized States of the Union who maintain their constitutional relations to the Government of the United States, and only the people of such organized States of this Union, are the nation. This proposition has of late been denied, I regret to say, in the interests of those who lately waged war against the Government. I repeat, there is no American nationality without States of the Union duly organized and maintaining constitutional relations to the Government of the United States in conformity with the Constitution of the United States. It therefore must be that when in the late rebellion the people of the insurrectionary States organized conspiracy and took up arms against the Government of the United States, though they failed, thank God, to overturn the fabric of American empire, though they failed to sweep away the supremacy of the American Constitution, though they failed to denationalize the American people, and to blot that people from the map of nations, they did succeed in overturning their own local constitutional State governments; and thenceforward to this moment (except in restored Tennessee) they had and have no power to legislate upon any subject affecting the life, liberty, or property of an American citizen, save by the sufferance of the American nation represented in the Congress of the United States. ... The conclusion is irresistible that the rebel States by their rebellion ceased to possess the power or legal coactive force for local State government. When a State of this Union becomes thus disorganized the power of government therein is exclusively in the Government of the United States. The jurisdiction of the United States Government within the limits of this Republic is nowhere, either by the letter of the Constitution or by any intendment of the Constitution, limited or restricted for the general purpose of legislation except by the presence of an organized constitutional State government. It therefore is that, from the day treason did its work in South Carolina to this hour, the legislative power of the United States was as exclusive within the State of South Carolina as it is this moment within the District of Colum-

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bia. So it must remain, and so it will remain until South Carolina is restored to her constitutional relations with this Government by the reorganization of a constitutional State government acceptable to the American people and made valid by the approval of Congress. If this be so, Mr. Speaker, it follows that this Congress of the United States had full power, without the consent and against the consent of every insurrectionary State in this land, to propose the pending amendment to the Constitution to all the organized States of this Union for ratification. There is, there can be, in my opinion, no question of this. But does it not follow from this that the people of each of those States may not reorganize their local State governments destroyed by their rebellion, and ratify the pending amendment with the consent of this Government. The gentleman from Pennsylvania [Mr. Stevens] pronounced this absurd. Sir, the joint Committee on Reconstruction held otherwise when they reported the bill which I have read, and therein provided that whenever the amendment shall have become part of the Constitution, and any State lately in insurrection shall have ratified the same, &c., such State should be entitled to representation in Congress. The framers of our Government also differed from the gentleman from Pennsylvania in this behalf. When this Government was organized under the Constitution, there were but eleven States in this Union. North Carolina and Rhode Island were not members of it. They were not represented in that First Congress which organized in 1789 in New York. They had no voice in the election of the first Executive of the nation. They were not in the Union or of the Union. Yet, sir, after this Government was organized, after the Congress had enacted laws, and especially the judiciary act, these States not in the Union, or of the Union, did ratify and accept the Constitution of the United States, and thereupon were admitted to representation in Congress. Upon their admission in June, 1790—a year after the first meeting of Congress—by special enactments the judiciary act of the United States was extended to each of those new States, the Congress thereby confessing that organized States not in the Union or of the Union might ratify the Constitution, and, by Congress subsequently assenting thereto, the ratification became valid upon the admission of such States to representation. ... To ratify a constitutional amendment is the exercise of the power of a State of the Union. So also is the election of Representatives and Senators of the United

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States. Many of the States now in the Union exercised powers of States before admission and preparatory to their admission as States. They formed constitutions of State government, elected Legislatures, chose Senators, which, under your Constitution, can only be done by a Legislature of a State. The moment the Congress of the United States, by admitting into the Union these new States, affirmed what was thus done by them in advance of their admission, and thereby those acts become as valid as any lawful acts done by them as States after their admission. If Congress had rejected the new States of course their acts as States were void and of no effect. So I submit the people of the insurrectionary States may proceed with the work of reorganizing State governments, the formation of a constitution, the election of a Legislature, and the formal ratification of the constitutional amendment and all that they do in that behalf may by the subsequent act of the national sovereignty by resolution be made valid. Let those States ratify the amendment, and thereby give some evidence of a fitness and desire to be restored to the equal powers of organized States in the Union. Instead of discouraging them as the gentleman from Pennsylvania proposes, and denying them the privilege even of petition for admission, let us stand upon the declaration of the joint committee that those disorganized States may ratify the amendment and that they ought to ratify it. Yet I reaffirm distinctly here, and do not wish to be misunderstood about it, that those insurrectionary States have no power whatever as States of this Union, and cannot lawfully restrain for a single moment that great body of freemen who cover this continent from ocean to ocean, now organized States of the Union and represented here, in their fixed purpose and undoubted legal right to incorporate the amendment into the Constitution of the United States. But, say some, there are two departments of the Government against this asserted power of the people of the organized States, the executive and judicial. My answer is, neither of these departments has any voice in the matter—no right to challenge the authority of the people. I have no concern or care for any influence which the President may seek to exert. He is powerless with the people. He can in no way reverse their final judgment. But we are told the Supreme Court of the United States will strike down this amendment, if ratified by three fourths of the organized and represented States and declared duly ratified by authority of an act of this Congress.

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I do not share in the fears thus expressed. That supreme tribunal of justice has no power in the premises. It is not a judicial question; it is a political question in the decision of which the Supreme Court can in nowise interfere. Gentlemen might as well claim that the Supreme Court might inquire into the question whether the State of Ohio, for example, is one of the States of the Union. That is a question decided by the sovereignty of the nation in Congress assembled, and when so decided the decision is final and conclusive upon every judicial tribunal in the land, Federal and State. The Supreme Court of the United States to undertake to adjudge the power of Congress to propose a constitutional amendment and the power of the people to affirm it! A Congress competent to enact laws is competent to propose amendments to the Constitution, and the States competent to elect a lawful Congress are competent to ratify a constitutional amendment proposed by such a Congress. Whether a State of this Union has levied war against the United States or has a republican constitutional State government, or is entitled to representation in Congress, or to choose electors for President and Vice President of the United States, or can rightfully exercise any of the powers of an organized State of the Union, are political not judicial questions, and can be decided only by the political department, the law-­making power of the United States, and from that decision there is no appeal, and there exists no power of reversal save in the people at large. Even the Supreme Court has always affirmed this. That tribunal so affirmed in Luther vs. Borden; it again so affirmed in the prize cases. But, sir, if that tribunal had never so affirmed no intelligent man at all conversant with the Constitution of the United States and the relations of the original States at the time of its adoption, and the mode and manner in which the Government of the United States was organized under it, could for a moment doubt that the action of the people over the political power of States and the relations of States was conclusive upon the judiciary, Federal and State. Let the amendment be ratified by three fourths of the organized and represented States and it is in vain that conspirators and aiders of rebellion will appeal to the Supreme Court to relieve them from the righteous and just provisions of the great decree of the people. Sir, the power of the people, organized under twenty-­six constitutional State governments and represented in Congress, to amend the Constitution of the United States and enact laws for the common defense and general

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welfare of the United States, and make treaties and declare war, and raise and support armies and navies, cannot be made a question in the Supreme Court or elsewhere, for it has been settled and forever closed both by the sword and the ballot. It is idle to suggest a reversal by the Supreme Court of the judgment of the people of the organized States of the Union, either upon the question of their constitutional power to crush and subjugate armed rebellion by arms, or of their constitutional power to govern insurgent and disorganized States by laws, statute and fundamental. The Supreme Court, therefore, cannot very well at this time of day raise the question whether the Thirty-­Ninth Congress of the United States is a competent body to enact laws or propose amendments, as was done by the Thirty-­Eighth Congress, representing the same States. If the court should be of that mind, it had better upon quo warranto proceed to determine whether we have a right to legislate upon any question whatever, for a Congress that can lawfully legislate can lawfully propose amendments, and States that can lawfully elect the Congress can lawfully ratify amendments to the Constitution of the United States. The original jurisdiction of that court is very restricted, as gentlemen well know, by the terms of the Constitution. Their appellate jurisdiction, both by the text of the Constitution and by every decision which that court ever made, depends exclusively upon the will of Congress. If, therefore, gentlemen are at all apprehensive of any wrongful intervention of the Supreme Court in this behalf, sweep away at once their appellate jurisdiction in all cases, and leave the tribunal without even color or appearance of authority for their wrongful intervention. Do this, and let that court hereafter sit to try only questions affecting ambassadors, other public ministers and consuls, and questions in which a State shall be a party, as that is the beginning and end of its original jurisdiction. By the ruling of that court thus restricted we may safely conclude that they will decide as heretofore, that the clause giving original jurisdiction in cases in which a State shall be a party only applies to those States that are members of the Union. If, however, the court usurps power to decide political questions and defy a free people’s will it will only remain for a people thus insulted and defied to demonstrate that the servant is not above his lord by procuring a further constitutional amendment and ratifying the same, which will defy judicial usurpation by annihilating the usurpers in the abolition of the tribunal itself.

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... A State without executive, legislative, or judicial officers bound by an oath to support the Constitution of the United States is not a State in this Union or of this Union for local or municipal purposes. It simply remains a State in the Union and of the Union, despite its treason and rebellion, for Federal purposes—that is, for Federal Government; and it is because the late insurgent States sustain this relation that your joint Committee on Reconstruction recognizes the fitness and propriety of the people of those States reorganizing constitutional governments in conformity with the provisions of the proposed amendment, now that their illegal Governments de facto, established in rebellion, have been stricken down by the sword. And here, sir, is the point at which I take my departure from the honorable gentleman from Pennsylvania. His bill is framed upon the idea, which he has expressed more than once in this body, that the people of these insurrectionary States are a foreign nationality, that they are alien enemies. This position the gentleman has attempted more than once here to fortify by reference to the utterances of the Supreme Court of the United States in what are known as the prize cases. I beg leave to say, notwithstanding the gentlemen’s reiteration of that statement, that the court never made any such decision. The language of the court was most carefully worded. They decided that during the war, the great public, solemn war waged by the Government of the United States against this armed insurrection, the Government of the United States had a right, upon its own election, to treat the insurgent States as though they were a foreign nationality—not that they were so; not that the Government declared that they were so; not that the Government ever intimated by recognizing in them the rights of belligerents that they were foreign nationalities, but that, in the assertion of the nation’s rights and to crush rebellion by arms, the Government of the United States might of its own election for the time being recognize them as entitled to the rights of belligerents, and treat them as though they were foreign nationalities. The words of the court are, “they were enemies, though not foreigners.” Sir, I will not with my present convictions, under whatever pressure, here or elsewhere, assent to any legislation which on its face recognizes the gentleman’s dogma as that at any time from the hour when treason fired its first gun on Fort Sumter to the present moment any rood of the Republic was dissevered from the rest and made foreign territory.

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The States lately in rebellion were and still are within the jurisdiction of the United States; and therefore it results, notwithstanding their treason, that the moment the Government of the United States by force of arms was able to establish within the lines of South Carolina its courts of justice, it might hold any rebel or other criminal against its laws to answer at the bar of its own courts without being charged with any departure from the Constitution, which expressly requires that all persons tried for crime against the laws of the United States must be held to answer in the State and district, previously prescribed by law, in which his crime was committed. ... Mr. Speaker, while I am willing to exert all the essential powers of this Government as it now stands in protection of life, liberty, and property in the insurgent States, to govern them, if need be, as they now are for years, I will never, with my present conviction of duty, incorporate by law upon the statute-­book of this Union a provision which knocks out the corner-­stone of the fabric of American Government. I do not forget, sir, the words of Washington, transmitted to us. When about to surrender his public trusts he declared “the basis of our political systems is the ‘right of the people to make and alter their constitutions of government.’” The gentleman, doubtless for humane purposes, puts into this bill, in the seventh section, a provision that—

under the pretense of throwing guards about the sacred right to liberty, to take away the right of a free people to amend and alter their constitutional government at their pleasure, subject only to the limitations of the Constitution of my country. What does the seventh section say? “All laws shall be impartial, without regard to language, race, or former condition.” Why sir, in its fullness and extent it is a declaration by statute in advance that these States shall not exclude from the right of suffrage or from office aliens in their midst, and not merely aliens, but men who come into their midst as paid spies or hirelings of foreign Governments; because, forsooth, they are come of another race or speak another language. Let the laws for the protection of personal freedom be the same for the alien as for the citizen; but let the laws regulating political rights restrict their exercise to the citizen. Sir, I am not to be thus driven into a violation of the letter and spirit of the Constitution of the country. Under it the rights of the States are as sacred as those of the nation; its express provision is that— “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.”

All laws shall be impartial without regard to language, race, or former condition. If the provisions of this section should ever be altered, repealed, expunged, or in any way abrogated, this act shall become void and said State lose its right to be represented in Congress.

I do not propose myself to support any such legislation, for the reason that with my present convictions the Congress of the United States has neither the power nor color of power to do this. It is in vain that gentlemen say it is only to protect the freedmen in their rights. God knows I am ready to go as far as he who goes the farthest under your exclusive legislative power in those disorganized States, and of which I have already spoken, to protect every one of them in all their rights: the right to enjoy the fruits of their toil; the right peaceably to assemble and petition this Government for a redress of grievances; the right to participate in the reorganization of the governments of the insurgent States; but I am not going, under the pretense of a mawkish humanity,

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In strange conflict with this is the proposition of this bill, that if the State organized and admitted under it exercise the essential powers of local State government thus reserved to the people, contrary to the provisions of this act, the State shall lose its right to be represented in Congress. The equality of the States and the equality of men in the rights of person before the law is what the Constitution enjoins and the people demand. ... I think instead of being a bill of reconstruction it is a bill of destruction; instead of being a bill of restoration it is a bill of disunion and perpetual dismemberment; instead of a bill to restore the disorganized States of the Union it is a bill to convert them into vassal provinces. ... I look upon both these bills as a manifest departure from the spirit and intent of our constitutional amendment. I look upon it as an attempt to take away from the people of the States lately in rebellion that protection which you have attempted to secure to them by your constitutional amendment. I do not say that all those people are entitled to mercy or consideration

B. Ratification, doc. 61

at the hands of the American people and of their representatives in Congress assembled, yet I do say that there is something grander in magnanimity and mercy than there is in stern, relentless, even-­handed justice. A great people’s power shows likest God’s when mercy seasons justice. Vengeance is not duty, not forgiveness crime. The amendment before the loyal people and about to be approved I trust by them and made part of the Constitution, secures to all, even to those who organized conspiracy against the nation’s life and offended by their crimes as men never offended before since nations began to be, “the equal protection of the laws.” In what is soon to be the nation’s measure for restoration and unity there is neither confiscation nor banishment into returnless exile, but forgiveness, by which that great body of guilty criminals are restored to the privileges of citizenship and guarantied the equal protection of the laws. . . . I know that four hundred thousand of the bravest and noblest of the Republic have fallen by traitor hands, martyrs in defense of your country and mine, of your Constitution and mine. In the presence of this great crime and the wrongs thus inflicted, this proposed act of general forgiveness and amnesty, securing to each, however guilty, the equal protection of the laws by the combined power of the nation, is a sublime humanity which challenges a parallel since man was upon the earth. There stands the covenant: no State in this land shall deny to any person the equal protection of the laws. It was a needful provision. It is intended to hush the cry for blood against the guilty by the power of a sovereign decree, as that was done by the Supreme Power in the case of the first murderer. All the guilty with the innocent, the just and unjust alike, “shall all have the equal protection of the laws,” and be held to answer only to the laws, and be condemned only by the laws. Stand by that great amendment for equal rights and equal protection. There is strength in it; the strength that abides in an inviolable justice. There is peace in it; that peace which comes of laws which are just to all and oppressive of none. The gentleman would stay the people in their wise purpose by enacting a law to take from a million men the immunities and privileges of citizens. Let the question be decided by the people. Whatever that decision may be I will bow to it; if they accept the amendment I will stand by it; if they reject it I will then do whatever it seems to me my duty, under the powers committed to me as a Representative of the people, authorizes and requires me to do. But until that question is passed upon I protest against this proposed legislation, so utterly for-

eign to the spirit of the pending constitutional amendment and to the manifest will of the nation. Mr. STEVENS. I would ask the gentlemen how many of these States have already rejected the amendment? Mr. BINGHAM. I had closed what I had to say; but as the gentleman from Pennsylvania [Mr. Stevens] has asked the question, I can only answer him that as far as I am advised all of the States lately in rebellion which have considered it in their Legislatures, with the exception perhaps of Arkansas, have rejected it. Mr. STEVENS. Arkansas has rejected it. Mr. BINGHAM. I do not so understand it, but I am not going to dispute with the gentleman. If they have rejected it it does not follow that they will not all yet accept it. Mr. STEVENS. The most votes they got for it were four. Mr. BINGHAM. I will repeat what I have said already: that if three fourths of the organized and represented States put this amendment into the Constitution of the United States, it will bind the insurgent States and give them the benefits of it as well, whenever in good faith those States choose to accept it, while, in the mean time, it will also bind us and empower us by law to secure full and equal protection to all. For that reason I ask that the bills be referred to the joint Committee on Reconstruction.

61 Indiana, Gov. Oliver P. Morton’s Message to the Legislature, Majority and Minority Committee Reports, Ratification of the Fourteenth Amendment January 11, 18, and 23, 1867

Governor’s Message, January 11, 1867 * Gentlemen of the Senate and House of Representatives: ... The people of the North have not been animated by a spirit of resentment and revenge in their dealings with 349

* Indiana House Journal, vol. 1, 21, 46–52 (1867).

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the South since the conclusion of the rebellion. On the contrary, they have earnestly hoped that the people of the South would kindly and sincerely accept the situation, and co-­operate with them in the settlement of our national difficulties upon a permanent basis; and had the Southern people met them in this spirit, adjusted their Constitutions and laws to the new order of things, rendered justice and given equal protection to all their citizens, confiscation, disfranchisement and punishment would scarcely have been demanded. When, upon the surrender of Lee’s army, General Grant gave absolution to the Confederate officers and soldiers, upon the sole condition of not again bearing arms against the Republic, the nation acquiesced in this conduct almost without a murmur; and when all the rebel forces laid down their arms, and the war was at an end, the misfortunes of the South, the fallen and prostrate condition of the people, inspired in the North feelings amounting almost to compassion and forgiveness. At the time, the South declared full submission, asked for lenient terms, but claimed no rights, and dictated no conditions. But since then, the temper of her people seems to have undergone a radical change. They have passed from submission to defiance, and the mercy which was extended to them has been requited in bloody persecutions upon the Union men and negro population in their midst. Their course has had its natural and inevitable effect upon the public mind of the North, which is rapidly passing: from mercy and forgiveness to the stern demands of justice, and the exaction of the penalties for treason. The logic of events against which the arguments of the statesman weigh not, moulds the public mind, and sweeps it on rapidly from conclusion to conclusion. The impossible of yesterday is the possible of to-­day, and the radicalism of to-­day becomes the conservatism of to-­morrow. The patriotic and loyal members of Congress who voted for the “Winter Davis” in 1864 would stand aghast before it as a scheme of reconstruction in 1866. It was then thought the wisest thing to be done, but we can now see, in the light of two years’ experience, how fatal it would have been to the Nation. It was manifest, from the beginning, that no scheme of reconstruction could be, or ought to be, accepted by the people of the North, which did not involve the equalizing of representation in Congress and the Electoral College. The people of the North could not consent, honorably to themselves, nor without a disregard to the principles of Republican government, that those lately in rebellion should return

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to their places in the Government and retain in perpetuity the right to represent four millions of colored people whom they deprive of all political rights, which would give to them, after 1870, at least thirty votes in the Electoral College and in the House of Representatives. Should the Southern States be permitted to return without the rectification of this great wrong, it would constitute a source of constantly increasing dissatisfaction in the North, would be regarded as an intolerable burden, and would dangerously threaten the future peace of the country. I have received from the Secretary of State of the United States an official copy of a joint resolution passed by Congress at the late session, two-­thirds of each House concurring, proposing to the States an amendment to the Constitution of the United States, which I herewith submit to your consideration. The first clause of the amendment establishes the great fact that all persons born in the United States are subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside, and that no State shall abridge the privileges or immunities of citizens of the United States, or deprive any person of life, liberty or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. The second clause establishes equality of representation in the lower House of Congress and in the Electoral College, by excluding from the basis of representation any race or class of people who are deprived of the right of suffrage, and thus takes away from all the States the right to have representation for the colored people in their midst, unless they first give to them the right of suffrage. It proceeds upon the principle that white people do not have their political rights enlarged by reason of having in their midst a colored population whom they deprive of all political rights; upon the principle that people who are not good enough to have representation for themselves are not good enough to give it to others; upon the principle that people who are not qualified to vote themselves are not qualified to duplicate the voting power of others. The third clause declares ineligible to any National or State office any person who, having once taken an official oath to support the Constitution of the United States, afterwards committed perjury by going into the rebellion. This will tend to make treason odious by excluding from office the perjured politicians and political paupers who brought on the war.

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The fourth clause declares the validity of the public debt, forever forbids the assumption or payment of the rebel debt, and prohibits the payment of any claim for the loss or emancipation of slaves. The four clauses constitute one amendment, which was submitted to the people of Indiana for their approval or rejection at the late election. It establishes the great principle of national unity and citizenship, equality of representation, disability for treason, the good faith of the nation to her creditors, and guards the nation in future times against the corruptions of the rebel debt. It is of inestimable value to the country, and can not be safely substituted by mere legislation which is liable to repeal or destruction at the hands of the Supreme Court. The cardinal principles of reconstruction should be planted in the Constitution, whence they can be uprooted only by the same process by which they were established. No public measure was ever more fully discussed before the people, better understood by them, or received a more distinct and intelligent approval. I will enter into no argument in its behalf before this General Assembly. Every member of it understands it, and is prepared, I doubt not, to give his vote for or against, on the question of ratification. I venture, however, to recommend that you give to it your speedy consideration, and hope that its ratification will soon be published to the world as a declaration of the spirit and purpose of the people of Indiana. But what if the Southern people reject the amendment? But what if they continue this reign of terror, this flagrant disregard of liberty and life? Do they imagine that the North will recede, or that affairs will be allowed to remain as they are? These things are impossible. A quarter of a million of lives have been lost, billions of money wasted, the tears of the widow and orphan are flowing, the shrieks of the murdered freedmen are heard, Union men are flying for their lives, and now the blood of the nation is up, and the cry for vengeance is abroad in the land. Let the people of the South flee from the wrath to come. Let them put away the perjured traitors who hurried them into rebellion and now darken their counsels, and make haste to abandon their sins, and accept the proffered terms. The Constitutional provision declaring that the United States shall guarantee to each State a republican form of government, was not intended to furnish merely a paper guaranty, but authorized the government of the United States to interfere in a certain contingency, with

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the government of a State. The guaranty is to be made by the United States—that is, by the government of the United States, which is not the President or Congress, but both together, and must, therefore, be a legislative act. The President could not establish a State government and accept it finally as loyal and republican in its form, and legal and complete in its structure without assuming that he is the government of the United States, which would manifestly be absurd. What the extent of this power is has never been settled by any precedent; and has not been defined by Kent, Story, or any of our writers on Constitutional law. It is a vast undefined power, given to the United States to guard the States against revolution, anarchy or change to monarchical or aristocratic government. If a State government has been destroyed by rebellion, the United States must set up or re-­establish a republican form of government. If a State government should be converted into an aristocracy the United States must restore it to a republican form. How, or in what manner this shall be done is not marked out by the Constitution, and must, therefore, as far as we can judge, depend upon the circumstances of each case. The government is armed with supervisory power to keep the States in their orbits by maintaining within them republican governments, and the measure of power must, therefore, be the extent of the means necessary to accomplish the purpose. It is a well recognised principle of Constitutional law, that where a duty is enjoined, all the powers necessary to the performance of the duty are included. Where a certain demand is made by the Constitution the means necessary to produce the result must be inferred, else, the demand would be nugatory. The only measure, therefore, we can give to this power is that it embraces whatever may be truly necessary to guarantee to each State a republican form of government. If a State government falls into anarchy, the United States must re-­establish it upon a republican basis, and must be held to have the right to employ whatever instrumentalities are necessary for that purpose. Ordinarily, and when the country is in a normal condition, the subject of suffrage is in the control absolutely of the several States, and has been so treated from the first formation of the Government, and may be regarded clearly as one of the reserved rights of the States. But, if a State government shall fall into anarchy, or be destroyed

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by rebellion, and it is found clearly and unmistakably, that a loyal new one can not be erected and successfully maintained without conferring upon a race or body of men the right of suffrage, to whom it has been denied by the laws of the State, it would clearly be within the power of Congress to confer it for that purpose, upon the principle that it can employ the means necessary to the performance of a required duty. Not that Congress could make a Constitution for a State, in which the right of suffrage should be fixed, but that it could call a Convention to form a new Constitution and establish a new government, and prescribe the qualifications of those who should vote for the members of that convention and participate in the organisation of the new government. The power which I claim for Congress is vast and dangerous, and should be exercised with deliberation, and only in case of clear necessity, as it trenches directly upon the general theory and structure of the Government, yet it unquestionably exists. If, when other remedies have failed, it be the clear and deliberate judgment of Congress that loyal Republican State governments can not be maintained except by conferring the elective franchise upon the negro race in those States, Congress may confer it upon the ground that it is necessary to the performance of a prescribed duty. In this view it is not necessary to regard the rebel States as Territories, as the constitutional provision applies, in express terms, to States. As a practical question it cannot be supposed that four millions of free colored people can for a great time be kept in a state of political vassalage and denied their voice in the government by which they are controlled, and which they help to support. As a political question, our Republican theory, which asserts that “government exists only by the consent of the governed,” and that “taxation and representation” should go together, does not admit that suffrage shall be limited by race, caste, or color. As a question of natural right, it is hard to say that suffrage is not a natural right, when upon its exercise may depend the possession and enjoyment of all other acknowledged natural rights. It is hard to say that a man has a right to life, liberty, and the pursuit of happiness, and yet has no natural right to a voice in that government by which these other rights will be protected or denied. But as all other natural rights are subject to restriction and limitation for the general welfare of society, this should be no exception to the rule. The proposition at once to introduce to the ballot-­box

half a million of men, who but yesterday were slaves, the great mass of whom are profoundly ignorant, and all impressed with that character which slavery impresses upon its victims, is repugnant to the feelings of a large part of our people, and would only be justified by necessity resulting from inability to maintain loyal republican State governments without them. But the necessity for loyal Republican State Governments that shall protect men of all races, classes and opinions, and shall render allegiance and support to the Government of the United States, must override every other consideration of prejudice or policy. If it be found necessary not to accept the present State Governments in the South, and to exercise the great power which has hitherto lain dormant in the Constitution, the people of the South will have the consolation of knowing that it is their own act and deed. By the unrestrained slaughters of Memphis and New Orleans: by the unpunished murder of loyal men; by the persecution and exile of those who adhered to the Union; by the contemptuous rejection of the generous terms that were offered, they are fast proving that the extraordinary powers of the Constitution must be summoned to cure the evils under which the land is laboring. Let them take warning, and speedily reform their ways before they have driven the nation to a point where theory, passion and prejudice must all give way to the stern necessity of establishing new governments that will protect all men in equal enjoyment of life, liberty and property. But come what will, the Nation will live, and its unity and power be established. Throughout the late conflict, we discerned the hand of God leading the Nation through blood, to a purer morality and clearer perception of the rights of men, and cannot doubt that in His own time, and by His chosen means, He will conduct it safely through this sea of troubles to a fraternal peace, unstained by oppression, unbroken by rebellion, and crowned with the choicest blessings ever vouchsafed to any people. OLIVER P. MORTON.

Senate, January 18, 1867 *

Mr. President: The Select Committee to whom was referred Senate Joint Resolution No. 1, entitled a “Joint Resolution ratifying certain proposed amendments to the Constitu352

* Indiana Senate Journal 97–98 (1867).

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tion of the United States,” beg leave to report that they have had the same under consideration, and have carefully compared the same with the original copy of the proposed amendments, and find it to be correct. The committee report the same back to the Senate, with the following amendments to wit: add the following resolutions to the engrossed joint resolution to wit: therefore, Be it resolved by the General Assembly of the State of Indiana, That said proposed amendments to the Constitution of the United States are hereby accepted and ratified on the part of the State of Indiana. And be it further resolved, That the Governor be authorized and requested to forward an authenticated copy of this joint resolution to the Secretary of State of the United States. And when so amended they recommended its passage. Which report was concurred in. The question being, shall the joint resolution pass? [The vote was 30 in the affirmative, 16 in the negative.] So the joint resolution passed. Ordered, That the Secretary inform the House thereof.

House, January 18, 1867 *

Mr. Shuey moved to suspend regular order of business, to enable him to make a report from the Select Committee on Constitutional Amendment. Which was agreed to. Mr. Shuey then submitted the following report: Mr. Speaker: A majority of the select committee, to whom was referred Joint Resolution 1, entitled, a Joint Resolution accepting and ratifying an amendment to the Constitution of the United States, proposed by Congress to the Legislatures of the several States, beg leave to report that they have had the same under consideration, and recommend the following, to wit: In the third line of the third section of said proposed amendment, between the words “President” and “Vice President,” strike out the word “or” and insert the word “and;” and when so amended, they recommend its adoption. In the opinion of the committee, the important and salutary propositions contained in said amendment have been most fully discussed before and by the people of this State, and in accordance with a just and enlightened public sentiment, the people of this State * Indiana House Journal, vol. 1, 101 (1867).

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have, at the last general election, most emphatically declared in favor of said amendment; and that therefore this Legislature should promptly ratify the same. Which was laid on the table. Mr. Honneus, from the same committee, made the following minority report: Mr. Speaker: The minority of the committee to whom was referred Joint Resolution No. 1, for the adoption of the proposed amendment to the Federal Constitution, not being able to agree with the majority, respectfully submit their objections: First. The proposed amendments are brought forward at a time when the public mind is too much excited by the events of the past six years, to consider with that degree of calmness necessary to a wise decision of questions so vital to the welfare of our country, as the radical changes therein proposed would involve. Second. When submission by a Congress in which only about two-­thirds of the States of the Union were represented, must raise a question as to the validity which in after times may affect the stability of the Government itself. For whatever may be the judgment of the House as to the legality of the amendments so submitted, changes in the organic law ought to be of such a character, and so adopted, as to stand the test of time, and meet the approbation of the people of the whole Union. Third. The objects and purposes for which they are brought forward and pressed upon the country, are merely for partisan purposes, designed to impress upon the Constitution the political dogmas of a radical party, and to perpetuate power in the hands of a minority of the white people of this country, by forcing into our political system the odious doctrine of negro equality. Fourth. The first section places all persons, without regard to race or color, who are born in this country, and subject to its jurisdiction, upon the same political level, by constituting them “citizens of the United States, and of the State wherein they reside,” thus conferring upon the negro race born in this country the same rights, civil and political, that are now enjoyed by the white race, and subject to no other conditions than such as may be imposed upon white citizens, including, as we believe, the right of suffrage. Fifth. But lest there might still be power in a State to prescribe color and race qualifications for voting, the second section reduces the congressional representation in any such State, “in proportion which the num-

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ber of male negroes over the age of twenty-­one years so excluded, shall bear to the whole number of male citizens twenty-­one years of age, in such State.” Thus giving to the States which may adopt negro suffrage, a permission for so doing, in the form of increased federal power; and furnishing those States (our own inclusive) which limit the right to vote to “white men,” by a corresponding loss of federal power. This is done under the pretense that it avoids the present inequality in federal representation, while the present unfair advantage in favor of New England, on account of her resident non-­ voting population, is carefully preserved. Thus the balance of power, which this section would thus distribute, could only be regained by extending the right of suffrage to the negroes in all the States, and when this has been effected, federal representation will be based, as it now is, “upon the whole number of persons in each State,” without regard to age, sex, race or color. The purpose, therefore, of this section is not to equalize representation, but to enforce negro suffrage. Sixth. The third section is ex post facto; it seeks by disfranchisement, to impose a punishment for crime not prescribed by law at the time the crime was committed. It disfranchises all of that class of persons therein named, who “shall have engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof,” but denounces no penalties against those who may hereafter commit the same act. It makes no distinction between those who may have unwillingly engaged in rebellion or insurrection, and those who may have been compelled to do so, and it vests the power in Congress alone to absolve the parties from the penalties it prescribes, to be exercised only by a two-­thirds vote of each house. It would be difficult, in our opinion, to frame a law more thoroughly the offspring of passion, and less in accordance with sound policy and statesmanship. But to place such a provision as this in the Constitution—the organic law which is designed to last for ages, affecting, as it does, past offenses and offenders only, and containing no guarantees for the future, and that must become obsolete at the end of the present generation, is an act of folly that vengeance and not statesmanship could sanction. Seventh. The fourth section is a cheat and a fraud. It denounces a debt—the rebel debt—which has no legal existence, that there may be a precept to fasten upon the people forever the present heavy burden of our public debt, with all its immunities and exemptions

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from any part of the weight of taxation, under which our people are laboring. The Supreme Court of the United States has recently decided that under the Constitution, as it now is, Congress may authorize the States to tax the stocks of National Banks, as they are, upon Government bonds; but if the Constitution shall be so amended as to declare that “the validity of the public debt of the United States, authorized by law, shall not be questioned,” it is quite certain that any further legislation, by which any part of the Government business shall be made to rest upon the bonds issued for that debt, whatever it shall be in the form of taxes, or otherwise, will be held to conflict with the constitutional immunities thus secured to them. We are unwilling that the moneyed interest of the country shall be thus guarded and protected, and the expense of the laboring masses, and while we have faith in the people that they will faithfully pay all that the Government owes, we do not think it wise for them to tie up their hands on this subject, and fetter their future action, for the sole benefit of capitalists, who alone are able to buy and hold bonds, and live on the interest of their money thus invested. Eighth. The fifth and last section clothes Congress with the power “to enforce by appropriate legislation the provisions of this article.” Just what power is thus conferred upon Congress, it would be difficult to say. If no more is intended than to confer the ordinary power of bringing the provisions of the article into effect, then it would seem to be wholly useless, for by the terms of the Constitution, all legislative power is vested in Congress; but if by the word enforce, some new authority is to be understood, some new force is to be placed in the hands of Congress, then it may be of importance to see how far such a provision might be used to increase the centralizing power of the Federal Government. We have seen so many instances of stretching the powers of government in the last few years, by resorting to new and startling constructions of what seemed to be plain provisions, plainly written, that we feel the time has come when proposed amendments should be free from all ambiguity; and therefore we are unwilling to sanction any new proposal to confer power upon the Federal Government, by amending the Constitution, until we know its precise scope and meaning. Ninth. The majority of this committee style the proposed amendments as “important and salutary.” They are important from the fact that the moneyed power in this country is trying to bring about the same state of af-

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fairs now existing in Germany, and other monarchical governments, by making the laboring classes pay tribute to the aristocracy. If taxing the laboring man, and not taxing the rich bond holder on his bonds, is “salutary,” we of the minority propose to take no physic from these learned doctors. As for the people deciding in favor of these proposed amendments, we do not believe; but we do believe, if the people of Indiana had a chance of voting on the proposed amendments, they would cast one hundred thousand majority against them. If, in the language of the majority of this committee, the proposed amendments “have been most fully discussed,” they have likewise been most thoroughly misrepresented by the orators of the Republican party, before the last general election. For the reasons thus briefly stated, we are unwilling, as the representatives of a portion of the State of Indiana, to bind hereto the changes proposed in the Federal compact, and shall therefore record our votes against the joint resolution, by which it is proposed here assent shall be acceded. F. H. C. Honneus, John H. White, W.B. Carter.

62 US House, Cruel and Unusual Punishments Bill, Debate January 28, 1867†

Mr. KASSON. I move to suspend the rules, so as to enable me to introduce a bill to enforce a provision of the eighth amendment of the Constitution, and I ask that the bill be read. The bill was read, and is as follows: Whereas it is declared by the eighth amendment of the Constitution of the United States that no cruel and unusual punishments shall be inflicted within its jurisdiction; and whereas it appears that in certain parts of the United States inferior tribunals are attempting to establish the barbarous practice of punishing offenses against the law with the whip and scourge, applied to the bodies of free citizens of the United States contrary to said provision of the Constitution and against the principles of civilization and the practice of all free Governments, and tending to degrade the privileges and personal liberty and republican citizenship; Therefore, Be it enacted, &c., That any judge, justice, or other civil officer who shall hereafter adjudge, order, or direct that any person, being a citizen of the United States and brought before him for trial or judgment, or in any way subject to his jurisdiction touching any offense alleged to have been committed by him, shall be punished by lashes or blows, or by any other mode of physical torture; and any executive officer, or other person, who shall execute or attempt to execute any such judgment, order, or direction, shall be held to be guilty of a high misdemeanor, and on conviction thereof before any court of competent jurisdiction, shall be punished by a fine of not less than $500 nor more than $5,000, or by imprisonment for a term of not less than six months nor more than six years, or by both such fine and imprisonment, in the discretion of the court.

...

House, January 23, 1867 *

The hour having arrived for the consideration of Senate joint resolution No. 1—a joint resolution accepting and ratifying certain amendments to the Constitution of the United States, proposed by Congress to the Legislatures of the several States. The same was taken up. The question being, shall said Senate joint resolution No. 1, pass? Mr. Shuey moved the previous question. Which was seconded by the House. The question being, shall the main question be now put? It was so ordered. [The vote was 56 in the affirmative, 36 in the negative.] So said Senate joint resolution No. 1 passed.

* Indiana House Journal, vol. 1, 184 (1867).

...

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† Cong. Globe, 39th Cong., 2nd Sess., 810–11 (Jan. 28, 1867).

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The SPEAKER. The regular order of business is the consideration of the bill introduced, under a suspension of the rules, by the gentleman from Iowa, [Mr. Kasson.] The question is upon ordering the bill to be engrossed and read a third time. ... Mr. KASSON. ... I desire to say that the Constitution of the United States expressly prohibits the infliction of cruel and unusual punishments. We have the right to enforce all provisions of the Constitution of the United States. The infliction of physical torture in any form upon a citizen of the United States has been for very many years, if not always, without example in the judicial history of this country. I admit that the system of torture as applied to slaves did exist in certain parts of the United States, but I deny the infliction of physical torture upon those who are endowed with the rights of citizenship is usual. The attempt is now being made to carry over this incident of the condition of slavery and apply it to those who are now in freedom, full citizens of the United States of America, and endowed with the personal rights that belong to any other class of its citizens. I believe it, therefore, to be the duty of the Congress of the United States to take early action to prevent what is now both cruel and unusual from becoming simply cruel and usual. And the sole object of this bill is to assert the national authority, the right to administer the provisions of the Constitution by the enactment of laws like this. ... Mr. SPALDING. I desire to ask my friend from Iowa [Mr. Kasson] one question, the answer to which may influence my vote upon this occasion. I desire to know whether the gentleman thinks Congress has the right to prevent the State of Iowa or any other State from so legislating as to inflict corporal punishment for crime, for petty larceny, or anything of that sort. And I ask him also if when the Constitution was framed three fourths of the States did not authorize the infliction of corporal punishment? Mr. KASSON. If the gentleman will recollect, I took the ground in the debate the other day, in which ground I was supported, I believe, by the House, that the Constitution of the United States in all its clauses was to be interpreted by the condition of the country and of the citizens to whom those clauses applied. I hold that whenever the infliction of corporal punishment has become unusual and is admitted to be cruel then this

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clause of the Constitution applied irrespective of the practice of a former century. Otherwise there can be no progress and civilization or any protection of the rights that result from progressive civilization. ... Mr. SPALDING. That is very true so far as it regulates slavery. He is right there, but this is a different subject. It is the assumption of power on the part of Congress over State Governments without reference to the disloyal States at all. Mr. KASSON. On the contrary, it is using the power conferred by the Constitution to protect personal rights in this country. I do not think there can be any reasonable doubt of the power of Congress to protect personal rights guarantied by the Constitution. The Constitution says that the citizens of one State shall have all the privileges and immunities of citizens in any other State, and I think Congress has the right to protect our citizens in the enjoyment of these rights. If there be doubt about that construction I hope it will not come from that portion of this House who believe in the dignity of manhood and the protection of the rights of all our citizens in times like these. ... Mr. WILLIAMS. I would like to suggest to the gentleman from Iowa before the question comes up again the propriety of an inquiry in the meanwhile, whether the amendment which his bill recites does not refer entirely to the administration of justice in the Federal courts and under Federal law. I think it has been generally understood by the profession and the courts, if it has not been so formally adjudicated, that these amendments were intended only as a limitation of the powers of Congress. Mr. KASSON. Not in relation to the personal rights guarantied by the Constitution. The Constitution guaranties the right of trial by jury in civil cases described, and that has been held to apply to the practice in the Federal courts only. That relates to the form and administration of justice. The clause to which I have referred relates to the rights of persons. Mr. BINGHAM. In respect to the clause of the Constitution to which the gentleman refers, being the eighth of the amendments of the Constitution of the United States proposed by the First Congress, I beg leave to say he will look in vain for any legislation like this now proposed, either passed or attempted hitherto to be passed, by virtue of that article. The bill to which the gentleman refers, to prohibit the sale of men into slavery, does not rest upon the eighth article of amendment, but on the

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thirteenth article of amendment; neither does that bill, like this, provide for sentencing State judges to imprisonment for six years in the penitentiary for rendering any judgment in the premises. One word further as to the gentleman’s statement that the provision of the eighth amendment has relation to personal rights. Admit it, sir; but the same is true of many others of the first ten articles of amendment. For example, by the fifth of the amendments it is provided that private property shall not be taken for public use without just compensation. Of this, as also of the other amendments for the protection of personal rights, it has always been decided that they are limitations upon the powers of Congress, but not such limitations upon the States as can be enforced by Congress and the judgments of the United States courts. On the contrary, the Supreme Court, when presided over by men who never were suspected of mere partisan judgments, whose ability and integrity were acknowledged by all and challenged by none, ruled invariably as I have stated. If these limitations upon your power confer power to legislate over the States, why not enforce them all by penal enactment? When the gentleman is through I should like to be heard somewhat on this bill. So far as we can constitutionally do anything to prevent the infliction of cruel punishments by State laws I wish to see it done. I trust the day is not distant when by solemn act of the Legislatures of three fourths of the States of the Union now represented in Congress the pending constitutional amendment will become part of the supreme law of the land, by which no State may deny to any person the equal protection of the laws, including all the limitations for personal protection of every article and section of the Constitution, and by which also the Congress will be empowered by law to enforce every one of those limitations so essential to justice and humanity. ... The question being taken on the motion that the bill be referred to the Committee on the Judiciary and be printed, it was agreed to.

63 US House, Bill for the Restoration of the Southern States, Vote to Recommit to Committee on Reconstruction January 28, 1867*

The SPEAKER. The first business in order after the expiration of the morning hour is the consideration of House bill No. 543, to restore to the States lately in insurrection their full political rights, ... Mr. STEVENS. ... I also further modify my substitute by striking out the seventh section as printed, as that has been somewhat objected to. ... I now desire to request the gentleman from Ohio [Mr. Bingham] to withdraw his motion to recommit, until after we have attempted to amend this bill in the House under the five minute rule. After that shall have been done, if it shall be found that we cannot perfect it in such a manner as will satisfy the House, then the gentleman can be understood as having the right to renew his motion to recommit, and we can vote upon the question of reference then. Mr. BINGHAM. I desire this House to decide, and I desire the opportunity to decide for myself, whether we shall recede from the principles of the pending constitutional amendment to the extent to which this bill does as it now stands. I do not, therefore, withdraw my motion to recommit, for the grounds upon which I made it at first still stand untouched. ... Mr. BLAINE. I desire to address an inquiry to the gentleman from Pennsylvania, [Mr. Stevens.] We are differing here upon a point in reference to which the country at large cannot understand the ground of our difference. The gentleman from Pennsylvania is on the part of the House the head of the joint Committee on Reconstruction, and he has a very able body of associates, embracing, I may say, the picked men of this Con357

* Cong. Globe, 39th Cong., 2nd Sess., 813–17 (Jan. 28, 1867).

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gress. That committee, comprising, if I may be permitted to use a partisan phrase, men ranked and recognized as “radical,” enjoys, as I understand, the confidence of this House. Now, why it is that members on the radical side of the House should come to loggerheads on a question of the reference of a bill to that committee I want to understand. I am disposed to vote for the reference of this bill to that committee because I have confidence in the committee. Mr. STEVENS. I will only say I know very well that the reference of the bill to that committee is the death of the measure. The gentleman from Maine [Mr. Blaine] I suppose does not know it. Mr. BLAINE. I do not know it, and the country does not know it. That is just what I want to have explained. ... Mr. BINGHAM. ... I desire to make one further remark. I do not concur in the declaration of the venerable gentleman from Pennsylvania, that the recommitment of the bill to the committee is equivalent to its death. Mr. STEVENS. The gentleman will recollect that I did not ask his concurrence. In all this contest about reconstruction, I do not propose either to take his counsel, recognize his authority, or believe a word he says. The SPEAKER. The gentleman from Pennsylvania is not in order. ... Mr. PIKE. We understand if this is recommitted to the Reconstruction Committee it is dead. Mr. BINGHAM. I protest against that understanding. Mr. PIKE. The question is whether any life shall remain in the bill. Mr. STEVENS. It ought not to have occupied this much time, for I hardly expected the gentleman from Ohio to agree to my proposition. ... The question was taken on referring the bill, as modified, to the joint Committee on Reconstruction; and it was decided in the affirmative—yeas 88, noes 65, not voting 38;

64 Mississippi, Legislative Committee Report, Rejection of the Fourteenth Amendment January 30, 1867*

Mr. Speaker: The Joint Standing Committee on State and Federal Relations, to whom was referred the message of the Governor and accompanying documents having reference to the Amendment of the Constitution of the United States, proposed by Congress as Article 14, have duly considered the subject, and instructed me to make the following report: History has taught how exceedingly difficult it is to establish any form of Government and definitely settle its powers. The interests to be conserved by it are susceptible of almost infinite modifications. These should, as far as practicable, be reconciled and harmonized. It may not be prudent to venture on the untried experiment of improvement, from the mere suggestions of theory. Unless defects have been clearly discovered, which retard or impair the beneficial operation of Government, or which endanger its purity and integrity, it were wise to let the Constitution alone. A new element of power introduced might, in a manner (now unforeseen,) disturb the harmonious working of the system. The functions of the national and local governments, in their relations with each other, are most nicely adjusted. The precise boundaries of their orbits it may not be possible to define. Time, precedent, judicial construction and the acquiescence of the people, have put to rest questions which, in their day, imported serious disturbance. Again and again State and Federal authority have come into contact on new points, but forbearance, patience and calm discussion have been sufficient for their settlement, without an alteration of fundamental law. It were safe to say that a dissatisfaction on the part of the South, with the Constitution, in the whole, or any

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* Weekly Clarion (Jackson, MS), Jan. 31, 1867, 2. [See also Mississippi Senate Journal 196 (1867). —Ed.]

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of its parts, or with any of the powers conferred on the Federal Government, did not produce the late revolution and civil war. The civil war has closed with two facts, indisputably established, universally accepted and recognized by the people of the South. First, that slavery is forever abolished. Second, that the Federal Union is indissolvable. The State Convention of 1865 so declared. The Mississippi Convention of that year held this language, “The institution of slavery having been destroyed in the State of Mississippi, neither slavery nor involuntary servitude otherwise than in the punishment of crime, whereof the party shall have been duly convicted, shall hereafter exist in this State.” An ordinance passed 9th of January, 1861, “to dissolve the Union between the State of Mississippi and other States united with her, &c., &c., is hereby declared null and void.” The people in the highest form in which they can exert sovereign power, have declared that slavery does not and shall not hereafter exist, and that the secession ordinance is null and void. For thirty years prior to 1860, slavery was the only seriously disturbing element in national politics. The controversy assumed a sectional character, because slavery was local. Now that the irritating cause has passed away and now also that there has been a full abandonment of a claim of right in a State to withdraw from the Union, there would seem to be a complete adjustment and (one that promises to be final) of all and everything that has been in dispute between the sections. The Committee see nothing in the intrinsic merits of the proposed amendment in the manner of its adoption by Congress, or in the circumstances that environ the State of Mississippi that recommend its ratification. Every important amendment paves the way for future changes. Prior to our late troubles, all the amendments made to the Federal Constitution were in the nature of limitations and restrictions on power. The one proposed is so comprehensive—touching so many points, and including so many subjects that have heretofore belonged exclusively to State cognizance that for a long time there must be embarrassment, confusion and interference between the Federal and State jurisdictions. It is recommended as a cure for our present distempers. The good which its friends are assured it will bring may all turn to ashes in practice, and instead of remedying grievances, it may entail on the country a long train of evils. Three quarters of a century have pretty clearly marked

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the lines which separate the Federal and State judiciary. Judicial decisions and history have defined what class of subjects belong to the one or the other jurisdiction. This amendment would disturb, to a degree which no jurist can forsee, the established relations between the Federal and State Courts. It would transfer to the former a supervisory and appellate control over the latter, in a very large class of subjects that now belong to the exclusive cognizance of the State tribunals. It confers on Congress large and undefined power, at the expense of the reserved rights of the States. It transfers to the United States a criminal and police regulation over the inhabitants of the States, touching matters purely domestic. It intervenes between the State Government and its inhabitants on the assumption that there is an alienation of interest and sentiment between certain portions of the population. And that such intervention is for the benefit of one class against the other. It tends to create distrust and jealousy between the white and black races, and perpetually to disturb and keep alive these evil passions. It invites appeal from the domestic to the Federal judiciary, on questions arising on local law, on the predicate that the State courts will not deal between the parties with fairness or impartiality. It inculcates on the colored population a distrust of State law and authority for the protection of person and property, and to regard both as alien and inimical—and constantly to require the legislative and judicial corrective of the Federal power. 2d. The amendment introduces new rules, or attempts to enforce them on the States, in regard to citizenship and the elective franchise. All persons, natives of the United States, or naturalized, except Indians untaxed—are declared to be citizens of the United States, and of the State where they reside,—and if the elective franchise is denied or abridged to any male inhabitant of the State 21 years of age, the basis of representation shall be reduced in the proportion such male citizens shall bear to the whole number of male citizens 21 years of age in such State. It is obvious that the object is to compel the Southern States to accept negro suffrage, on pain of the reduction of their representation in Congress and the Electoral College. If one-­half the males in Mississippi over 21 years of age were negroes, then to deny or abridge suffrage to them would cut down representation in the proportion they bear to the white males over 21 years of age, which would be to reduce it one-­half.

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As now prescribed in the Constitution, the electors for Representatives in Congress are those who have “qualifications requisite for electors of the most numerous branch of the State Legislature.” Each State determines for itself the qualification of electors, and thus determines who may vote for Representatives in Congress. It so happens that this feature of the amendment though of general application, can have but little practical operation except in the States lately slaveholding. It makes citizens of the United States and of the States—of the four millions of blacks. It confers on them the elective franchise on the same terms as enjoyed by the whites; or if withheld or abridged, it reduces their influence in the House of Representatives and the Electoral College quite one-­third. In the other States this element of the population is so small that its influence would hardly be felt in the elections. It would add about one-­third to the body of citizenship in the Southern States; perhaps in two of them it would give the preponderance to the colored race. In several of the Middle, Western and Northern States, the blacks have been, and still are, kept under political disabilities. These States have not thought it to be for the public weal that any of them should be admitted to the privileges of the ballot. The franchise of voting is not a universal right. In no age or country has suffrage been universal. Everywhere it has been withheld from the female sex. Everywhere in ancient and modern civilization it has been confined to males, and such of them as had a prescribed quali­fication. A wise statesman once said, “That Government is a contrivance of human wisdom to provide for human wants.” Free institutions, representative government, can repose on no other basis than the virtue and intelligence of the people. The ballot, with safety, can be lodged only with those who have intelligence and knowledge sufficiently to understand principles, to reason of policy, and to measure men. When the scheme of government is so contrived, that ultimate power is with the people,—that from them and by them all public functionaries are chosen, and to them the final appeal is made on all political subjects—whether of fundamental law, or temporary expediency,—especial care should be taken that the voting class should not be swollen by sudden and large infusions of ignorance and prejudice. It cannot be pretended that the lately enfranchised blacks are, as a body, either morally or intellectually competent to vote. They have never had any concern or participation in public affairs. In the main they are

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destitute of the simplest elemental training. They have no habits of thought, are incapable of comprehending our system of government, and of reasoning upon and apprehending measures of wise statesmanship. Such a step is counter to experience and practice from the very organization of Government. The naturalization laws offer citizenship only to the white races. Applicants must serve an apprenticeship in the art of self-­ government. They must live here long enough to study our institutions, to become familiar with American ideas and principles, to learn the nature and duties of citizenship, before they are entrusted with its responsibilities. Surely the German and Irishman, and other European emigrants, are better fitted to be invested with this high privilege, the first moment of landing on our shores, than the colored race so recently emancipated. 3d. The fourth section degrades and disfranchises a most useful, intelligent and respectable class of our citizens—in the form of the most odious and tyrannical— by ex post facto law. ... 4th. The Constitution prescribes the mode of amendment. Congress by a majority of two-­thirds of each House, proposes amendments to the State Legislatures or Conventions, which when ratified by three-­fourths of the States becomes part of the instrument. The Congress is composed of Representatives of the people and the States. Each State, regardless of territory and population, is entitled to two Senators. An amendment made in accordance with the letter and intendment of the Constitution, must first secure the approval of two-­thirds of the people, represented in the House of Representatives, and the like number of States represented in the Senate, and must be ratified by three-­fourths of the Legislatures, or Conventions representing the people of the States. If any of the States are kept compulsorily out of the Senate or House it cannot be said that such States and people have concurred in an amendment proposed in their enforced absence from Congress. Nor can it be said that such an amendment has passed by the constitutional majority, for the excluded States and people have had no part in the vote, and have not in the legal mode expressed their assent thereto. If any of the States were voluntarily unrepresented when this fourteenth amendment was recommended,

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the question might and would be different. But such is not the fact. The position taken by the government of the United States, towards the people of the Southern States, was that they had by military combinations and insurrection forcibly opposed and resisted the authority of the United States, and that the war was persecuted for the single purpose of re-­establishing the national authority and maintaining the Union. The government in all its departments, uniformly insisted that the southern States were rightfully and legally members of the Union and their people, citizens of the United States. ... The 13th amendment to the Constitution proposed by Congress in 1865, was submitted to each of the thirty-­ six States,—It was acted upon by the Legislatures of the Southern States, ratified by nearly all of them. Their vote was received, recognized and counted by the Secretary of State, (under the act of Congress for that purpose,) and by their adoption, as much as the States of the North, East and West, it was made part of the Constitution. An eminent Judge of the Supreme Court of the United States has held that so soon as the insurrection was suppressed, and civil law and order were restored, the Constitution became operative and supreme, and no tribunal unknown to it would try and convict the citizen for offenses against the United States. The same doctrine has been recently announced by the entire bench of the Supreme Court. In view of all this, it would seem to be too clear for cavil or debate, that the United States are estopped to deny that the States lately in insurrection are members of the Federal Union. If members, they are States in the Union, for all purposes, equal in rights with the others under the Constitution. The logical deductions necessary and irresistible from these repeated, deliberate, official acts of the United States is, that the moment the military and forcible combination against the laws and authority of the same was overcome, and the Federal supremacy was reinstated, and law and civil tribunals were replaced, then the work of preserving the Union was accomplished, and the States at once resumed their proper places and relations in it. If Mississippi is not now entitled to every benefit of the Constitution, to all of the rights of a State in the Union, as completely as New York and Indiana, then the Constitution has not been maintained, and the Union has not been preserved.

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It is impossible, in our complex system, that a State can occupy a middle-­ground. It is revolutionary, subversive of fundamental principles, that a State may be in the Union for some purposes, and out of it for others. That she may, through her Legislature, ratify an amendment of the Constitution, and at the same time be excluded from the consideration and vote on the amendment in Congress. So far from according with the spirit of the Constitution, it is in disagreement with all right ideas of Representative Government to hold in abeyance any of the powers of a State. To deny to the State representation, and especially to withhold from her a voice in Congress, on changes proposed to the organic law, particularly affecting her, and at the same time, to levy on her people direct taxes, which can only be apportioned on the representative basis, and all other burdens of Government, is to hold the State and people under the disability of a conquered territory. War, foreign or domestic, works no alteration in the Constitution—it neither enlarges nor diminishes the powers of the General Government. Our fathers contemplated the contingency of domestic conflict and strife, hence they conferred on Congress the power to suppress insurrections. The grant of power was for the very purpose of perpetuating the Constitution, and the Union under it—not to make the insurrection the pretext and occasion to pervert the one and subvert the other. The claim, as one of the consequences of the war, that the States engaged in it, have been subjugated, is but another form of speech for the doctrine that the United States may conquer part of itself. The assumption that twenty-­ five States can govern the other eleven in a mode different from that prescribed in the Constitution, is nothing more or less than a subversion of the Constitution and the Union created by it. There is no such thing known to the Constitution as a power in Congress to expel a State for any cause from the Union. There is no rightful power in Congress or all the departments of the Government combined to refuse admission to their seats of Senators and Representatives from Mississippi, for no other reason than because they are accredited from that State. The Senate and House are respectively the judges of the election and qualification of their respective members. The enquiry is limited to an examination of each individual applicant for a seat.

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What the qualifications are, are plainly written in the Constitution. If the Congress can go outside of the constitutional rule and exclude an entire State delegation, because of their political opinions, or those of their constituents; then a majority in Congress may perpetuate its faction or party in power, by shutting the doors of Congress on all who do not agree with it. The Committee recommended the adoption of the joint resolution herewith reported. Simrall, Chairman

rebellion. One of these guarantees adopted by the present Congress at the last session, is embodied in the proposed amendment to the Constitution of the United States. I have received through the Secretary of State, a certified copy of said amendment, with the request that the same be submitted to you for ratification. In view of the diverse opinion well known to exist between the members of the General Assembly and myself, on all matters connected with the reconstruction of the State, I shall not take up your time by entering into an extended discussion of the features of the proposed amendment. I believe your minds to be made up how you shall vote on it and nothing I could say would have any weight with you, for or against. That I may not be misunderstood, however, before the country, in my views on so important a measure, I desire to say that I consider the amendment as just and proper, adjusting and settling, as it does, the rights of citizenship to all persons, without reference to race or color; recognizes the validity of public debt; repudiates the payment or assumption of 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; and imposes disfranchisement from holding office under the United States and State governments to a certain class of persons who have engaged in insurrection or rebellion against the government of the United States. These provisions meet my full approval, but I am not willing to accept the amendment as a finality for the admission and restoration of the late rebel States. I consider it to be within the province, and to be the duty of Congress, to require of these States, as additional guarantees, that they shall, by constitutional enactments, recognize and establish equal political rights in the privilege of the ballot to all men. I believe such to be the fixed will and intention of Congress, and I do not consider your ratification of the amendment would exercise any influence in changing or altering that determination. The idea and hope of readmission as a State on any other terms I regard as illusory, and the sooner the honest, well meaning mass of the people realize that fact and make up their minds to submit and act accordingly, will they assist in adjusting and settling our political relations with the federal government on a peaceful and permanent basis.†

Resolved by the Legislature of the State of Mississippi, That the State of Mississippi refuse to ratify the amendment to the Constitution of the United States, proposed by Congress as article fourteen. The following is the vote of the House of Representatives on the above report: [Yeas 88; Nays—none reported]

65 Louisiana, Gov. J. Madison Wells’s Message to the Legislature, Rejection of the Fourteenth Amendment January 28, 1867*

Governor J. Madison Wells delivered his annual message to the Legislature of this State to-­day. In reference to political matters, the Governor says:— The past year has been charged with great events, particularly to the people of the late rebel States. General elections have been held in all the States not engaged in the rebellion, for members to compose the Fortieth Congress of the United States. The questions at issue and decided in that contest were of the gravest and most important character. On full and deliberate consideration the people have pronounced in favor of the power of Congress to reconstruct these States. They have gone further and declared their purpose that these States shall not be restored to their former participation in the government until suitable constitutional guarantees are provided against present disloyalty and future * New York Herald, Jan. 29, 1867, 5.

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† [The Louisiana Senate voted unanimously to reject the amendment on February 5, 1867; the House did the same on February 6, 1867. See New Orleans Times, Feb. 6, 1867, 1; Times-­ Picayune (New Orleans, LA), Feb. 7, 1867, 2. —Ed.]

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66 Proposed “Compromise” Amendment, New York Times February 5, 1867, p. 5

Washington, Monday, February 4.

As has been frequently intimated in these dispatches during the past few weeks, the signs of a disposition on the part of the Southern people to meet Congress with propositions which partake of the nature of a compromise of existing difficulties are rapidly increasing. During the past two weeks a large number of prominent Southern men, who may be taken as representative men of their States, have been here and have had daily consultations with the President upon this important subject. Among these gentlemen may be named Gov. Sharkey, of Mississippi, Gov. Orr, of South Carolina, Gov. Par­sons, of Alabama, Gov. Marvin, of Florida and Gov. Worth, of North Carolina. The aim of the deliberations of these gentlemen has been to agree upon some measure as a basis of reconstruction, which will be adopted by the Southern people, meet the views of the President, and at the same time receive the approval of the majority in Congress. The result has been the preparation of the following amendment to the Constitution of the United States, and also an amendment to the Constitutions of the several States. The gentlemen named will at once bring the subject before the Legislatures of the Southern States for their action, and it will also be submitted to the Joint Reconstruction Committee of Congress. The President of the United States fully approves the proposition. Whereas, It has been announced by persons in high authority, that propositions from the Southern States having in view the adjustment of our present political troubles would be received and considered, &c., &c.,; therefore, Resolved, By the Legislature of the State of ——, that the Congress of the United States be requested to propose to the Legislatures of the several States the following amendment to the Constitution of the United States: “Article 14—Sec. 1. No State, under the Constitution, has a right of its own will to renounce its place in, or to withdraw from the Union, nor has the Federal Government any right to eject a State from the Union, or to

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deprive it of its equal suffrage in the Senate, or of representation in the House of Representatives. The Union, under the Constitution, shall be perpetual. “Sec. 2. The public debt of the United States, authorized by law, shall ever be held sacred and inviolable, 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 Government or authority of the United States. “Sec. 3. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States in which they reside; and the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. No State shall 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. “Sec. 4. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when any State shall, on account of race or color, or previous condition of servitude, deny the exercise of the elective franchise at any election for the choice of Electors for President and Vice President of the United States, Representatives in Congress, Members of the Legislature and other officers elected by the people, to any of the male inhabitants of such State, being 21 years of age and citizens of the United States, then the entire class of persons so excluded from the exercise of the elective franchise shall not be counted in the basis of representation.” Whereas, &c., Be it further resolved by the Legislature of ——, that the following article shall be adopted as an amendment, to become a part of the Constitution of the State of ——. “Article —.—Every male citizen who has resided in this State for one year, and in the county in which he offers to vote six months immediately preceding the day of election, and can read the Declaration of Independence and the Constitution of the United States in the English language and write his name, or who may be the owner of $250 worth of taxable property, shall be entitled to vote at all elections for Governor of the State, members of the Legislature and all other officers, the election of whom may be by the people of the State. Provided, That no person by reason of this article shall be excluded from voting who has heretofore exercised the elective franchise under the Constitution or

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laws of this State, or who, at the time of the adoption of this amendment, may be entitled to vote under said Constitution and laws.”

67 Delaware, Gov. Gove Saulsbury’s Message to the Legislature, Rejection of the Fourteenth Amendment January 1 and February 14, 1867

Governor’s Message, January 1, 1867 *

Fellow-­citizens of the Senate and House of Representatives of the State of Delaware in General Assembly met: ... Congress, at its last session, passed a joint resolution proposing an amendment to the Constitution of the United States, a certified copy of which has been forwarded to me by the Secretary of State, which at an early day I shall cause to be laid before you. Although the Executive of the State has no voice in the ratification or rejection of the proposed amendment, that question being one exclusively for the determination of the Legislature, it may not be improper that I should indicate the views I entertain upon the question submitted to your consideration; indeed I should but illy discharge the duties of the position I occupy, and be wanting in fidelity to the people of this State, if I failed, in their name and in their behalf, to protest against a measure so manifestly unjust to the people of the States of the Union. The framers of the Constitution wisely provided for its amendment in the modes prescribed in the instrument, in order that defects ascertained by long experience to exist might be remedied, but it certainly could not have been within the contemplation of the authors of that provision that amendments would ever be made, except upon the most urgent necessity, much less for the purpose of conferring upon one portion of the States undue influence and power in the government, by depriving another portion of the States of rights long enjoyed and essential to their well-­being and equality in the Union. The difficulty and embarrassment * Delaware State Journal and Statesman (Wilmington, DE), Jan. 4, 1867, 3.

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of the convention that framed the Constitution, arising from the diverse interests of the States represented therein, is a matter of history, but the patriotic men that composed that convention, looking only to the general good, and not to local or sectional interests, presented to the American people, as the result of their labors, the Constitution under which they and their descendants, until recently, have lived prosperously and happy. It is believed a faithful observance of its provisions would not more effectually secure the just rights of all, than can be effected by amendments such as that now proposed. The circumstances under which this amendment is presented, is, to say the least, unfortunate. The Congress that proposed it is composed of the Representatives and Senators of only a part of the States of the Union, and grave doubts are entertained by eminently wise and patriotic statesmen in reference to the authority of such a Congress to initiate measures looking to an alteration of the fundamental law by which the rights of all the States are, hereafter, to be ascertained. I have no hesitation in saying that whatever authority the present Congress may possess for the purpose of ordinary legislation, the doubts suggested in reference to its right to propose amendments to the Constitution are well worth the consideration of the American people. If the Senators and Representation of the States unrepresented in Congress had voluntarily excluded themselves from participation in the legislation of the country, the case would be widely different; but such is not the fact. They were seeking admission into the halls of Congress on the very day the resolution proposing the amendment was passed, and had been for a long time before. But in violation of the just rights of the States, and of the people they represent, and in violation of the plainest provisions of the Federal Constitution, they have been, and still are, purposely and studiously excluded from the legislative councils of the nation, and the right of the excluded States to representation is sought to be made dependent upon their adoption of this amendment. The right of the excluded States to be represented in Congress does not depend upon the adoption or rejection of this amendment, nor indeed upon the will or pleasure of the Congress that proposed it, but exists by virtue of their character of States in the Federal Union under the provisions of the Constitution, and the denial of this right is the exercise of unwarranted arbitrary power—is, in a word, usurpation and revolution. Whether the American people will submit either to the denial of the right of the Southern States to representa-

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tion, or that that right shall be made to depend upon the will of a party in Congress representing a minority of the people of the country, are questions that cannot long remain undetermined. Acquiescence in such usurpation will inevitably lead to despotism. Apart however from these considerations, there are objections to the proposed amendment inherent in itself, sufficient to warrant and demand its rejection by the Legislation of this State. The necessity of the amendment is predicated by Congress upon the propriety of a curtailment of the political power of the Southern States, and in one aspect the amendment is framed with that view; but it is apparent, an ulterior purpose, the bestowal of the elective franchise on the African race in this country, is likewise contemplated in the proposed alteration of the Constitution. Neither of these objects can be accomplished in the manner proposed without a manifest departure from the spirit of the Government as formed by the fathers of the Republic, and without manifest wrong and injustice to the States to be affected thereby. The possession of an undue preponderance of political power by either section of the country would inevitably tend to unjust and oppressive legislation towards the other. So far therefore as it can be accomplished an equalization of power between the two sections of the country should be maintained. Certainly it would not be the effort of enlightened statesmanship to invest either with such controlling influence as would constitute it permanently the governing section. Such however is the avowed object of the proposed amendment to the Constitution. The majority in Congress desires to secure to the Northern States, through this amendment, the permanent control of the Government, either by diminishing the number of representatives from the Southern States or by compelling these States to confer the elective franchise on the negro population within their limits, through whose influence and votes they hope to secure the permanent control of the legislation of the country. Incredible as it may appear, such is the proposition submitted by the American Congress, through this amendment, to the legislatures of this and other States. It may be gravely doubted, leaving out of view the demand that is made of the Southern people— that they shall ostracise and disgrace forever many of the best men among them—whether the Congress of the Nation contemplated or desired an acquiescence by the Southern people in these unjust and offensive demands, or whether the rejection of this amendment was not desired that it might be made the pretext for usurped

consolidation of power in a Congress composed exclusively of representatives from Northern States. Whatever may have been the expectation or object of Congress, the rejection of this amendment is demanded alike by every consideration of justice, patriotism, and humanity, and it is to be hoped that the Legislature of no Southern or Border State would be found so wanting in self-­respect, or so regardless of the rights and dignity of the State they represent, as to hesitate to reject a proposition so unworthy of consideration. The issues upon which the members of the present General Assembly were elected, and the emphatic declaration of the will of the people of the State, as expressed at the polls at the recent election, indicates so clearly that you will withhold your approval from a proposition so manifestly absurd and unjust as that contained in the amendment referred to, that I deem it unnecessary to submit a recommendation to that effect. GOVE SAULSBURY. Dover, January 1, 1867.

House, February 14, 1867 *

Mr. Reed, from the special committee to whom was referred the communication from his Excellency, the Governor, with reference to the resolutions of Congress, proposing a fourteenth article to the Constitution of the United States, submitted, as the report of the majority of said committee, the following preamble and joint resolutions, Which, on his motion, were read, as follows: ... Whereas in accordance with the provisions of the fifth article of the Constitution of the United States, the Senate and House of Representatives of the United States in Congress assembled, by a resolution passed in the first session of the thirty-­ninth Congress, begun and held on the first Monday of December A.D. 1865, have proposed a certain article of amendment to the said Constitution for the consideration of the Legislatures of the several States, which said proposed article of amendment is in the following words and figures, to wit: ... † And whereas the Governor of this State has submitted the said proposed amendment to this General Assembly; And whereas this General Assembly believes

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* Delaware House Journal 223–26 (1867). † [The text of the Fourteenth Amendment appears here. —Ed.]

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that the adoption of the said proposed amendment to the Constitution would be a breach of faith implied between the States at the time of the ratification of the Constitution; would deprive one section of this country of rights and privileges which have been guaranteed to them by the Constitution, would foster and excite bitter and unkindly relations between the citizens of different sections of the country; would delay, if not altogether prevent a restoration of a perfect union between the States, and would be destructive of the ends and purposes intended to be secured by the adoption of the Constitution; therefore Be it resolved by the Senate and House of Representatives of the State of Delaware in General Assembly met, That the members of this General Assembly hereby declare their unqualified disapproval of said proposed amendment to the Constitution of the United States, and hereby refuse to adopt and ratify the same. Resolved further, That a duly authenticated copy of the foregoing preamble and resolution be transmitted by the Secretary of State of this State to the Secretary of State of the United States. Whereupon, Mr. Corbin, from the same committee, submitted a minority report, Which, on his motion, was read, as follows: The undersigned, a minority of the special committee to which was referred the consideration of the amendment to the Constitution of the United States, proposed by the thirty-­ninth Congress, at the first session, beg leave to submit the following report: Whereas by reason of their participation in open rebellion against and hostility to the government of the United States, ten States are now deprived of representation in the national Legislature; And whereas it is the universal desire that they shall be admitted to the full and complete enjoyment of all the political privileges as members of the American Union as soon as the people thereof shall have manifested repentance for their past misconduct, and given some substantial guaranty for their deportment in the future; And whereas history affords no instance where more honorable, magnanimous or lenient terms were ever offered to any people who had raised the standard of revolt against a legally constituted government, than those tendered to the citizens of the late insurgent States by the proposed amendment; therefore Resolved, That in the opinion of this General Assembly the proposed amendment is an eminently just and

feasible basis of reconstruction, and one upon which the present unhappy differences could be adjusted, and should be ratified by the State of Delaware. CHARLES CORBIT, LEVI W. LATTOMUS*

68 Pennsylvania, Legislative Debates on the Proposed Fourteenth Amendment January 14–­February 6, 1867† Senate

In the Senate, Monday evening, January 14, 1867, on the bill entitled Joint resolution to ratify the amendment to the Constitution of the United States. ... [V] Mr. Searight. . . . The people whom I have the honor to represent in this body are opposed to ratifying these proposed amendments, and they expect me to say so here in my place, in their name and on their behalf. In obedience, therefore, to their wishes, and in pursuance with my own convictions of right, justice and duty, I shall, with the indulgence of the Senate, very briefly state some of the reasons why, in my judgment, these propositions should not be made a part of the Federal Constitution. In the first place I hold, sir, that it is manifestly the duty of Congress, in proposing amendments to the Constitution, to act in obedience to its existing provisions. This, I assert, sir, has not been done by the Congress which projected these amendments, and sent them here for our consideration. The Constitution plainly prescribes two modes, and only two, by which it may be amended. They are contained in article fifth, and are in this language; “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all

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* [On February 6, the Delaware Senate concurred with the House resolution rejecting the amendment on a vote of 6 to 3. See Delaware Tribune, Feb. 14, 1867, 4. —Ed.] † Appendix to Legislative Record (1866), I–­XCIX. [Bracketed roman numerals in the text indicate source pagination. —Ed.]

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intents and purposes, as part of this Constitution, when notified by the Legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress.” It is assumed by the advocates of ratification that these amendments were proposed by two thirds of both houses of Congress. This, Mr. Speaker, I do not concede; and the assumption is not warranted by the facts. The framers of the Constitution obviously meant that two thirds of both houses of a full Congress shall propose amendments. So important a power as this, involving, as it does, a change of the organic law of the land, was certainly not designed to be conferred on two thirds of both houses of a fractional Congress. . . . It is well known, sir, that during the entire period of incubation through which these amendments passed (and the period was protracted to an unusual length) eleven states of the union were denied the right of representation, and these the various states which are designed to be chiefly affected by these amendments. ... It is admitted to by the friends of these amendments, that the Southern States are competent, at least, to contribute a portion of the three fourths required for the ratification. In other words, it is argued that the Southern States are in the Union for the purpose of ratifying amendments, but out of the Union for the purpose of aiding in proposing amendments. This is an absurdity equaled only by one other, the absurdity of calling the radical party the Union party, the sole aim of which party is to keep the Union divided. ... The second section apportions representatives among the several states, according to their respective numbers—mark the word, numbers—not voters, as many suppose; but there is an exception to this. Whenever a State refuses to allow the negroes to vote, then the whole number of male negroes over 21 years of age shall be deducted from the basis of representation. . . . This, Mr. Speaker, I regard as a deliberate attempt to force negro suffrage on the South, and in case the South refuses to accept such a degradation, she is to be punished for her obstinacy by having a large reduction made from her representation in Congress. The people I have the honor to represent on this floor are not particularly in favor of negroe suffrage, and are not willing to punish the South for refusing to adopt it, and hence they are at a loss to see the propriety of ratifying this provision of the amendments.

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... [VI] Mr. Landon. Mr. Speaker, the amendments now under consideration guarantee to all persons born on American soil the privileges of citizenship, and the immunities of impartial suffrage before the law. They declare, in substance, that if the colored people are allowed to vote, then shall they be counted in the bases of congressional representation; if denied the elected franchise, then they shall not be counted. They affirm that no person shall hold office under the United States, or under any state, who having previously taken an oath to support the constitution, shall have engaged in insurrection or rebellion against the same. They exclude, in a word, from power and place, all perjured, red handed traitors. They affirmed the validity of our national debt, contracted for the preservation of the Government. They repudiate the Confederate debt, and all alleged claims or losses arising from the emancipation of slaves. They empower Congress with full authority to enforce these provisions by all necessary and appropriate legislation. These provisions are so mild and so necessary that the malignant hostility to them, from certain quarters, would be surprising but for the reflection that there never was a cause in the world’s long history so good, so just, so pure as to be exempt from bitter opposition. ... [VIII] If it be said the rebels have been pardoned by the President and all disabilities are thereby removed, my reply is, such wholesale forgiveness is a prostitution of pardoning power, and, therefore, the pardon is a nullity—while he who thus degrades his authority gives too painful proof of smuggled treason in his own heart. The deductions from all this are very plain. The sovereign people of the loyal States having fought the battles of the country and achieved the victory are now masters of the situation. Having saved the Government from rebel clutches, theirs is the right and duty to provide for the future peace and liberty of the whole land. They, and they only, should determine when and upon what terms the rebel States should come into the legislative power and fellowship. They have the rightful authority to amend the Constitution, or enfranchise the freedmen, and the traitor has no more right to participate in the decision of these matters than the horse thief has to sit upon the jury when his own case is being tried. In the broadest, strongest terms possible, the whole truth is condensed into a single sentence, the loyal people are the ultimate and supreme authority. Congress represents that authority; theirs is the right and duty to provide fully for

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the country’s safety; whoever and whatever throws itself athwart their pathway is to be set aside as treasonable in principle and usurping in practice. ... I will say that I dislike the second amendment. We cannot change it; but if I had been in the body which drafted it, I would have fought it to the very utmost. I shall vote for it, because we must vote for or against them all. It proposes to leave the four millions of colored people in the South at the disposal of the white rebels. It says to them, you may determine whether these men shall vote or not. I dislike that feature of the thing. I would never leave a colored patriot under the heel of the white traitor. . . . The way is clear. Do justice; give all men the rights of manhood. I demand that you shall give Robert Small the rights of a man; at least treat him as well as the rebel Robert Lee. Come squarely up to it; I entreat you, boldly meet the issue. . . . do you let the white rebels of Carolina or Florida vote, then in the name of Heaven command that the colored man in the same State shall vote. ... [X] Mr. Wallace. ... [XII] I have already attempted to demonstrate the equality of the several States, and in regard thereto come but repeat that for political privileges under the Constitution, they are and always have been equal, and that this equality cannot be changed without usurpation of powers not granted, and a total destruction of our form of government. If you introduce a superiority of political power in twenty-­six states, and an inferiority of the same in ten states, your government becomes one of force, and the inferior yields to the superior. . . . this is the spirit of absolute despotism, and will result in acquiring the shape and substance of it but too soon. This destruction of the equality and dignity of the several States is as much beyond the power of the General Government as was the right of secession beyond the power of the States. ... [XIII] In turning to look at the amendments separately, I shall consider them but briefly, as the reasons I have already given are to my mind the most potent that can be given. The first and fifth sections taken together, create a citizenship in all persons born here or naturalized, and give power to enforce the right of citizenship. This proposition, in the light of current events, means

that negroes are citizens, in that Congress shall have the right to protect them in that privilege. In taking care of the negro the amendment entirely fails to provide for a citizenship for the children of naturalized citizens who were not born here, so that under this clause the most illiterate negro is a citizen, whilst the person who comes into this country at five years of age and whose father becomes naturalized at once, is worse off than the negro. The second clause of this section prevents the states from abridging the privileges or immunities of citizens of the United States; in other words, negroes are citizens, and no state shall say they are not the equal of the white man in every sense. Privilege means “everything that is desirable to have.” Immunity—“a privileged freedom from everything painful.” By the one we obtain an actual good, by the other the removal of an evil. When the power to enforce these privileges and immunities in favor of the negro is vested in Congress, is it possible to conceive of any of the dearest rights of which we are possessed, that Congress may not bestow upon him also? Equal protection of the law, And the rights of life, liberty and property, with the right to enforce them by appropriate legislation by Congress, gives the power to enact laws regulating and controlling the liberty or property of the citizen and providing for equal protection of the law. If this be the power granted, what further needs have we of the State government? Consolidation is accomplished when this is perfected, for even if concurrent jurisdiction be granted to the Federal and the State governments the former are superior. ... [XIV] In the Senate, Tuesday morning, January 15, the Constitutional Amendments being the special order, the debate was continued, as follows: ... [XVI] Mr. Bigham. . . . I shall not go into these constitutional amendments in detail. The first is to guarantee State rights to every human being; it gives them no political rights at all, but it guarantees to them that States rights are the birthright of every human being. It is especially unkind in the Senator from Clearfield to make an onslaught on the Second Amendment. Suffrage is a natural right belonging to the states. Now, the object of the second amendment is precisely what the Senator from Clearfield is in favor of; it ratifies and confirms, for all future time, the power of the States to regulate this question of suffrage. In the Senate, Wednesday morning, January 16, the 368

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amendment to the Constitution being the special order, and Mr. Bigham being entitled to the floor, the debate continued as follows: Mr. Bigham. . . . There were two points touched upon by the senator from Clearfield [Mr. Wallace] in regard to which I shall say a few words: He assumed that the Supreme Court of the United States had recently passed upon certain questions in such a form that, as he appeared to think, very strongly confirmed the views which she sustained adverse to those involved in constitutional amendments. I do not so understand. ... I will make no attack upon the court, as the senator from Clearfield appeared to think we were anxious to do, for I do not believe that the court has decided any proposition in the way that the newspapers have ascribed to them, and as the ex-­Attorney General assumed. That court have not and dare not decide that this government has not the power to save itself from annihilation.—If it does its decision is now void.—If it does decide in reference to the war power of the Constitution of the United States, what the ex-­Attorney General appears to suppose that it did, it will decide what will never be sanctioned in any of the departments of the Government. In 1860 the Attorney General promulgated the opinion that no power existed in the government to save the nation. The people repudiated it; large armies and large navies were called into requisition, and for four years we demonstrated that this Government had power to save itself from destruction, and to punish its enemies. If the Supreme Court is weak enough to think that it can make any different decision, that it can decide in accordance with the executive opinions of five or six years since, its decision will fall stillborn before the public. ... These four propositions, constituting one amendment, as I said yesterday, I regard as simply incidental to the carrying out of what the senator from Clearfield [Mr. Wallace] admitted was a binding part of the Constitution—the amendment of two years ago. I have no doubt that the civil rights bill is constitutional; if there is no provision for it, the second section of the amendment abolishing slavery is ample warrant. It does no harm; it gives it a sanction by putting it in the Constitution of the United States in the highest form known to our government; therefore, I am in favor of it.

... [XXI] Mr. Taylor. . . . [XXII] What is there in this amendment so humiliating to the late rebels, and so revolting to the feelings of gentlemen on this floor? The first section confers citizenship upon all, without distinction of race, color or religion. To my mind, the justice and propriety of this provision is obvious, and I shall vote for it with satisfaction to my own conscience, and gratitude to Congress for squarely meeting the universal demand of the loyal States to destroy all legal caste within our borders. The second section, when stripped of all legal technicality and verbosity, simply provides that if a State shall choose to disfranchise any class or portion of its citizens, such state shall suffer a diminution of representative power in the Federal Union, in exact ratio to the number of her citizens so disfranchised. Although it is clear that the subject of suffrage is left, by the provision of this section, to regulate itself in each State, yet gentlemen who oppose it on the other side, are painfully exercised over this section. They think they see in it a deliberate attempt to force negro suffrage upon their brethren in the South. It seems necessary that we remind them that the provisions of the amendment apply the like to this and every other State in the Union. The subject of negro suffrage has been dragged into this debate, and although we have no desire to enter into a discussion of this subject at this time, I desire to ask the gentlemen who so persistently oppose it, to state upon what principle they base this great distinction? ... Sir, it is too late in the history of civilization to reply to this despised race they “have no rights that a white man is bound to respect.” That disgraceful doctrine has exploded with the despotic system from which it emanated. ... [XXIII] Mr. Burnett. . . . [XXV] My objection, Mr. Speaker, to the first clause of the amendment is of a two-­fold character. First, the object of the first clause was to meet the doctrine enunciated in the somewhat celebrated Dred Scott decision. In as much as the whole ground has been covered by the Civil Rights Bill that is proposed to be covered by the first clause of the amendments, I would oppose it, because under the Civil Rights Bill the negroes are protected in their persons, in their property, and in their reputation. Second, the language of the first clause, “that no state 369

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shall make or enforce any laws which shall abridge the privileges or immunities of the citizens of the United States,” is susceptible of two constructions. Now, if the right of suffrage is embraced in the words “privileges and immunities of the citizens of the United States,” then some future Congress, in placing a construction upon this first clause, if it become a part of the Constitution, may say that every State in the union shall grant negroes the right of suffrage, or they shall not be entitled to representation. Now, to show that there may be some difference of opinion on that subject, I beg leave to refer to the 4th volume of Washington’s Circuit Court reports, page 389, in which the court was passing upon the words found in the Constitution as it stands today, and that is the first clause of the second section of the fourth article of that instrument in which this language is used. “The citizens of each State shall be entitled to all the privileges and immunities of the citizens of the several states.” In placing a construction upon that language used in the Constitution, the court said: “The inquiry is, what are the privileges and immunities of the people in the several states? We feel no hesitation in confining all these expressions to those privileges and immunities which are in their nature elementary, which belong of right to the citizens of all other governments, and which have at all times been enjoyed by the citizens of the several states which compose this Union.” And, after reciting many rights, privileges and immunities, the court further says: “To which may be added the elective franchise, as regulated and established by the laws and constitution of the State in which it is to be exercised.” It is very true that in 18th Howard, 531, 2d Humphrey, 393, 6th Smith, N.Y., 408, 6th Peters, 762, the courts have taken both sides of the question, so far as the right of suffrage is concerned. I simply cite these adjudications of the court to show that this language is susceptible of more than one construction. If this becomes a part of the Constitution, Congress might declare that the words in the latter part of this section shall embrace the rights of suffrage. ... My objection to the second clause of the amendment is this, there is a covert proposition in the submission of this clause. The proposition is to force the Southern States to adopt negro suffrage under threat;

if they refuse, their representation in Congress shall be reduced. I believe that to be the object of this clause of the amendment. ... [XXXIV] In the Senate, Thursday afternoon, January 17th, the amendment to the Constitution of the United States being the special order, ... [XXXVI] Mr. Landon. . . . [XXXVII] Mr. Speaker, the Congress is a rump body. That is another point. My ten minutes are up, sir, and I will say just two words upon that and stop. I claim that the people of the loyal states are the sovereign power of this country. The people of the loyal states are the sovereign power at the ballot box, as they are and have been the sovereign power on the battlefield; they are the Government. Congress is the embodiment of those people; Congress is the people, and the people is Congress. Let Congress follow out the will of the people and their verdict is pending; and this whole question of reconstruction of the Southern States is in the hands of the people that saved the Government, and they are represented by the majority in Congress; and it is their power, their right, their province and their sworn duty to settle this case for the good of the country and the whole country, for the present and all coming time. If it is necessary to change the status of the state for the weal of the country, it is their power and prerogative to do it; if it is necessary to wipe out of existence these rebel States and resolve them into so much territory, they have the right and power to do it. I hope I am understood. I say that the whole power of the age and the country now concentres in Congress, as representing the millions of the people that saved the government, and it is their right, prerogative and duty to do anything and everything that the peace and perpetuity of the country require and demand. On that record, sir, side by side with the gentlemen on the other side of the chamber, I go to the world.

House

[XXXIX] In the House of Representatives, Wednesday afternoon, January 23d, 1867, Senate bill No. 3, entitled Joint resolution to ratify the amendment to the Constitution of the United States, being under consideration, Mr. Jenks addressed the house as follows: Mr. Jenks. ... 370

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[XLI] But let us examine these amendments themselves. By the first section is intended to destroy every distinction founded upon a difference in the caste, nationality, race or color of persons who have been or may be born in and subject to the jurisdiction of the United States, which has found its way into the laws of the Federal or State governments which regulate the civil relations or rights of the people. No law shall be made or executed which does not secure equal civil rights to all. In all matters of civil legislation and administration there shall be perfect legal equality in the advantages and securities guaranteed by each state to every one here declared a citizen, without distinction of race or color, every one being equally entitled to demand from the States and State authorities full security in the enjoyment of such advantages and securities. By this, in connection with the fifth section, the regulation of the civil relations of the State is placed under the control of the Federal Government, the States to be used simply as instruments to execute its will, and nearly their entire civil and criminal jurisprudence placed under the control of Congress. . . . The second section of the civil rights bill will give some idea of the manner in which Congress will exercise its power to regulate. ... There is no just ground to fear that the States will use their powers unjustly or for any considerable time to the injury of any portion of their inhabitants. Let the passions of the hour die away, as they soon will, and we have the strongest possible assurance to believe, that every advantage will be given to every class which can be enjoyed with safety to the community; more than this no reasonable man ought to require. The fact that the members of the same society are to some extent dependent upon each other, guarantees some degree of kindness and justice in their treatment of each other. ... [XLII] Mr. Mann. . . . [XLIV] It is said, Mr. Speaker, that we do not need this protection, that there is no need of adopting and ratifying this amendment, because we do not need it. That is a strange assertion for any man in in his senses to make. For thirty years before this war commenced there was no law in the South except such as vigilance committees permitted. Civil law had been made subordinate to mob law. The vigilance committee and the Bowie knife ruled these eleven states, and if we do not now, that we have the opportunity, as President Johnson has said, “establish the foundations of this

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Government upon the principles of justice,” I have no evidence that they will not continue in that course hereafter. I know that gentlemen make light of that statement, and say we do not need any protection, and ask us to go back to the good old days before the war. I do not desire to go back to those days. We have had quite enough of that already. In proof of this I will give you a picture of those good old days. I read from Mr. Greeley’s American Conflict, page 128: “In 18[3]5, soon after a few obscure individuals in the North began to discuss the subject of slavery, at a public meeting convened in the church in the town of Clinton, Mississippi, September 5th, 1835, it was “Resolved, That it is our decided opinion that any individual who dares to circulate, with a view to effectuate the designs of the Abolitionists, any of the incendiary tracks or newspapers now in the course of transmission to this country, is justly worthy, in the sight of God and man, of immediate death; and we doubt not that such would be the punishment of any such offender, in any part of the State of Mississippi where he may be found.” “The cry of the whole South should be death—instant death—to the abolitionist, wherever he is caught.” —Augusta (Ga.) Chronicle. “We assure the Bostonians, one and all, who have embarked in the nefarious scheme of abolishing slavery at the South, that lashes will hereafter be spared the backs of their emissaries. Let them send out their men to Louisiana; they will never return to tell their sufferings, but they shall expiate the crime of interfering with our domestic institution, by being BURNED AT THE STAKE.”—New Orleans True American. There are a number more of these extracts, but I will pass them over and come to an official document, so that it cannot be said these are mere newspaper statements. From the same work, pages 128–9, I read as follows: “At Charleston, S.C., July 29th, 1835, it was noised about that the mails just arrived from the North contained a quantity of abolition periodicals and documents. Public meeting was thereupon called, which the reverend clergy of the city attended in a body, “lending,” says the Courier of the next morning, “their sanction to the proceedings, and adding by their presence to the impressive character of the scene.” This meeting unanimously resolved that all the mail matter in question should be burnt, and it was burnt accordingly, the mails being searched and rifled for the purpose; although (says the Courier) arrangements had previously

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been made at the post office to arrest the circulation of incendiary matter until instructions could be received from the Department at Washington; and it might have been better, perhaps, to have awaited the answer before proceeding to extremities. But Mr. Amos Kendall, then Postmaster General, was not the man to ‘hunt a fault or hesitate dislike’ with regard to such mail robbery, though obliged to confess that it was not strictly according to act of Congress.” ... [XLV] They denounced the Tribune as an abolition paper, and they only had to say that any paper was an abolition paper to justify the rifling and burning of mails. And from 1838 down to the surrender of Lee, there was an entire suppression of the freedom of speech in those States. Not a syllable was uttered publicly or privately against slavery, unless surrounded by walls so thick that no one outside could hear for fear of vigilance committees and star chamber courts. ... There was not only the rifling of males, but a denial of the constitutional right of free speech, and whoever went down South was obliged to put a padlock on his mouth. ... [LI] In the House of Representatives, Thursday afternoon, January 31, 1867, on the Senate bill No. 3, entitled Joint resolution to ratify the amendment to the Constitution of the United States. Mr. Kurtz. . . . [LII] Whether the wording of the clause* already quoted will ipso facto, confer the rights of suffrage upon negroes or not, may be a question, but it is quite certain that the whole of the first section taken together, will give to Congress the right, by a simple statute, to thus confer the elective franchise. By a subsequent clause in this section it is provided, that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In no part of the proposed article, nor in the Constitution as it now stands, is there given a catalogue of the “privileges and immunities” of citizens, which by this clause the States are prohibited from abridging. In case of dispute, where exists the authority to define these “privileges and amenities?” By the fifth section of this proposed article, it is provided that the “Congress will have power to enforce, by appropriate legislation, the * [That is, the citizenship clause. —Ed.]

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provisions of this article.” This, it seems to me, undoubtedly confers upon Congress the power to define what are the “privileges and immunities” of citizens, as well as to impose penalties upon all who, under authority of any pretended State law, should deny or abridge these privileges and immunities. Should this amendment be ratified, and Congress, in pursuance of the authority conferred by the fifth section, provide by “appropriate legislation” to enforce the provisions of the first section, that is, by an act declare what shall constitute the “privileges and immunities” of citizens, in that catalog embracing the elective franchise; . . . could any one pretend that such an act of Congress would be unconstitutional, or that any election officer in Pennsylvania, who should reject the ballot of a negro, would not be liable to the punishment by such act provided? ... [LV] In the House of Representatives, Thursday afternoon, January 31, 1867, on the Senate bill No. 3, entitled Joint resolution to ratify the amendment to the Constitution of the United States. ... Mr. M’Camant. ... Now, Mr. Speaker, I don’t propose to discuss the constitutionality of these amendments—I am no lawyer, sir, and if I was I should not here enter upon such a discussion. It is enough for me to know, sir, that the best judges of law and the purest and most patriotic men of our country advocate the adoption of these amendments by the people of the United States. They believe them to be right and proper—and regard them as being necessary to secure to us the blessings of peace and freedom of every man, woman and child in the country—the freedom of speech and action which before the war was denied and even now is denied to every man who has not been a rebel or a rebel sympathizer, a secessionist or a traitor. Besides that, Mr. Speaker, these amendments were fully and ably discussed in the campaign of last fall, and are fully endorsed and well understood by the loyal North, and I will vote for them. ... [LVI] Gentlemen of the Democratic Party, let me ask you to be as true to the Constitution as has been the Republican organization. Stand by us in demanding from the South that our citizens and loyal men everywhere be protected by their laws in the enjoyment of all their constitutional rights. It will be well for you, as a party, and a happy day for the country, when your leaders

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have enough of patriotism and love of country in them to place your party in this position. We demand the freedom of speech and of the press; we demand, sir, a Union reconstructed upon the principles of universal justice to all men, whether they be white or black, and if Southern rebels cannot agree to such a Union let them go down and occupy the positions once held by their slaves. ... [LXVI] In the House of Representatives, Wednesday afternoon, January 30, 1867, on the Senate bill No. 3, entitled Joint Resolution to ratify the amendment to the Constitution of the United States. Mr. Deise. Mr. Speaker. To many persons, it may seem unnecessary, if not an ungracious task, to say anything against a measure which by the Constitutional exercise of the authority reserved to the States to reject all amendments to the Constitution which shall not commend the approval of three-­fourths thereof, is already practically dead. But sir, it is due to that large portion of the people of Pennsylvania, known as Democrats, and indeed, sir, it is due to the credit and honor of the whole Commonwealth, that this Amendment should not receive the assent of the Legislature, without the fullest discussion, and such a protest spread upon the journals of this House as its demerits deserve. ... It is not necessary for me to speak particularly as to the character of this action of Congress, for my colleague from Jefferson, [Mr. Jenks,] has demonstrated, I believe, to the satisfaction of this House that the legislation, of which this amendment is a part, was not legally adopted. However, Congress has submitted an amendment to the Constitution of the United States, and the first general objection to the amendment proposed is, that its several sections cover, under the heading of one article, four distinct propositions or amendments. It is not left with the State Legislatures to approve what they like and reject what they dislike. We must take all or none. This is against the precedent established in the amendments to the Constitution of the United States, heretofore adopted, where each proposition was separately considered and voted upon. ... There is another general objection to the joint resolution proposing this amendment, that of the two plans for its ratification within the option of Congress, namely: to submit it to the Legislatures of the States, or to conventions selected for the express purpose of considering amendments in the several States, they selected

the plan of submitting it to the Legislatures; thereby, by the precipitate actions of the Legislatures in some of the States, preventing any expression of the wishes of the people, and in all the States comprising the decision of this great question by an admixture with all other matters of Local, State and National concern. In making a radical change of this kind, nothing could have been more proper and reasonable than to give to the whole people a voice in its decision, unbiased by any other consideration. As it is, it is not in the mouth of any man to say that the people of this Commonwealth are in favor of or against this amendment. ... But if the manner of submitting this amendment to the people is objectionable, the amendment itself is vastly more objectionable. The first section declares that “all persons born or naturalized 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 deny any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of laws.” Unless under cover of the loose wording of this section, it is intended to establish negro suffrage, by declaring that all citizens of the United States are citizens of the States and that States may not deny any of the privileges or immunities of citizens to persons born or naturalized therein, the whole section is mere surplusage, conveying no additional right or safeguard not already conveyed in better form and hedged in and surrounded by the solemn sanction of the people in every State in the Union. Section second provides . . . * No rule is better settled in this country than that representation and taxation should be based on population. Probably no better rule could be devised, simple in its application, consonant with republican forms, fair and just in their operation. It is just as well settled that each State, for itself, has the right to regulate the suffrage within its own limits; to determine what persons shall be entrusted with the control of affairs, and who are most discreet and proper guardians of the public weal. In Pennsylvania it has long been determined that white male citizens, over the age of twenty-­one, 373

* [Here Deise reads the text of Section Two. —Ed.]

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were the proper persons to be charged with political duties. Pennsylvania has the right to give all females over twenty-­one years of age the same privilege; or to clothe the negro population over that age with the same power; or to restrict the suffrage to persons over thirty years of age; or to confer it on persons eighteen years of age. The right is absolute and unquestioned. Yet, for the exercise of this reserved and undoubted right, the people of Pennsylvania, if this amendment is incorporated in the Constitution, are to be punished by the loss of their whole negro population out of the count in the basis of representation, unless they allow male negroes over twenty-­one years of age the right to vote. Thus an attempt is made to force negro suffrage upon the States by the glittering prize of power in the national councils, and Pennsylvania is allowed to maintain her ancient and well settled laws only at the expense of one member of Congress lost, or shorn of one twenty-­fourth part of her present strength in the House of Representatives. The proposal is a degrading one. The only argument that can be urged in its favor is based on the assumption that the interests of the negro population of the country are not safe in the hands of white men. With how much more force might this argument apply to the adult white women of the country, and, indeed, to youths between ages of sixteen and twenty-­one, who are denied all participation in the choice of President and Vice President, representatives in Congress, executive and judicial officers of the State and members of the Legislature? ... The proposition was changed, so that Yankee women and children are all counted, as well as the negro in the negro suffrage States. But, in States that refuse to put the negro man upon a higher plane of dignity and social consideration than white women, pains and penalties are provided in this section, by which refractory Commonwealths are to be brought to the level of negro equality and Radical sentimentalism. I do not know how others may feel upon this subject, but I thank God for the sturdy virtue which has sustained the Southern people in their affliction and led them to reject this infamous amendment, though at the peril of Radical displeasure and resentment. [Loud applause]. By this action they have vindicated their manhood and added another weighty reason for their immediate admission to their proper and rightful share in the Government. . . . Does any man imagine that the people of Pennsylvania would proclaim negro suffrage were they to vote upon

it? They would not do so even in Connecticut, in fearful proximity to Massachusetts. Yet this amendment means nothing less. The proposition embodied in the third section, which almost amounts to a bill of attainder, cuts off all rebel heads at one fell swoop, by declaring “that no person who shall have engaged in insurrection or rebellion against the United States, or given aid and comfort to the enemies thereof, shall hold any office, civil or military, under either the State or National Government.” This proposition was sufficient to defeat the amendments in all the Southern States—the ratification of Tennessee being undoubtedly fraudulent. It was also sufficient to secure misgovernment and continual disquiet, if not a condition approaching anarchy, in every Southern State in the Union, in case the amendment had been ratified. . . . The control of State governments would have been turned over to Yankee teachers, bureau agents, cotton thieves and negro citizens. The mere citation of the provisions of this section, it seems to me, is enough to convict the projectors of this amendment of insincerity. They never could have supposed that any people were based enough to submit themselves to such conditions by their own volition. It is a mere scheme, as Wendell Phillips says, to ride over an election, and to cheat ten States out of their rightful voice in the selection of the next President. . . . The last section of the amendment provides “that Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” A like provision was tacked upon the constitutional amendment abolishing slavery, and is made the pretext of unlimited bureau appropriations and civil rights bills. This phrase of “appropriate legislation” is the invention of Hon. Charles Sumner, of Massachusetts, and speaks volumes for his scholarly and statesmanlike qualities. “Appropriate legislation” covers a vast deal of grounds and involves the expenditure of great sums of money. For a hundred years to come, I do not in the least doubt, the people will have cause to regret the day when Hon. Charles Sumner was allowed to spread himself at length upon the heretofore unsullied page of the National Constitution. Let us have no more “appropriate legislation.” ... [XCIV] In the House of Representatives, Tuesday afternoon February 5th, 1867, on Senate Bill No. 3 entitled joint resolution to ratify the amendment to the Constitution of the United States. 374

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Mr. Jones. . . . [XCVII] I will ask, therefore, the indulgence of the house to permit me to read extracts, from this proposed amendment, that I may comment upon them. “All persons born in the United States and subject to the jurisdiction thereof, are citizens of the United States—[This is very well], and of the State wherein they reside.” Then citizens of the United States are citizens of Pennsylvania. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” That takes all power of legislation away from Pennsylvania and gives it to the national Congress. Every citizen of Pennsylvania is a citizen of the United States; this Legislature is forbidden to make any laws abridging the rights of citizens of the United States, which includes the citizens of Pennsylvania. Therefore we might almost say that the necessity of having a Legislature for the State has been practically dispensed with. “Nor deprive any person of life or liberty without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.” Now, who is to be the judge as to whether any State denies to its citizens the protection of the law, or whether it convicts them of offenses without due process of law? I apprehended they do not mean to allow Pennsylvania to be the judge, even in criminal proceedings, because it says that “no person shall be deprived of his liberty.” * * * The merest vagrant, therefore, cannot be confined without having the right to appeal to the courts of the United States, for them to decide whether he has been deprived of his liberty justly and in due process of law. This section contains a proposition for us to sacrifice our rights in prerogatives without receiving anything in return. ... [XCVIII] In the House of Representatives, Wednesday morning, February 6th, 1867, on Senate Bill No. 3 entitled joint resolution to ratify the amendment to the Constitution of the United States. Mr. Allen. . . . [XCIX] [S]ir, it is not my purpose to go far and make any unnecessary remarks in the discussion of this question; and I will, therefore, pass to the consideration of the provisions of this amendment in comparison with the constitution of our own State. In the first section I find the words, “all persons born or

naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” I ask gentlemen if that is in contradiction, in any point, with the Constitution of the State of Pennsylvania, or with the Constitution of the United States? Sir, I find in the constitution of the State of Pennsylvania, in the first section of the article of “Declaration of Rights” the declaration, “All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.” Now, I ask, sir, if there is anything else than that in the first section of the proposed constitutional amendment? I must say, that throwing aside all personal and party predilections—all sympathies of that kind—and looking upon the question fairly, and as I deem, honestly, I cannot see one thing that is unjust in the provision. ... The gentleman on the other side of the house says that we, by this amendment, force upon those states the necessity of giving to the negro the right of suffrage. I cannot understand that this is the necessary result. . . . It leaves every person the right to choose his own associates, and does not say whether they shall be white or black. I want to do to those colored men what I want to do to any honest, deserving men. I want to give them the right of the protection of the law, the right to hold property, and all the rights which the Constitution provides for men—all the rights which this amendment indicates—in full. The gentleman from Clinton asserts that by adopting this amendment we put the negro on equality with ourselves in voting, and that the states must amend their constitutions to allow negroes to vote. There is no such necessity as this.

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69 Pennsylvania, Vote, Ratification of the Fourteenth Amendment

70 Rhode Island, Gov. Ambrose Burnside’s Message to the Legislature, Ratification of the Fourteenth Amendment

February 6, 1867*

February 2–7, 1867†

The House resumed the third reading and consideration of Senate resolution, No. 3, entitled “Joint resolution to ratify the amendment to the Constitution of the United States.” And the question recurring, Shall the resolution pass? A motion was made by Mr. Boyle, That the resolution be committed to the committee of the whole House, for the purposes of amending the same, thereby adding thereto the following words, viz: “Resolved, That in the opinion of this General Assembly, Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas and Arkansas are States of this Union, and should therefore be considered in ascertaining the number of States requisite to ratify the foregoing amendments, and make them part of the Federal Constitution.” On the question, Will the House agree to the Motion? The yeas and nays were required by Mr. Boyle and Mr. Mann, and were as follow, viz: [Yeas 31, Nays 57] So the question was determined in the negative. And the question again recurring, Shall the resolution pass? The yeas and nays were required by Mr. Davis and Mr. Koon and were as follow, viz: [Yeas 62, Nays 34] So the question was determined in the affirmative. Ordered, That the Clerk return the same to the ­Senate.

General Assembly—January Session, Providence

Senate, February 2, 1867 Senate.— . . . The proposed amendment to the Constitution of the United States, was considered. His Excellency the Governor said:—Mr. President, I did not intend to say anything during the debate with reference to the matter, till a remark from yourself, during your speech yesterday, almost induced me to say something at the time. You remember you made a statement that the people of the North and the Congress were under no obligation to allow the late seceded States to come back and resume their relations to the government of the United States, in case they adopted this amendment in good faith, and that you, for one, would not be favorable to such action till something further had been done on their part. Now, I am free to say, that I think you are laboring under a misapprehension. I think it is the feeling of the people, and the understanding with the people, that these States are to come in upon this condition. Although there is no specific contract existing which would let them in, and no absolute, specific promise given to that effect on the part of members of Congress, or on the part of the Northern people, yet it is clear to me that the Northern people generally, during this last canvass, were given to understand, that if they would sustain Congress in the passage of this amendment, or in other words, would sustain the general action of this last Congress, that the Southern States would be admitted as soon as they had fulfilled these conditions. I am quite sure that this was the case through the Northwest and through Pennsylvania, and I think that if the sense of this community were taken it would be found that three-­fourths of both parties would

* Pennsylvania House Journal 278–79 (Feb. 6, 1867). [The Pennsylvania Senate had previously ratified the amendment on January 2 on a vote of 19 to 12. See Pennsylvania Senate Journal 13–22 (1867). —Ed.]

† Newport Mercury (RI), Feb. 9, 1867, 2.

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say that we were under obligations to allow these States to return the moment they had in good faith adopted this amendment; and if I were voting for the amendment this morning I should vote for it with this distinct understanding that my opinion would be given in the direction of allowing these people to resume their relations with the government as soon as they had acquiesced in this amendment in good faith. As to the merits of this case, it has been fully and fairly discussed, and I shall not attempt to say anything upon that subject. On the motion of Mr. Hazard the further consideration of the amendment was postponed to Tuesday next. ...

71 Wisconsin, Gov. Lucius Fairchild’s Message to the Legislature, Minority Committee Report, Ratification of the Fourteenth Amendment January 10 and 22, 1867

Governor’s Message, January 10, 1867 *

Gentlemen of the Senate and Assembly: ... I herewith transmit for your consideration an attested copy of a resolution of Congress, proposing to the legislatures of the several states, a fourteenth article to the Constitution of the United States. This resolution has for many months been before the people, and during that time its several sections have been made the subject of earnest discussion. The people of this state are thoroughly familiar with its provisions, and with a full understanding of them in all their bearings, have by an overwhelming majority declared in favor of its immediate ratification. It has formed the basis of the campaigns, and has been made the issue of the late elections, in every northern state, and most of you are here to-­day, because your constituents knew that you deemed this amendment just and necessary. The people of the other loyal states have declared with like emphasis in its favor. I need therefore urge upon you no extended argument in support of it. Notwithstanding the fact that this amendment will unquestionably be ratified by the legislatures of more than two-­thirds of the states whose practical relations to the Union have never been suspended, it is the deliberate voice of the loyal masses, that before those who were so lately seeking the nation’s life shall be reclothed with the political rights which they forfeited by their treason, they must assent to the proposed amendment with all its guarantees, securing to all men equality before the law; a representation based upon population, but excluding from computation all classes who are deprived of political privileges, except for participation in rebellion or other crimes; the disqualification for office of all

Tuesday, Feb. 5. Senate.— . . . The special order, the resolutions to adopt the amendments of the Constitution were taken up. Mr. Currey moved the resolution be adopted, and that the House be called, and the Senate so voted. The Senate being called, the vote was as follows: Ayes—26. Nays—2. ... Thursday, Feb. 7. House.— . . . Mr. Sheffield, from the committee on the judiciary, called up the constitutional amendment, recommending that the House concur with the Senate in its adoption with an amendment. The amendment requests the Governor to cause copies to be made and sent to the Secretary of State and to the presiding officers of the two Houses of Congress. After remarks upon the amendment by Prof. Greene, of East Greenwich, and Mr. Sheffield, the House concurred with the Senate by a vote of 60 ayes to 9 noes.

* Wisconsin Senate Journal 13 (1867).

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who added to the crime of treason that of perjury, until such disqualification is removed by Congress; the eternal repudiation, state and national, of the rebel debt, with all claims for loss and emancipation of slaves; and the sanctity of the Federal debt, placing forever beyond the reach of traitor and demagogue, that due to our disabled soldiers, and to the widows and orphans of our fallen. This declaration of the people has been made temperately through the ballot-­box, at a peaceful election, but it has been made with a firm voice, not to be misunderstood, and from it there lies no appeal. This demand is not made with a desire to appropriate to ourselves undue political power, or to oppress or humiliate the southern people. It is made because in view of the terrible events of the past five years, we deem these guarantees necessary to the life of the nation, and we insist that those who saved that life have an undeniable right to demand all the guarantees essential to its future preservation. The course pursued by the north ought long since to have convinced all men who are willing to be convinced, that we heartily desire to live with the southern people upon terms of brotherly love, all laboring together for the good of our common country, and that we desire to enforce no terms which can be considered harsh or unkind. We have shown no vindictiveness in the past. We will cherish no hatred in the future. While the war was still raging, they were again and again implored to desist, with the assurance of pardon and restoration of the rights which they had forfeited. With the damnable and revolting scenes of Andersonville, Belle Isle, Salisbury and Fort Pillow, they answered our entreaties. And, later, when we had wrested from them their arms and paroled their armies, we, who suffered outrage and insult at their hands, who had seen our flag fired upon and dragged in the dust, our brothers killed by hundreds of thousands, and our land filled with widows, orphans and disabled men, we upon whom they had heaped a monster debt, still offered them terms. With the massacres of Memphis and New Orleans before our eyes, and with the blood of thousands of Union men— murdered because they were Union men—crying aloud for us for vengeance, we continued to offer them full restoration of political rights upon the terms embodied in this resolution. It was hoped that the sober second thought of the now ruling class at the south would lead to the acceptance in good faith of these terms. Events have proved that the hope was without foundation.

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They have been rejected so far as they have been acted upon, except by the people of Tennessee; rejected, too, with scorn and abuse of the government, and with the bitterest denunciation against our people. As the people of the south were impelled by a mysterious but All-­wise Providence to rebel against the government, that they might perpetuate in their midst the hideous crime of human slavery, and thus struck the blow which finally set free all who were in bondage there, so now that same Providence impels them to force the people of the north to do that which, but for their desire to conciliate, they would long since have done their whole duty. There is a time when “mercy to the criminal is cruelty to the state.” Gentlemen, that time has come. The day of compromise has passed, and passed forever. The day for doing that which is right in itself has come, and until we have done the right, and done it for all time, we have shamefully failed in our duty, not only to the world and to ourselves, but to the five hundred thousand brave men who gave their lives so freely that liberty might live. In my opinion, it is the duty of Congress, the only remaining hope of loyalty and justice at the south, to provide for the future establishment of loyal governments over those portions of the south lately in rebellion, which have refused their assent to this amendment, such governments to be based upon impartial, loyal suffrage. In this I advocate no disregard of the Constitution. I yield to no man in my reverence for that instrument. The fact that illegal local governments have been in operation there since the cessation of hostilities, forms no bar to the right of Congress to establish legal ones. Let Congress act, and the loyal people will sustain it, be the consequences what they may. No other course will settle our troubles beyond the possibility of a recurrence, and insure justice to the Unionists of that section. The safety of our country and the fulfillment of our pledges demand it. We have pledged our honor that we would stand by and protect those who were loyal at the south during the struggle just ended. It were better to have failed in the contest, then now to coldly turn our backs upon those who were “faithful found among the faithless.” We should deserve to be wiped out from the nations of the earth, did we do this. I am firm in the faith that with proper action on the part of Congress, the day of settlement is at hand. Let the people stand fast in the position they have taken, and it must soon come. Would that my voice could reach all loyal men in the land, to tell them to be of good cheer,

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for the day is not distant when our beloved country will be in all its sections, a land of freedom in fact as well as in name; free in speech, free in press, and free in ballot. May God speed the coming of that happy day! Lucius Fairchild Executive Chamber, Madison, Jan. 10th, 1867.

Senate, January 22, 1867 *

The committee on federal relations, to whom was referred J.R. No. 4 S. Proposing the ratification of Article Fourteen (14) as one of the amendments to the Constitution of the United States; and also the message of his excellency the Governor, transmitting a certified copy of said proposed amendment to the constitution, Have had the same under consideration, and a majority of the committee do recommend the adoption of said joint resolution, by the ratification of the said proposed amendment to the constitution of the United States. D. W. C. Wilson, Chairman. — The minority of your committee on federal relations, to whom was referred the resolutions ratifying the constitutional amendments, to the constitution of the United States, submitted to the several states ask leave respectfully to make the following report: The questions to be considered by these amendments are of great importance to the people of this state as well as to those of the whole country, and the minority of your committee believe this is the proper and appropriate time to state briefly and dispassionately the views entertained. The apparent object of the proposed amendments is to declare the Africans lately in servitude in the southern states of this republic, citizens, and to give to the Congress of the United States the power to make them citizens of the several states wherein they reside, and thereby to extend to them the right of suffrage, and, also, to give to Congress the power to legislate for the citizens of the several states. The object accomplished, if the amendments are ratified, will be a surrender of certain rights and powers which the several states of the Union now hold by their sovereign power in trust over the persons and property of their citizens to the federal * Wisconsin Senate Journal 96–105 (1867).

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government, so as to make it the arbiter between the states and the citizens and residents thereof. The first section of the proposed amendment makes the surrender of power, and the fifth section invests Congress with authority to provide “by appropriate legislation” for the powers thus voluntarily surrendered by the states. It is too well understood to require argument or authority to demonstrate that the federal government is a government of delegated power surrendered at the formation of the federal constitution by the several states then existing. The proposed amendments, if ratified, will be a new surrender or delegation of power by the states. The framers of the federal constitution were very careful to guard the rights of the several states, and held in abhorrence everything that looked like consolidation. They reserved to the several states the right of making laws for the people within their borders, for the protection of person, life, liberty and property. The several states were careful to retain the power to regulate and govern their citizens in their relations and intercourse with each other. The state government was held as the home or domestic government to operate upon all persons within the state and its powers were to regulate and control the inhabitants of the states respecting their rights, duties and obligations as citizens and members of society. It was a government of law existing before the constitution, and was retained to shield, protect and regulate the people within its jurisdiction in their intercourse with each other and in their daily avocations and duties of life. The fathers of this republic assumed at the formation of its constitution that the people of the several states then existing, and those to exist in the process of time were and would be competent to establish their own forms of government, conformable to the federal constitution; to regulate their rights, duties and obligations as members of society. ... The federal government was not formed for the purpose of acquiring personal liberty or personal rights, for that the people possessed in their state governments; but it was formed to better protect the state governments, so that the greatest enjoyment of these blessings acquired and possessed could be made more secure and lasting. It was intended by it to secure and protect the people of the several states in their enjoyment of their rights as such citizens or people from wrongs, mo-

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lestation or injury from foreign nations or powers; and also to regulate the intercourse, right and duties of the inhabitants of one state with those of another; to regulate the intercourse of the citizens and people of the several states with those of other states, and with those other governments or foreign powers. There was created by the ratification of the federal constitution two distinct sovereign jurisdictions, each having limited powers—each supreme within a certain sphere, and each, to the other, within another prescribed sphere or limit subordinate. These two prescribed governmental powers, one the state, the other the federal, were so balanced as to act in perfect harmony upon the person or citizen in any district or state of the republic; one acting as the check and balance to the other. The minority of your committee holds that the first section of these proposed amendments contains a surrender to the federal government of a portion of the reserved powers belonging to the states, and is a long step in the direction of consolidation. It makes the federal government, if it desires, “by appropriate legislation,” so to exercise its power, the arbiter between the citizens of the same state, and gives it the power to assume and judge of state law, and of the manner in which the state authority exercises its trust over its citizens. The effect of all this will be to destroy the harmony, so well balanced and regulated between the federal and state governments by the wisdom and patriotism of those great and noble men who formed the federal constitution. Says Thomas Jefferson upon the importance of the state retaining its power over its citizens: “It is of immense consequence that the states retain as complete authority as possible over its own citizens.” Again, when speaking of the efforts of the federal party to consolidate government, he of the Union, that “It can never be harmonious and solid while so respectable a portion of its citizens support principles which go directly to a change of the federal constitution, to sink the state governments, consolidate them into one, and to monarchize that. Our country is too large to have all of its affairs directed by a single government. * * * The true theory of our constitution is surely the wisest and best, that the states are independent as to everything within themselves, and united as to everything respecting foreign nations.” (See 4th vol. Jefferson’s complete works, 200 and 331.) Says Chief Justice Marshall, 4 Wheaton, 316: “The sovereignty of a state extends to everything which exists

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by its own authority, or is introduced by its own permission.” It will be seen by a reference to these authorities what was understood by the framers of the constitution, to be the true and best theory respecting the spheres of state and federal authority. The powers of this federal government, respecting the people of the states, are mostly external and are very 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 and executing of our municipal laws; in the regulating of 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 state. 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 to the federal government the supervision of all the social and domestic relations of the citizens in the state and to subordinate state governments to federal power. Adopt these amendments, and if the criminal stands before our state authorities or courts on trial for his crimes or wrongs committed upon a citizen within the jurisdiction of the state, the powers of our state judiciary will no longer be supreme, but subordinate to federal authority. These amendments will have wrought a complete subversion of the “fundamental principles upon which the Union was founded.” Under the amendments congress will have power to appoint commissioners and provide for courts that may be authorized to say, if the state is depriving its citizens of his rights without due process of law. Will not this be a consolidation of power in the federal government? If this was not the object of this section of amendments, what other purpose or object was sought by it? Our state constitutions provide by article 1st, section 1st, that “all men have certain inherent rights, among these are life, liberty and the pursuit of happiness.” The absolute rights of personal security, personal liberty and the right to acquire and enjoy private property, descended to the people of this government as a part of the common law of England. These immunities had their origin in the forest of Germany, and were brought to England by invaders. They have been firmly established since the Barons of England wrung them from King John, in the

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year 1215. They were part of the Magna Charta, the great charter of England, and form part of the bill of rights in nearly all of the constitutions of the states of this union, as well of the federal constitution. Why, then, is it necessary to engraft into the federal constitution that part of section one of the amendments which says: “Nor shall any state deprive any person of life, liberty or property, without due process of law?” This has no reference to the powers of the general government, but is intended to be construed so as to subordinate the state authority to the federal authority. Under it, the independence and sovereignty of the judicial powers of the state will be destroyed, or subordinated, and those once gone, the state will no longer be sovereign in anything. By it, Congress will have the power to provide for a review of all matters and proceedings, in order to see if the state is depriving “any person of life, liberty or property, without due process of law.” ... It is not necessary for the people of this state to go to the fathers of the constitution for authority on this subject; they can look to the judicial decisions and opinion of their judges of the Supreme court of their state. Judge Smith, in the matter of the petition of Sherman M. Booth: See 3d Wis. R., p. 88. “One great aim of the founders of our government (among others) was to secure beyond contingency personal liberty, and to protect and preserve, as far as practicable, the independence and sovereignty of the respective states (without whose agency such personal liberty could not be protected and secured,) as far as was consistent with practical efficiency of the federal government about to be organized. A mere glance at the history of the time, at the debates in the national convention that framed, and the respective state conventions which adopted the constitution, will suffice to convince us, that the respective states were regarded as essential, if not the sole guardians of personal rights and liberties of the individual citizen.” This same profound judge, in the same opinion, further said: “If the sovereignty of the states is destined to swallow up by the federal government; if consolidation is to supplant federation” he “wished his skirts to be clear, so that posterity might not lay the catastrophe to his charge.” Of the subordination of state sovereignty to federal, he said that it was “repugnant to the organism of our federal system, destructive of the checks and balances

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which the constitution has provided and ought to be firmly repelled by all those, who, standing upon the fundamental law as originally enacted, desire to maintain its principles intact and to prevent the establishment of a federal oligarchy, which would reduce the respective states to the condition of mere municipal corporations.” Judge Smith also said: “Without the states there can be no union; the abrogation of state sovereignty is not a dissolution of the union but an absorption of its elements. He is the true man, the faithful officer, who is ready to assert and guard every jot of power rightfully belonging to each, and to resist the slightest encroachment or assumption of power on the part of either.” Will not the adoption of these amendments be an abrogation of a part of state sovereignty? In them will not the state surrender that portion of its supreme power and sovereignty that now enables it to protect the personal rights and liberties of the individual citizen? Who can calmly consider the first section, so artfully drawn, and say it will not? Where are the “true men”—those great party men that were being organized under the teachings of Sherman M. Booth, and in whose ears the voice of Judge Smith sounded “like a prophet’s word?” Will they now assert and guard every jot of power which now belongs to the state for the protection of its citizens, and resist the encroachments that these amendments will make upon the sovereign power of the state? ... Another strong objection to these amendments is that they are antagonistic to the principles of the republican party as asserted in the Chicago platform in 1860, and if all those who supported the principles of that platform then would adhere to it now, these amendments would never be ratified by the legislature of this State. I refer to the fourth resolution of that platform, which reads as follows: “That the maintenance inviolate of the rights of the states to order and control of its own domestic institutions, according to its own judgment exclusively is essential to that balance of power on which the perfection and endurance of our political fabric depends.” The minority of your committee, standing on this resolution, protest against the adoption of these amendments, believing that this resolution of the great republican party (upon which the murdered Lincoln was first elected to the Presidency) contain great wisdom, and that the proposed amendments are in derogation of its

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true intent and meaning, and their adoption would destroy the “balance of power” between the states and our federal government, so as to endanger “the perfection and endurance of the political fabric.” ... There is another objection which does not appear as a part of the amendments, which may be well to consider. Were the amendments proposed for ratification, as the constitution provides they shall be? They are required by the constitution to be proposed by two thirds of both houses of Congress. If two-­thirds of each house of Congress is intended when used in the constitution, to imply two-­thirds of the members who compose the house, then these amendments have never been properly proposed, unless twenty-­eight can be made to be two-­thirds of seventy-­two. If the constitution intends two-­thirds of the members of the Senate shall make two thirds of the House, it would require that 48 Senators vote for the amendment in order to have them properly proposed. While in truth and in fact only twenty-­eight members voted for them. Are they then properly presented to the states for adoption? Would it show wisdom on the part of the state to adopt them if they are not properly proposed? The minority of your committee is of the opinion that they are not properly presented for adoption, and if they were, their adoption would be dangerous in the extreme. ... If the people desire a return of prosperity and happiness they must let the spirit of hate and prescription be put aside and the spirit of charity take their place—then will the union be stronger than ever—then will peace unite in harmony this distracted country, under one flag, with the old constitution for the rule and guide to the people for all time. Gerrit T. Thorn.*

* [The Wisconsin Senate ratified the amendment on January 23, 1867, on a vote of 22 to 10. See Wisconsin Senate Journal 119 (1867). The Wisconsin House ratified on February 7, 1867, on a vote of 69 to 10. See Wisconsin House Journal 224 (1867). —Ed.]

72 “The Amendment—The Situation,” Crisis (Columbus, OH) February 13, 1867, p. 18†

The constitutional amendment has now received the assent of sixteen States, in the following order: Connecticut, New Hampshire, Tennessee, New Jersey, Oregon, Vermont, Ohio, Missouri, New York, Nevada, Illinois, Minnesota, Michigan, West Virginia, Maine, Kansas. There are seven other States whose ratification is expected at an early day. In several of them the amendment has passed on House already. The seven are: Indiana, Iowa, Rhode Island, Pennsylvania, Wisconsin, California and Massachusetts. This makes twenty-­ three certain for ratification, and all that are expected. If there be thirty-­six States in the Union, which is the great question for doubt and controversy, the completed vote will show 23 for the amendment, 13 against it—that is, two thirds, instead of the three fourths the Constitution requires, to make it a valid part of the Constitution. If there be but twenty-­six States in the Union, as a considerable part of the dominant party maintains, then the amendment will be held to be adopted, whenever the ratification of twenty-­States shall have been received. It is evidence that they who hold this view are making preparations to have that rule adopted by Congress, and put into operation by its authority. Heretofore the law has required that the official notice of the ratification by the Legislature of any State should be transmitted to the Secretary of State; and empowered him, when a sufficient number of States to constitute a legal number had been received by his Department, to issue a notice declaring the fact. Thenceforward the amendment voted for was to be held as part of the Constitution. Pursuing this process, Mr. Seward gave notice that the constitutional amendment abolishing slavery had

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† [That same day, John Bingham declared his belief that “by the recorded legislative act of twenty represented States of this Union [the Fourteenth Amendment] has become a part of the supreme law of the land.” See Cong. Globe, 39th Cong., 2nd Sess., 1211 (Feb. 13, 1867). —Ed.]

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been adopted by three fourths of the State Legislatures, as soon as he received the ratifications of twenty-­seven of the thirty-­six States. But in enumerating the ratifying States, as the law required he should do, he included eight of the Southern State Legislatures; and thus, in behalf of the Executive Department of the Government, officially recognized these eight States as equal members of the Union. There are now pending in Congress bills to transfer this function from the Secretary of State to the officers of the two Houses of Congress—the Secretary of the Senate and the Clerk of the House. The evidences of ratification are to be transmitted to them, and they will be under such instructions as Congress may provide by law. As part of the same course of action, there are before Congress, or under reference to its committees, resolutions and bills, the object of which is to declare, on the part of Congress, that three-­fourths of the votes of States represented in Congress will be sufficient to ratify an amendment to the Constitution. If these measures be adopted, the ratification of twenty States will be accepted by Congress and sustained by its whole power, as having the force to amend the Constitution; in other words, to make a new government for the twenty-­ six States that are in the recognized Union, and for the ten States declared to be out of the Union, as Territories or dependencies. The dilemma of Congress in regard to the amendment is therefore this: If they, by a coup d’etat, declaring the functions of ten of the States extinct, they have first to defeat, perhaps to depose, the President; and then to encounter the Judiciary and the risk of being drawn into the necessity of overthrowing that too. If they yield this point, and concede to the Southern States the right to vote on the amendment in the present instance, it is the right to veto it; and the concession of that right destroys, by inevitable logic, the right to impose any conditions incompatible with their continued existence as States. In respect to the XIII amendment, the final vote was such that it could be declared to be ratified in either form, for it received the votes of three-­fourths of the thirty-­six States, as well as three fourths of the represented States. Hence, no formal protest or declaration was drawn out against the Executive notice, which enumerated the eight Southern States among the voting States. In the present case, that of the proposed amendment XIV, the same convenient facts cannot recur. The South-

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ern States must be excluded, or the amendment will be lost. We believe that the anxiety of a considerable portion of the Republicans to obtain the votes of some Southern States arise quite as much from their desire to escape from this dilemma as from any abstract preference for the great changes the amendment proposes, and the new principles it introduces into Government.—N.Y. Picayune.

73 Massachusetts, Legislative Committee on Federal Relations, Majority and Minority Reports on the Proposed Fourteenth Amendment February 28, 1867*

The Committee on Federal Relations, to whom was referred the Communication of His Excellency the Governor, transmitting a copy of a Resolution of Congress, proposing to the legislatures of the several States a Fourteenth Article to the Constitution of the United States, together with sundry Memorials upon the same subject, submit the following

Report: A change in the fundamental law of a great nation is, under ordinary circumstances, a grave matter. When such a change touches first principles, the ­question claims the most thoughtful consideration. It is not enough for a Massachusetts legislature that other States have ratified a proposed amendment. Massachusetts can afford to stand alone on her convictions, but she cannot afford to “follow the multitude to do evil.” A proper deference to the traditions and character of our people requires that an amendment like that before us should be treated as an original proposition. It would be easy to dispose of this subject by acquiescing in, without careful investigation, and following, the action of a large majority of the loyal States. But,

* H.R. Doc. No. 149, Mass. Gen. Ct. 1–4 (1867). [Also reported (and substantially quoted) in the New York Times, Mar. 2, 1867, 5. —Ed.]

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surely, it need not be argued that the duty of wise legislators and good citizens is to inquire patiently and critically into the interpretations of which the amendment is susceptible, before giving our sanction to its becoming a part of our organic law. It will not do to assume that the tribunals which are finally to pass upon these provisions will view them through our eyes. The recent action of the supreme court of the United States, suggests the propriety of inquiring what constructions are possible. Two questions present themselves at the outset: First. Does it give any additional guarantees to human rights? Second. Does the proposed amendment impair or endanger any rights now recognized by the Constitution? The first section of the article is as follows:

Amendments:— “Article I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. “Article II. A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. “Article V. No person shall be * * * deprived of life, liberty or property without due process of law. “Article VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense. “Article VII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”

“Sect. 1. All persons born or naturalized 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.”

It is difficult to see how these provisions differ from those now existing in the Constitution. The preamble to the Constitution grandly and solemnly declares:— “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

Many of our ablest jurists agree with the opinion of the late Attorney-­General Bates, that all native-­born inhabitants and naturalized aliens, without distinction of color or sex, are citizens of the United States. The Constitution (Article IV., section 2,) declares,— “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”

“Sect. 4. The United States shall guarantee to every state in this Union a republican form of government.”

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Nearly every one of the amendments to the Constitution grew out of a jealousy for the rights of the people, and is in the direction, more or less direct, 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 instrument, could have been put into clearer language; and, upon any fair rule of interpretation, these provisions cover the whole ground of section first of the proposed amendment. To examine the first section critically, “All persons, &c., are citizens of the United States and of the state wherein they reside.” This definition of citizenship of the United States, as we have said, is practically settled quite as authoritatively as an amendment could do; indeed, probably more conclusively; for there is reason to fear that, if this question should come before the present supreme court as a new question under this amendment, there would be danger of an adverse decision. The definition of citizenship “of the state wherein they reside” is of no effect, as none of the provisions of the amendment profess to apply to persons as citizens

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of a State. Further, we are not aware that there has been any decision, or that there is any agreement among legal authorities as to what constitutes citizenship of a State, apart from citizenship of the United States. The remainder of the first section, possible excepting the last clause, is covered in terms by the provisions of the Constitution as it now stands, illustrated, as these express provisions are, by the whole tenor and spirit of the amendments. The last clause, no State shall “deny to any person within its jurisdiction the equal protection of the laws,” though not found in these precise words in the Constitution, is inevitably inferable from its whole scope and true interpretation. The denial by any State to any person within its jurisdiction, of the equal protection of the laws, would be a flagrant perversion of the guarantees of personal rights which we have quoted. If it should be said that such a denial has existed heretofore in spite of these guarantees, we answer that such a denial would be equally possible and probable hereafter, in spite of an indefinite reiteration of these guarantees by new amendments. We are brought to the conclusion, therefore, that this first section is, at best, mere surplusage; and that it is mischievous, inasmuch as it is an admission, either that the same guarantees 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 constitutional right; and no security can be given that similar guarantees will not be disregarded hereafter. Section 2 is as follows:— ... * The basis of apportionment and representation, as provided in this section, is the same as provided in the present Constitution, with the exception of what is known as the “three-­fifths” representation. The qualification for electors for members of Congress is fixed in the following clause of section 2, article 1: “The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.” This recognition of the right of the States to prescribe the qualifications of electors for members of Congress, has come, unfortunately, to be construed as a prohibition of the power of Congress to control this matter. There is nothing in the language of this clause, or elsewhere in the Constitution, which prevents Congress from exercising this control. Indeed, it is * [The text of Section Two appears here. —Ed.]

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a self-­evident proposition, that a representative government which has not the power to prescribe its own constituency, is no government at all. A concession which allows every State to adopt a different rule of qualification makes possible the widest variety of constituencies, for a pure democracy to the narrowest oligarchy, and the result has been just what was to be expected from the theory. Some of the States have excluded an actual majority of their citizens from the suffrage; and yet, up to the commencement of the war, of which this fatal concession was the most potent cause, these same States, with all the most odious characteristics of oligarchies in their constitutions, and the most outrageous oppressions of the proscribed classes in practice, have held the position of States in a union formed to secure the blessings of liberty, and with republican forms of government! The permission to the States to prescribe the qualifications of voters would have been harmless had the baleful element of slavery been early eliminated, as the fathers expected, from our institutions. It would have been entirely competent for Congress, when it was found that this concession was being abused, to have declared that any State whose constitution allowed this disfranchisement of its citizens had not a constitution “republican in form,” and could not be represented in Congress without changes in its organic law and practice, corresponding to the letter and spirit of the Federal Constitution. Most unfortunately, slavery dictated the interpretations of the Constitution, and so indoctrinated public opinion with its pestilent perversions of State rights, as to secure this control over this vital subject; and this control, reinforced by the natural jealousy of the States over what are called their reserved rights, has been allowed to harden into a usage which has come to have the force of organic law. And now this pernicious construction is not only recognized as a fact by this second section, but it is proposed to incorporate it as a rightful power in the organic law, and under circumstances which give to the act characteristics of peculiar danger to the country, heightened by the blackest baseness and ingratitude to the country’s loyal defenders. ... The best defence which the friends of this provision can make is this; that it does not admit the right to disfranchise, but only, if this is done, it imposes a penalty. It is hardly worth while to discuss the difference between these two propositions. It is enough that disfran-

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chisement, to any extent which the controlling majority choose, is possible—more, is recognized as probable and admissible under this amendment. ... This section, then, confessedly permits the disfranchisement of colored citizens, and obviously attaches no penalty adequate to the punishment or the prevention of the crime. ... Behind all this looms the imminent danger that if the amendment should receive the forms of ratification, and the South should conclude to accept it as the best terms they could get, trusting to their traditional skill in putting their own constructions upon it, the supreme court might declare all the Acts of Congress containing additional guarantees null and void; and the amendment, stripped of all its statutory guarantees, would stand with its power to disfranchise colored citizens, and this baleful oligarchy, with its new inspiration of hate, becomes intrenched in our fundamental law. It is a finality so far as our action goes. But whether this amendment was presented by Congress as a finality, or regarded as such by the States which have ratified it, is, after all, immaterial. Its ratification by Massachusetts makes it a finality so far as her action is concerned. That action is final, and places the whole matter beyond our control. Thenceforth it is remitted to the discretion of the rebel States themselves. There will then be two alternatives before them. First, they may conclude not to ratify the amendment, trusting, as they may with entire confidence, to the supreme court to decide that it is null and void on two grounds; either, that it requires the ratification of three-­quarters of all the States including the rebel States, or that Congress, not representing all the States, could not constitutionally propose an amendment; or, secondly, they may conclude to ratify it, relying upon their own skill in evading the disabilities imposed by the third section, or inducing Congress to remove them. If they refuse to ratify, our ratification is simply inoperative. If they ratify, we have placed it in their power to disfranchise all colored citizens, to perpetuate the present reign of terror throughout the South, to banish Northern capital and industry from the soil we have fertilized with our best blood, and to put our only and best friends under the heels of our and their worst enemies. ...

“Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

The power here given to Congress is, of course, limited by the provisions of the article itself; and the adoption of the amendment will not enlarge, nor its rejection curtail, the powers now conferred upon Congress by the Constitution. The limitations and regulations upon the right of suffrage and eligibility to office embodied in the Reconstruction Bill which Congress has passed, apply to all elections preliminary to the adoption of State Constitutions; or the State Constitutions are required to contain these same limitations and regulations, and Congress retains the power of approving or rejecting these Constitutions, before they go into operation. Manifestly, the ratification of this amendment is not necessary to the exercise of this power, by Congress, of plenary control over the organization of State governments in these territories, up to the point of dictating the provisions of the State Constitutions in relation to suffrage. The exercise of this power by Congress is derived from the present Constitution, and is not strengthened by this amendment. By necessary inference, Congress admits its inability to interfere with suffrage in these States after the State governments are organized, and their Constitutions are approved by Congress. If, then, any of these States, after their organization is thus perfected, should amend their Constitutions by disfranchising colored citizens, as they could clearly claim the right to do under the second section of the amendment, Congress, by its own acts, and by force of this amendment which we are asked to ratify, is precluded from interfering. The “appropriate legislation,” authorized by the fifth section, could not reach this vital subject, except by a stretch of construction which is equally admissible under the present Constitution. We have referred to the concession of power to the rebel State to disfranchise colored citizens, as one of the most objectionable features of the amendment. The odious character of this concession is intensified by the consideration that it meets the universal protest of the disfranchised class. We have yet to learn that a single intelligent colored citizen in the country approves the amendment. ... Again, there is no necessity for immediate action, on the ground that early ratification by Massachusetts of 386

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the amendment, as a basis for reconstruction, is important. 1st. If the theory be that ratification by three-­fourths of the loyal State only is necessary, then that is already secured. Twenty of the twenty-­six loyal States have already ratified,—that is, three-­fourths of the whole number; and the ratification or non-­ratification by Massachusetts will have no effect upon the validity of the amendment as a part of the Constitution. It is hardly possible that this theory can be adopted. A proposition to declare the amendment a part of the Constitution, when ratified by three-­fourths of the loyal States, would be simply a declaration of opinion by a majority of Congress. The important question is, whether this theory would be sanctioned by the Supreme Court. It would seem that, if two-­thirds of a Congress representing only loyal States, could constitutionally present an amendment for ratification, it ought to follow that three-­fourths of those same loyal States could constitutionally ratify it. Such seems, however, not to be the logic at Washington. 2d. If the theory above referred to be discarded, then it requires three-­fourths of the whole number of States, including the rebel States, to give validity to the amendment. There being thirty-­six States, twenty-­seven must ratify. Twenty States have already ratified, viz: Maine, New Hampshire, Vermont, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Ohio, Michigan, Indiana, Illinois, Wisconsin, Minnesota, Missouri, Kansas, Oregon, Nevada, Tennessee and West Virginia. Delaware and Kentucky have rejected it. Four have not yet acted, viz.: Massachusetts, Iowa, California, and Maryland. If all of these four States should ratify, the whole number ratifying would be but twenty-­four, and it will require ratification by three at least of the rebel States. Until thus many of the States ratify, no action on the part of Massachusetts can affect the validity of the amendment. It is not possible that these States can take action, even if they were so disposed, within a year. ... Let it be borne in mind that in considering the operation of this amendment, we must throw out all the recent legislation of Congress in the direction of giving the elective franchise to colored citizens. This legislation is entirely independent of this amendment, and if held valid, it will be so held, equally whether the amendment is ratified or rejected. It seems hardly possible to conceive a greater act of

fatuity than this of placing it in the power of rebels to exclude half a million voters from all voice in the reconstruction of those States. We do not speak of it as partisans. Viewed thus is would be simple madness—­ political suicide. But we speak as patriots; and as such we have the right to demand that no plan of reconstruction shall be sanctioned which does not secure the full exercise of the only power which can be expected to found Commonwealths truly loyal to a federal republican government. In reviewing the whole subject the Committee are brought to the conclusion that no exigency exists requiring immediate action upon an amendment open to the grave objections we have presented. They therefore recommend that the subject be referred to the next general court. Edwin L. Barney Francis W. Bird Oliver H. P. Brown Edwin G. Walker

Minority Report The undersigned, a minority of the Committee on Federal Relations, to whom was referred the Communication of His Excellency, the governor of the Commonwealth, transmitting the Amendment of the Constitution of the United States, proposed by the thirty-­ninth Congress, consider it to be their duty to report a Resolve, drawn in proper form, for the ratification of the amendment. . . . Without entering into an argument upon the merits of the amendment, they would express the opinion that its ratification is extremely important in the present condition of our national affairs. As a measure of support to loyal men, and of protection to the property of the country, it is entitled to our cordial approval. As a declaration of the true intent and meaning of American citizenship, it appeals to freemen everywhere. And while it cannot be considered as a finality in the work of reconstructing our federal government, it is an advance in the direction of establishing unrestricted popular rights, which, when completed, will make our Constitution and laws accordant with the highest principles of free civil organization. In order that Massachusetts may hold no equivocal position on the question of ratifying the proposed amendment, it is deemed proper that the following Resolution should also be submitted to the legislature, 387

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as an expression of these sentiments and principles by which this State has been guided in her course upon national affairs. Resolved, That in acting upon the fourteenth article of amendment to the constitution, proposed by the thirty-­ ninth congress, as a measure of reconstruction, Massachusetts denies the right of any republican government to abridge the exercise of the elective franchise, by reason of race or color, or to impose any qualification of voting which is not applicable to all men, and surmountable by all men; that she is opposed to the creation of new states, and to the reorganization of states lately in rebellion, on any other basis than universal suffrage; and that the proposed amendment cannot be considered by her as a finality, but merely as an advancing step in the work of reconstruction, and a part of that admirable system recently adopted by congress, by which the social and civil condition of the revolted states is to be elevated to the standard of true republican government. Geo. B. Loring D. H. Mason B. C. Perkins

74 US Congress, First Reconstruction Act 14 Stat. 428, March 2, 1867*

CHAP. CLIII.—An Act to Provide for the more efficient Government of the Rebel States. Whereas no legal State governments or adequate protection for life and property now exists in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas and Arkansas; and whereas it is necessary that peace and good order should be enforced in said States until loyal and republican State governments can be legally established: Therefore, Be it enacted by the Senate and House of Representatives of the United States of America in Congress as* George P. Sanger, ed., United States Statutes at Large (Boston: Little, Brown, 1868), 14:​428. [When President Johnson vetoed the act on March 2, Congress successfully voted to override the veto the same day. See id. at 429–30. —Ed.]

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sembled, That said rebel States shall be divided into military districts and made subject to the military authority of the United States as hereinafter prescribed, and for that purpose Virginia shall constitute the first district; North Carolina and South Carolina the second district; Georgia, Alabama, and Florida the third district; Mississippi and Arkansas the fourth district; and Louisiana and Texas the fifth district. Sec. 2. And be it further enacted, That it shall be the duty of the President to assign to the command of each of said districts an officer of the army, not below the rank of brigadier-­general, and to detail a sufficient military force to enable such officer to perform his duties and enforce his authority within the district to which he is assigned. Sec. 3. And be it further enacted, That it shall be the duty of each officer assigned aforesaid, to protect all persons in their rights of person and property, to suppress insurrection, disorder, and violence, and to punish, or cause to be punished, all disturbers of the public peace and criminals; and to this end he may allow local civil tribunals to take jurisdiction of and to try offenders, or, when in his judgment it may be necessary for the trial of offenders, he shall have power to organize military commissions or tribunals for that purpose, and all interference under color of State authority with the exercise of military authority under this act, shall be null and void. Sec. 4. And be it further enacted, That all persons put under military arrest by virtue of this act shall be tried without unnecessary delay, and no cruel or unusual punishment shall be inflicted, and no sentence of any military commission or tribunal hereby authorized, affecting the life or liberty of any person, shall be executed until it is approved by the officer in command of the district, and the laws and regulations for the government of the army shall not be affected by this act, except so far as they conflict with its provisions: Provided, That no sentence of death under the provisions of this act shall be carried into effect without the approval of the President. Sec. 5. And be it further enacted, That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State, twenty-­one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of

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such election, except such as may be disfranchised for participation in the rebellion or for felony at common law, and then such constitution shall provide that the elective franchise shall be enjoyed by all such persons as have the qualifications herein stated for electors of delegates, and when such constitution shall be ratified by a majority of the persons voting on the question of ratification who are qualified as electors for delegates, and when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same, and when said State, by a vote of its legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States, proposed by the Thirty-­Ninth Congress, and known as article fourteen, and when said article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom on their taking the oath prescribed by law, and then and thereafter the preceding sections of this act shall be inoperative in said State: Provided, That no person excluded from the privilege of holding office by the proposed amendment to the Constitution of the United States, shall be eligible to election as a member of the convention to frame a constitution for any of said rebel States, nor shall any such person vote for members of such convention. Sec. 6. And be it further enacted, That, until the people of said rebel States shall be by law admitted to representation in the Congress of the United States, any civil governments which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same; and in all elections to any office under such provisional governments all persons shall be entitled to vote, under the provisions of the fifth section of this act; and no person shall be eligible to any office under any such provisional governments who would be disqualified from holding office under the provisions of the third article of said constitutional amendment. Schuyler Colfax Speaker of the House of Representatives. La Fayette S. Foster President of the Senate, pro tempore.

75 US Congress, Tenure in Office Act 14 Stat. 430, March 2, 1867*

CHAP. CLIV.—An Act regulating the Tenure of certain Civil Offices. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate, and every person who shall hereafter be appointed to any such office, and shall become duly qualified to act therein, is, and shall be entitled to hold such office until a successor shall have been in like manner appointed and duly qualified, except as herein otherwise provided: Provided, That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster-­General, and the Attorney General, shall hold their offices respectively for and during the term of the President by whom they may have been appointed and for one month thereafter, subject to removal by and with the advice and consent of the Senate. Sec. 2. And be it further enacted, That when any officer appointed as aforesaid, excepting judges of the United States courts, shall, during a recess of the Senate, be shown, by evidence satisfactory to the President, to be guilty of misconduct in office, or crime, or for any reason shall become incapable or legally disqualified to perform its duties, in such case, and in no other, the President may suspend such officer and designate some suitable person to perform temporarily the duties of such office until the next meeting of the Senate, and until the case shall be acted upon by the Senate, and such person so designated shall take the oaths and give the bonds required by law to be taken and given by the person duly appointed to fill such office; and in such case it shall be the duty of the President, within twenty days after the first day of such next meeting of the Senate, to report to the Senate such suspension, with the evidence and reasons for his action in the case, and the name of

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* Sanger, Statutes at Large, 14:​430. [As they had with the First Reconstruction Act (passed on the same day), Congress passed the Tenure in Office Act over a presidential veto. See id. at 432. —Ed.]

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the person so designated to perform the duties of such office. And if the Senate shall concur in such suspension and advise and consent to the removal of such officer, they shall so certify to the President, who may thereupon remove such officer; and, by and with the advice and consent of the Senate appoint another person to such office. But if the Senate shall refuse to concur in such suspension, such officer so suspended shall forthwith resume the functions of his office, and the powers of the person so performing its duties in his stead shall cease, and the official salary and emoluments of such officer shall, during such suspension, belong to the person so performing the duties thereof, and not to the officer so suspended. . . . Sec. 3. And be it further enacted, That the President shall have power to fill all vacancies which may happen during the recess of the Senate, by reason of death or resignation, by granting commissions which shall expire at the end of their next session thereafter. And if no appointment, by and with the advice and consent of the Senate, shall be made to such office so vacant or temporarily filled as aforesaid during such next session of the Senate, such office shall remain in abeyance, without any salary, fees, or emoluments attached thereto, until the same shall be filled by appointment thereto, by and with the advice and consent of the Senate; and during such time all the powers and duties belonging to such office shall be exercised by such other officer as may by law exercise such powers and duties in case of a vacancy in such office. Sec. 4. And be it further enacted, That nothing in this act contained shall be construed to extend the term of any office the duration of which is limited by law. Sec. 5. And be it further enacted, That if any person shall, contrary to the provisions of this act, accept any appointment to or employment in any office, or shall hold or exercise or attempt to hold or exercise, any such office or employment, he shall be deemed, and is hereby declared to be, guilty of a high misdemeanor, and, upon trial and conviction thereof, he shall be punished therefor by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding five years, or both said punishments, in the discretion of the court. Sec. 6. And be it further enacted, That every removal, appointment, or employment, made, had, or exercised, contrary to the provisions of this act, and the making, signing, sealing, countersigning, or issuing of any commission or letter of authority for or in respect to any such appointment or employment, shall be deemed, and are

hereby declared to be, high misdemeanors and, upon trial and conviction thereof, every person guilty thereof shall be punished by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding five years, or both said punishments, in the discretion of the court. Schuyler Colfax Speaker of the House of Representatives. La Fayette S. Foster President of the Senate, pro tempore.

76 “On the Massachusetts Committee’s Majority Report,” Boston Daily Advertiser March 4, 1867, p. 2

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We suppose that our readers have not yet forgotten the proposition which was brought forward in the summer of 1866, for a special session of the legislature of Massachusetts to ratify the pending amendment to the Constitution of the United States. After some discussion the plan was very wisely laid aside as involving a needless expense in doing that which could as well be done this winter. But neither at that time nor later in the season, when the Republican State convention in its address justly declared the amendment “worthy of ratification by all loyal States,” nor when the republican national committee went so far as to recommend it as a definite and complete proposition of reconstruction, was there any serious question as to the ratification of the amendment by this Commonwealth. We state it as a fact within the knowledge of every intelligent citizen, that when Massachusetts at the election of 1866 gave her support by an overwhelming majority to Congress as against the President, after a long and full discussion of the grounds of controversy, it was the universal understanding that she would ratify the proposition of Congress, if not as the whole, at least as a part of the scheme of reconstruction. And if this was not the universal desire, it is at least true that the opposition to it was apparently confined to the democratic party and to a few extremists whose element is opposition. It is beyond question that the majority of the people of Massachusetts, who elected the legislature, expected and intended in common with

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their friends in the other loyal States and so far as depended upon them, that the new amendment should become a part of the Constitution of the United States. What then are the reasons now presented by the majority of the Committee of Federal Relations for the rejection of the amendment? We say its rejection, because although their recommendation is nominally to refer it to the next General Court, their arguments are in the main directed to show its inexpediency and even injustice. Very properly professing to treat the amendment “as an original proposition,” the majority of the committee in their report take up its sections one by one. To the first section, which defines citizenship, forbids any abridgement of the privileges of citizens and guarantees to all the equal protection of the laws, the object of the committee is in effect that the section would be surplusage. Many of our ablest jurists, we are told, agree with the opinion of a late Attorney-­General, that citizenship is already free from any limitation of color, and thus in the judgement of the committee the definition of citizenship is “settled quite as authoritatively as an amendment could do.” We hardly need to point that the committee here fail to distinguish between what is settled in their opinion, and what is settled as the definite and stable rule of constitutional law. It is but five years since the doctrine of the late Attorney-­General obtained its foothold in the practice of our government, and sound as the construction which leads to it probably is, it cannot be wise to leave the most precious of political rights dependent on the permanence of a general inference,—especially in view of the well grounded fears, manifested by the committee, as to the fate of any such question when put to an issue before the present Supreme Court of the United States. And so of the other rights secured by the first section of the amendment, in the judgement of the committee they are “inevitably inferable” from existing provisions, and yet they have not been so inferred, nor are they now in all cases. To put these guarantees then in clear and unequivocal terms in the text of the Constitution, is simply a prudent precaution, and the section in which this is done, so far from being surplusage, will establish forever that which as a mere matter of construction would probably have been judicially denied ten years ago and which the committee evidently fear would be so now. The committee make a twofold objection to the second section, which provides for the basis of representation, on general grounds and for reasons particular

to Massachusetts. They object in the first place that it allows the disfranchisement of the blacks on condition that representation be proportionately reduced,—that is that by affixing a penalty for disfranchising, it admits the right to disfranchise. We shall not comment on the logic of this objection, which was very fully discussed in the controversies of last year, and was disposed of even to the satisfaction of Mr. Sumner, who raised the same question as to the Blaine amendment, but voted for that now under discussion. But it is important to observe that even if all the objections of the committee to the general policy of this article as a measure of reconstruction were well founded, the events even of the past few days have placed the matter in an entirely new light, for the Southern States are now precluded from continuing the disfranchisement which is apprehended, while the penalty of the amendment will fall as it ought upon those loyal States which still refuse to follow the rule which they are ready to lay down for others.*

77 US Congress, Second Reconstruction Act

15 Stat. 2, March 23, 1867† CHAP. VI.—An Act supplementary to an Act entitled “An Act to provide for the more efficient Government in the Rebel States,” passed March second, eighteen hundred and sixty-­seven, and to facilitate Restoration. Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled, That before the first day of September, eighteen hundred and sixty-­seven, the commanding general in each district defined by an act entitled “An Act to provide

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* [The Massachusetts House of Representatives adopted the minority report and ratified the amendment on March 15, 1867, on a vote of 120 to 20. See Massachusetts House Journal 211 (1867). The Massachusetts Senate ratified the amendment on March 20, 1867, on a vote of 24 to 6. See Massachusetts Senate Journal 401–2 (1867). —Ed.] † George P. Sanger, ed., United States Statutes at Large (Boston: Little, Brown, 1869), 15:2. [Like the First Reconstruction Act, Congress passed this act over President Johnson’s veto. See id. at 4–5. —Ed.]

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for the more efficient government of the rebel States,” passed March second, eighteen hundred and sixty-­ seven, shall cause a registration to be made of the male citizens of the United States, twenty-­one years of age and upwards, resident in each county or parish in the State or States included in his district, which registration shall include only those persons who are qualified to vote for delegates by the act aforesaid, and who shall have taken and subscribed the following oath or affirmation: “I, —— do solemnly swear (or affirm), in the presence of Almighty God, that I am a citizen of the State of ——; that I have resided in said State for —— months next preceding this day, and now reside in the county of —— or the parish of ——, in said State (as the case may be); that I am twenty-­one years old; that I have not been disfranchised for participation in any rebellion or civil war against the United States, nor for felony committed against the laws of any State or of the United States; that I have never been a member of any State legislature, nor held any executive or judicial office in any State and afterwards engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof; that I have never taken an oath as a member of Congress of the United States, 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, and afterwards engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof; that I will faithfully support the Constitution and obey the laws of the United States, and will, to the best of my ability, encourage others so to do, so help me God”; which oath or affirmation may be administered by any registering officer. Sec. 2. And be it further enacted, That after the completion of the registration hereby provided for in any State, at such time and places therein as the commanding general shall appoint and direct, of which at least thirty days public notice shall be given, an election shall be held of delegates to a convention for the purpose of establishing a constitution and civil government for such State loyal to the Union, said convention in each State, except Virginia, to consist of the same number of members as the most numerous branch of the State legislature of such State in the year eighteen hundred and sixty, to be apportioned among the several districts, counties, or parishes of such State by the commanding general, giving to each representation in the ratio of voters registered aforesaid as nearly as may be. The con-

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vention in Virginia shall consist of the same number of members as represented the territory now constituting Virginia in the most numerous branch of the legislature of said State in the year eighteen hundred and sixty, to be apportioned as aforesaid. Sec. 3. And be it further enacted, That at said election the registered voters of each State shall vote for or against a convention to form a constitution therefore under this act. Those voting in favor of such a convention shall have written or printed on the ballots by which they vote for delegates aforesaid, the words “For a convention,” and those voting against such a convention shall have written or printed on such ballots the words “Against a convention.” The persons appointed to superintend said election, and to make return of the votes given thereat, as herein provided, shall count and make return of the votes given for and against a convention. If a majority of the votes given on the question shall be for a convention, then such convention shall be held as hereinafter provided; but if a majority of said votes shall be against a convention, then no such convention shall be held unless a majority of all such registered voters shall have voted on the question of holding such convention. Sec. 4. And be it further enacted, That the commanding general of each district shall appoint as many boards of registration as may be necessary, consisting of three loyal officers or persons, to make and complete the registration, superintend the election, and make return to him of the votes cast at said election; and upon receiving said returns he shall open the same, ascertain the persons elected as delegates, according to the returns of the officers who conducted said election, and make proclamation thereof; and if a majority of the votes given on that question shall be for a convention, the commanding general, within sixty days from the date of election, shall notify the delegates to assemble in convention, at a time and place to be mentioned in the notification, and said convention, when organized, shall proceed to frame a constitution and civil government, according to the provisions of this act, and the act to which it is supplementary; and when the same shall have been so framed, said constitution shall be submitted by the convention for ratification to the persons registered under the provisions of this act at an election to be conducted by the officers or persons appointed or to be appointed by the commanding general, as hereinbefore provided, and to be held after the expiration of thirty days from the date of notice thereof, to be given by said conven-

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tion; and the returns thereof shall be made to the commanding general of the district. Sec. 5. And be it further enacted, That if, according to the returns, the constitution shall be ratified by a majority of the votes of the registered electors qualified as herein specified, cast at said election, at least one half of all the registered voters voting on the question of such ratification, the president of the convention shall transmit a copy of the same, duly certified, to the President of the United States, who shall forthwith transmit the same to Congress, if then in session, and if not in session, then immediately upon its next assembling; and if it shall moreover appear to Congress that the election was one at which all the registered and qualified electors in the State had an opportunity to vote freely and without restraint, fear, or the influence of fraud, and if the Congress shall be satisfied that such constitution meets the approval of a majority of all the qualified electors in the State, and if the said constitution shall be declared by Congress to be in conformity with the provisions of the act to which this is supplementary, and the other provisions of said act shall have been complied with, and the said constitution shall be approved by Congress, the State shall be declared entitled to representation, and senators and representatives shall be admitted therefore as therein provided. Sec. 6. And be it further enacted, That all elections in the States mentioned in the said “Act to provide for the more efficient government of the rebel States,” shall, during the operation of said act, be by ballot; and all officers making the said registration of voters and conducting said elections shall, before entering upon the discharge of their duties, take and subscribe the oath prescribed by the act approved July second, eighteen hundred and sixty-­two, entitled “An act to prescribe an oath of office”: Provided, That if any person shall knowingly and falsely take and subscribe any oath in this act prescribed, such person so offending and being thereof duly convicted shall be subject to the pains, penalties, and disabilities which by law are provided for the punishment of the crime of willful and corrupt perjury. Sec. 7. And be it further enacted, That all expenses incurred by the several commanding generals, or by virtue of any orders issued, or appointments made, by them, under or by virtue of this act, shall be paid out of any moneys in the treasury not otherwise appropriated. Sec. 8. And be it further enacted, That the convention for each State shall prescribe the fees, salary, and compensation to be paid to all delegates and other officers

and agents herein authorized or necessary to carry into effect the purposes of this act not herein otherwise provided for, and shall provide for the levy and collection of such taxes on the property in such State as may be necessary to pay the same. Sec. 9. And be it further enacted, That the word “article,” in the sixth section of the act to which this is supplementary, shall be construed to mean “section.” Schuyler Colfax Speaker of the House of Representatives. B. F. Wade President of the Senate pro tempore.

78 Maryland, Legislature’s Joint Committee Report, Rejection of the Fourteenth Amendment March 19 and 23, 1867*

The Committee have considered the question of ratification thus submitted to the Legislature of Maryland, with all the careful deliberation which so important a measure demands. The State of Maryland has the deepest interest in the speedy and peaceful resolution of friendly relations, and intercourse between all the States and sections of the Union.—Her geographical position, her intimate connexions in trade, commerce and travel, with all portions of the Union, as well as her patriotic desire for the prosperity and happiness of the whole country, would induce her to make every possible sacrifice to promote the great objects of the Federal Constitution. These are declared to be “to establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare and secure the blessings of liberty to ourselves and our prosperity.” We have to confess that we are unable to discover any

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* Maryland Senate Journal, Appendix, 5 (1867). [The report was submitted on March 23, 1867, for consideration by the Senate, which then voted in favor of the resolution to reject the amendment on a vote of 13 to 4. See Maryland Senate Journal 808 (1867). Portions of the majority report were printed in the Baltimore Sun on March 30, 1867, 2. —Ed.]

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possible tendency in the proposed amendment to promote any of these indispensable requisites of good government. The distribution of powers between the Federal and State Governments, when acting in harmonious co-­operation, having proved adequate to every emergency, in peace and in war, during the entire existence of the Constitution down to our late unhappy troubles, and having elevated our country to the highest point of national prosperity and greatness, the wisdom, patriotism and sagacity of the trainers of the Constitution were exhibited by the results of their labors. In the proposition now under consideration, the people of the several States, acting through their several Legislatures, are called upon to strip themselves and their State Governments of powers most vital to their safety and freedom, yea, even to their continued existence in any useful or practical operation; and to bestow those powers upon the Federal Government. ... There are several striking incongruities in this proposition. The first is, that while this demand for additional powers to be conferred upon the Federal Government, is presented in the report, as if made upon the so-­called Confederate States only, and as a punishment to them, it is in fact made upon every State in the Union. If ratified by the requisite number of States, it is to be equally obligatory upon all. Secondly, that while its practical operation would diminish very materially the representation of these States in the House of Representatives, unless they conferred suffrage upon the colored race, Maryland and other States, which stood faithfully by the Government, and met every requisition of the war, are placed in the same category with the so-­called “rebel States,” and subjected to the same punishment. Let us now consider the questions involved in the ratification of the proposed amendment as presented to the Legislature of Maryland. And first, has this amendment been proposed in accordance with the requirements of the Constitution of the United States? This is a question of the utmost gravity and importance. It is not only the right, but the duty of the Legislature to consider it. The Constitution provides that “the Congress, whenever two-­thirds of both houses shall deem it necessary, propose amendments to this Constitution.” The joint resolution says, “Be it resolved by the Senate and House of Representatives of the United States of America, in Congress assembled, (two-­thirds of both houses concurring,) that the following Article

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be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three-­fourths of said Legislatures, shall be valid as part of the Constitution.” The question is, did two-­thirds of both houses of the Congress, within the true intent and meaning of the Constitution, concur in this proposition? The Constitution says, “the House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.” “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof,” &c. The Constitution proceeds upon the idea that the direct interest of each State in the proceedings of Congress, will, at all times, be a sufficient guarantee of its representation therein. There was no thought of compulsory representation, and certainly none of forcible exclusion of the representatives of any State, and least of all upon any such grounds as those contained in the report. A Congress, within the meaning of the Constitution, consists of the Senators and Representatives of all the States composing the United States, duly elected, returned and qualified, who shall present themselves for the discharge of their duties in their respective houses. “A majority of each house shall constitute a quorum to do business,” but the Constitution never contemplated that a majority should assume to themselves the whole power of Congress by the forcible exclusion of the minority, or any portion of it, on any ground whatever not specially provided for in the Constitution. Yet the report of the Reconstruction Committee, and the proceedings of Congress, show that from the two houses of Congress which proposed this amendment, the Senators and Representatives of eleven States were forcibly excluded. Congress defend their action on the plea that the people of those States, by rebellion and civil war, had “forfeited their right of representation in Congress.” Forfeiture is a punishment annexed by law to some illegal act. The committee have failed to point out any clause of the Constitution or in the laws of Congress describing the illegal act to which the alleged forfeiture is annexed as a punishment. The Constitution provides that “each State shall have at least one representative,” and one of the exceptions to the power of amendment is “that no State, without its consent, shall be deprived

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of its equal suffrage in the Senate.” Now how were those rights forfeited by any one of the Confederate States? The Reconstruction Report says: “A State within the Union has obligations to perform as a member of the Union. It must submit to federal laws, and uphold federal authority.” But federal laws do not operate upon a State. They operate upon the individual persons. Every person subject to the jurisdiction of the Constitution of the United States must submit to the federal laws, or bear the penalty of resistance or infraction. But how can a State be punished? Where is the constitutional or legal enactment that for such and such acts of the people of a State, they shall forfeit their State organization, and all their State rights of voting and holding office, and of representation in Congress? The Constitution defines treason and confers on Congress the power to declare its punishment, but provides that no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted. Congress had power to punish treason by imprisonment for life, and forfeiture of estate during the life of the offender; or by imprisonment for a term of years and forfeiture of estate for life and all civil and political privileges. But Congress did not so provide. In 1790 they declared the punishment of treason to be death, and that there should be no forfeiture of estate. 2 Story on Const., 179, says: “The law of Congress punishes treason, on conviction, with death, but declares that no conviction or judgment, for any capital or other offences shall work corruption of blood, or any forfeiture of estate. The history of other countries abundantly proves that one of the strong incentives to prosecute offences, as treason, has been the chance of sharing in the plunder of the victims. Rapacity has been thus stimulated to exert itself in the service of the most corrupt tyranny; and tyranny has been thus furnished with new opportunities of indulging its malignity and revenge; of gratifying its envy of the rich and good; of increasing its means to reward favorites, and secure retainers for the worst deeds.” In 1862 they declared the penalty of treason to be death and freedom to the slaves of the traitor; or imprisonment and fine, and freedom to his slaves. But no provision has been made whereby civil and political rights were to be forfeited; and it is too late to attempt to do so now, even by constitutional amendment. ... We are therefore clearly of the opinion that the amendment in question having been proposed by two thirds of a Congress from which the Senators and Rep-

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resentatives of eleven States of this Union were forcibly and illegally excluded, was not proposed in accordance with the requirements of the Constitution, and that that fact, of itself, presents an insuperable obstacle to the ratification of the amendment by the Legislature of Maryland. But if this fact were otherwise, your Committee are of opinion that the State of Maryland could not voluntarily assent to any of the propositions contained in the proposed amendment. ... Now let us consider the first section of the proposed Article XIV. The first clause of the first section relates to citizenship of the United States, and of the several States. Its object and effect is to give to Congress, instead of the State governments, the right to determine who shall be deemed citizens of a State, and what residence shall be required to constitute that citizenship. The law upon this subject is already well settled: “Every citizen of a State is ipso facto, a citizen of the United States.” 3 Story on the Const. 565; Bawle on the Const. 85, 86. “And a person who is a naturalized citizen of the United States by a like residence in any State of the Union, becomes ipso facto a citizen of that State.” 3 Story, 566. And the Constitution of the United States declares that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” In the judgment of your Committee, it is not safe to confer any additional powers upon Congress touching this subject. The latter clause of the first section declares: “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.” This, and all other provisions of the amendment, must be read in the light of the 5th section, and of the interpretation already given by Congress to the same language in the 13th Amendment already adopted, namely, section 5: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” The clause under consideration, for the protection of life, liberty and property, will be found in the declaration of rights of every State, as a fundamental principle of free government. It is a subject of “internal government,” to regulate which is the sole and exclusive right of every State. The proposition to vest in Congress the power of supervision, interference and control over

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State legislation affecting the lives, liberty and property of its citizens and persons subject to its jurisdiction, is virtually to enable Congress to abolish the State governments. The second section relates to the apportionment of representatives among the several States. This, too, proposes to abridge the heretofore unquestioned rights of the several States, and to upheave the foundations so securely laid by our fathers. The basis of representation fixed by the Constitution is “numbers.” “This scheme,” says Story, “seems to have obtained more general favor than any other in the Convention, because it had a natural, universal connection with the rights and liberties of the whole people.” ... The object of this second section is unmistakable. There are fifteen States of the Union having a large negro population, most of whom have been recently set free from domestic servitude. The object is to require these States to confer upon the negro the right of suffrage, or to deprive them of a large number of their present Constitutional representation. Otherwise, it is said, the Southern States will be great gainers by the rebellion. ... It is undoubtedly true that freeing the slaves enlarged the basis of representation in the former slave States. But it was an incident which it was well known constitutionally attached to the fact of freedom. Leaving those States still in a hopeless minority “in the halls of Congress,” the incident is small compared with the sum total of their losses. ... Section 3 of the proposed amendment describes a class of persons thereby declared ineligible to be a Senator or Representative in Congress, Elector of President and Vice-­President, or to hold any office, civil or military, under the United States, or under any other State. “Every person, 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, who shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof,” belongs to this proscribed class. Two things are inevitably admitted by Congress in proposing this section as an amendment to the Constitution. First, that there was no law in existence, at the time when the act was committed, which prescribed the

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proposed punishment. Second, that Congress has now no rightful power under the Constitution to pass a law to impose such punishment. If there was such a law, or if Congress had the rightful power to pass such law, why ask the ratification of this amendment by three-­fourths of the Legislatures of the several States to make it “valid as a part of the Constitution.” This third section presents a most grave question for the consideration of the Legislature. It is this. Has the Legislature the Constitutional authority to ratify this proscription as a part of the Constitution of the United States? The Legislature of Maryland is vested with all general powers of legislation appropriate to free republican government. But it is limited by the express or implied prohibitions of the Constitution of the State. The 17th Article of the Declaration of Rights declares “that retrospective laws, punishing acts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust and incompatible with liberty; wherefore no ex post facto law ought to be made.” And the Constitution of the United States declares that “no bill of attainder, or ex post facto law, shall be passed.” And “no State shall pass any bill of attainder or ex post facto law.” Thus it is beyond question that neither Congress nor any State can give legal effect to this proposition. The people of each State, separately, and the people of all the States unitedly, have in the most solemn form denied such power to both their Federal and State Governments. The reasons for this denial of such power were fully set forth by the Judges of the Supreme Court of the United States in 1798, in the case of Calder and wife versus Bull and wife, 3 Dallas, 386, Justice Chase said, “The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the powers on which it is founded.” “The Legislature may enjoin, permit, forbid and punish; they may declare new crimes, and establish rules of conduct for all its citizens in future cases.” “The prohibition against their making any ex post facto laws, was introduced for greater caution, and very probably arose from their knowledge that the Parliament of Great Britain claimed and exercised a power to pass such laws under the denomination of bills of attainder, declaring acts to be treason which were not treason when committed; at other times they inflicted punishments where the party was not by law liable to any punishment; and in other cases they inflicted greater punishment than

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the law annexed to the offence. The ground for the exercise of such legislative power was this, that the safety of the kingdom depended on the death or other punishment of the offender; as if traitors when discovered could be so formidable or the government so insecure! With very few exceptions the advocates of such laws were stimulated by ambition or personal resentment and vindictive malice. To prevent such and similar acts of violence and injustice, I believe, the Federal and State Legislatures were prohibited from passing any bill of attainder or ex post facto law.” Justice Iredell said, “The history of every country in Europe will furnish flagrant instances of tyranny exercised under the pretext of penal dispensations. Rival factions in their efforts to crush each other have superseded all the forms and suppressed all the sentiments of justice, while attainders on the principle of retaliation and proscription, have marked all the vicissitudes of party triumph. The temptation to such abuses of power is unfortunately too alluring for human virtue, and therefore the framers of the American Constitution have wisely denied to the respective Legislatures, Federal as well as State, the possession of the power itself. They shall not pass any ex post facto law; or in other words they shall not inflict a punishment for any act which was innocent at the time it was committed, nor increase the degree of punishment previously denounced for any specific offence.” Justice Patterson said, “The historic page abundantly evinces that the power of passing such laws should be withheld from Legislators; as it is a dangerous instrument in the hands of bold, unprincipled, aspiring and party men, and has been too often used to effect the most detestable purposes.” It has been already seen that the reconstruction Committee base their proposed act of proscription upon the same grounds of safety to the State and punishment of treason, which the British Parliament, some centuries ago, alleged in justification of similar acts. Your Committee would not revive the dead issues of the past. But truth and justice require that they shall not evade the responsibilities of the present crisis. This question of proscription involves the consideration of the nature and character of the offence which is thus proposed to be punished. The Reconstruction Committee denounced it as a crime of unmitigated rebellion and treason. In all questions of criminality, the motives and purposes of the act fix its legal and moral character. The same act may be wilful and premeditated murder, or

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manslaughter, or excusable or justifiable homicide, according to the motive which shall appear to have actuated the party. Are not the persons proposed to be proscribed, and all who acted with them in the great war of secession entitled to be judged by the same elementary rule in the administration of justice? The question then is, were the people of the States which attempted secession, honest and sincere in their avowal of their belief in the right of secession and of the reasons for its exercise? By their public documents cotemporaneous with their action, they put themselves on trial before the country and the world for the truth and sincerity of their avowals. “The wager of battle” decided against their right of secession. That question was thus finally settled: “banished to the realms of speculative abstractions.” But in considering the question of damages, is there anything in mitigation? Was their act an unpardonable crime? or was it a pardonable mistake? In addition to their public, solemn, cotemporaneous declarations at the time of secession, and before and during the war, the Reconstruction Committee, after the close of the war, summoned before them Alexander H. Stevens, who had been Vice President of the Confederate States. They examined him on oath and report the following questions and answers: Question. “In what particular did the people believe their constitutional liberties were assailed or endangered from the Union?” Answer. Mainly, I would say, in their internal, social polity, and their apprehension from the general consolidating tendencies of the doctrines and principles of that political party which had recently succeeded in the choice of a President and Vice President of the United States. It was the serious apprehension that if the republican organization, as then constituted, should succeed to power, it would lead ultimately to a virtual subversion of the Constitution of the United States, and all its essential guarantees of public liberty. I think that was the sincere, honest conviction in the minds of our people. Those who opposed secession, did not apprehend that any such results would necessarily follow the election which had taken place; they still thought that all their rights might be maintained in the Union, and under the constitution, especially as there were majorities in both Houses who agreed with them on constitutional questions.” In the further examination of Mr. Stephens as to “the considerations or opinions which led him to identify himself with the rebellion, so far as to accept the office

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of Vice President of the Confederate States,” he said, “I believe thoroughly in the reserved sovereignty of the several States of the Union, under the compact or constitution of 1787,” and proceeded to give his reasons for following the fortunes of his State. In reply to the question, “Have your opinions undergone any change?” &c., Mr. Stephens said, “My convictions on the original abstract question have undergone no change, but I accept the issues of the war and the result as a practical settlement of the question. The sword was appealed to, to decide the question, and by the decision of the sword I am willing to abide.” There are some historical facts connected with “the original abstract question,” which ought to be considered in connection with the question of punishment of those who held the obnoxious opinions. And first, that at the time of the adoption of the Constitution of the United States, the absolute sovereignty of the several States was universally conceded. The constitution was framed by delegates of only twelve of the thirteen States of the confederation. By the terms of the constitution, the ratification of nine States was sufficient for the establishment of the constitution between the States so ratifying the same. Eleven States ratified the constitution, elected a Congress, President and Vice President; and on the 30th of April, 1789, “President Washington was sworn into office, and the Government then went into full operation in all its departments.” North Carolina had refused to ratify the constitution without previous amendments and declaration of rights; and Rhode Island had declined to call a convention to consider the question of ratification. Thus the present Union, under the constitution, consisted originally of eleven States. North Carolina became a member of this Union in November 1789, about seven months after the Government had gone into full operation in all its departments, and Rhode Island in May, 1790, more than a year after the organization of the Government. From the date of the organization of the Government, to the time of their ratifying the constitution, respectively, North Carolina and Rhode Island were considered as foreign nations. This fact is stated in the preface to an edition of the Federalist, published in Washington in 1818, thus, “When the constitution was ratified, Rhode Island and North Carolina, from honest but mistaken convictions, for a moment withheld their assent. But when Congress proceeded solemnly to enact that the manufactures of those States should be considered as foreign, and that the Acts laying a duty on goods

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imported, and on tonnage, should extend to them, they hastened, with a discernment quickened by a sense of interest, and at the same time honorable to their patriotic views, to unite themselves to the confederation.” Political parties divided under the administration of the first Adams, upon the constitutionality of the alien and sedition laws. In 1798, under the lead of Madison and Jefferson, Virginia and Kentucky asserted, in legislative resolves, the doctrine of State sovereignty, which was affirmed again in 1799. In 1800, the Republican party of that day came into power by a large majority, on that issue, with Jefferson as President. In the year 1814, during the war with Great Britain, the doctrine of State Sovereignty was emphatically asserted by the New England States. The Legislature of Massachusetts appointed twelve delegates from that State, “to meet and confer with delegates from the other New England States, or any other, upon the subject of their public grievances and concerns,” &c. Connecticut appointed seven delegates and Rhode Island, four, by their respective Legislatures, who met with the Massachusetts delegates at Hartford, Connecticut, in December, 1814. Three persons from New Hampshire and one from Vermont appeared as delegates chosen by local conventions in those States, and were admitted as members. After a secret session of three weeks, they published a report, from which the following extracts are taken. History of Hartford Convention by the Secretary, 355. “Whenever it shall appear that these causes are radical and permanent, a separation, by equitable arrangement, will be preferable to an alliance by constraint, among nominal friends but real enemies, inflamed by mutual hatred and jealousy, and inviting, by intestine divisions, contempt and aggression from abroad. But a severance of the Union by one or more States, against the will of the rest, and especially in a time of war, can be justified only by absolute necessity.” “The power of compelling the militia and other citizens of the United States, by a forcible draft or conscription, to serve in the regular armies, as proposed in a late official letter of the Secretary of War, is not delegated to Congress by the Constitution, and the exercise of it would be not less dangerous to their liberties than hostile to the sovereignty of the States.” In this whole series of devices and measures for raising men, this Convention discern a total disregard for the Constitution, and a disposition to violate its provisions, demanding from the individual States a firm and decided opposition. An iron despotism can im-

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pose no harder servitude upon the citizen, than to force him from his home and occupation, to wage oppressive wars, undertaken to gratify the pride of passions of this master” History Hartford Convention, 361. “That the Acts of Congress, in violation of the Constitution, are absolutely void, is an undeniable position. It does not, however, consist with respect and forbearance due from a confederate State towards the General Government to fly to open resistance upon every infraction of the Constitution. The mode and energy of the opposition should always conform to the nature of the violation, the intention of its authors, the extent of the injury inflicted, the determination manifested to persist in it, and the danger of delay. But in cases of deliberate, dangerous and palpable infractions of the Constitution, affecting the sovereignty of a State, and liberties of the people, it is not only the right but the duty of such State to interpose its authority for their protection, in the manner best calculated to secure that end. When emergencies occur which are either beyond the reach of the judicial tribunals, or too pressing to admit of the delay incident to their form, States which have no common umpire must be their own judges and execute their own decisions.” In 1825, there was published in Philadelphia a Commentary on the Constitution of the United States, by William Rawle, L. L. D., an eminent lawyer and philosopher of that city. A second edition of the same work appeared in 1829, in which the author said, “The principles laid down in the first remain unaltered; the author has seen no reason for any change of them.” The following extracts are taken from the concluding chapter, “on the permanence of the Union.” “The Union is an association of republics—its preservation is calculated to depend on the preservation of these republics. The people of each pledge themselves to preserve that form of government in all.” * * * * * * “It depends on the State itself to retain or abolish the principle of representation, because it depends upon the State itself, whether it shall continue a member of the Union.” “The States may then wholly withdraw from the Union, but while they continue they must retain the character of representative republics.” * * * * * “The secession, of a State from the Union depends on the will of the people of such State.” * * * “It was known, though it was not avowed, that a State might withdraw itself.”

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About the year 1829, the work from which the above extracts are taken, was adopted as one of the text books on the Constitution of the United States, by the authorities in charge of the U. S. Military Academy at West Point. Your committee have this fact from General Tench Tilghman, of this State, a grandson of the General Tilghman of the Revolution, who was the friend and aid of Washington. General Tench Tilghman is a graduate of West Point Military Academy, and the book from which the foregoing extracts are taken is the identical school book used and studied by General Tilghman whilst a cadet at West Point from 1828 to 1832. In 1855, the eminent and distinguished Senator from Ohio, who is now President of the Senate of the United States, thus spoke in the Senate: “There are some Senators who profess a great regard for the rights of the States. I am one of those who have quite as much regard for the rights of the States as some who make louder professions on the subject than I do. I am one of those who, not only when an election is pending, but at all times, believe in the wisdom, the constitutionality, and the propriety of the Virginia resolutions of 1798 and 1799. I ground myself upon those resolutions, and, standing upon them, I denounce this bill as a violation, not only of the spirit of those resolutions, but as an attempt to trample upon the rights of the States and deprive them of the power to protect their own citizens from aggression and abuse. Do gentlemen suppose that the States, now awakened to a keen sense of their rights and the danger of consolidation, will ever submit to such a bill as this? I tell you nay. * * * * * Who is to be the judge in the last resort of the violation of the Constitution of the United States by the enactment of a law? Who is the final arbiter? The General Government, or the States in their sovereignty? Why, sir, to yield that point is to yield up all the rights of the States to protect their own citizens, and to consolidate this Government into a miserable despotism. I tell you, sir, whatever you may think of it, if this bill pass, collisions will arise between the Federal and State jurisdictions—conflicts more dangerous than all the wordy wars which are got up in Congress—conflicts in which the States will never yield, for the more you undertake to load them with acts like this, the greater will be their resistance. * * * * * * * * *” At the session of the next Congress the same Senator spoke as follows: “But Southern gentlemen stand here and in almost all their speeches speak of the dissolution of the Union as

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an element of every argument, as though it were a peculiar condescension on their part that they permitted the Union to stand at all. If they do not feel interested in upholding this Union, if it really trenches on their rights, if it endangers their institutions to such an extent that they do not feel secure under it, if their interests are violently assailed by means of this Union, I am not one of those who expect that they will continue long under it. I am not of those who would ask them to continue in such a Union. It would be doing violence to the platform of the party to which I belong. We have adopted the old Declaration of Independence as the basis of our political movement, which declares that any people, when the government ceases to protect their rights, when it is so subverted from the true purposes of government as to oppress them; have a right to recur to fundamental principles, and if need be to destroy the government under which they live, and to erect on its ruins another more conducive to their welfare. I hold that they have this right.—I will not blame any people for exercising it whenever they think the contingency has come. You cannot forcibly hold men in this Union for the attempt to do so, it seems to me would subvert the first principles of the government under which we live.” In 1859, a large political meeting of the “Sons of Liberty” in Ohio, adopted the following resolution. “Resolved, That the several States comprising the United States of America are not united on the principle of unlimited submission to their General Government, but that by compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes, delegated to that government certain definite powers, reserving each State to itself the residuary mass of right to their own self-­government, and that whensoever the General Government assumes undelegated powers, its acts are unathorative, void and of no force; and, being void, can derive no validity from mere judicial interpretation; that in this compact each State acceded as a State, and is an integral party; that this Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself since that would have made its discretion and not the Constitution the measure of its powers, but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself as well of infractions as of the mode and measure of redress.” The resolution is an exact copy of the Kentucky reso-

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lution of 1798, drafted by Jefferson, except the words “and being void can derive no validity from mere judicial interpretation,” which were doubtless inserted to meet the decision of the Supreme Court of the United States, in the Dred Scott case. Your committee submit whether in view of the forgoing, and other well known historical reminiscencies, there is not some reasonable ground for believing that the seceding States were honest and sincere in their convictions, although they led them to such disastrous results. At least, it is but just to “let facts be submitted to a candid world.” The 4th section of the proposed amendment declares that the validity of the public debt of the United States authorized by law shall not be questioned. Your Committee are not aware of any necessity for this declaration. The authority of the Government of the United States to create the debt, and the purpose of the Government and people to keep their faith inviolate, cannot be questioned. The public debt cannot be made more secure by Congressional declarations, or Constitutional amendment. In truth, your Committee are of opinion that the agitation of such a question is calculated rather to create apprehensions than to prevent or allay them. The best security in the world for the public debt is the spirit of justice pervading the administration of affairs in all the departments of the Government; a strict regard to the limitations of the Constitution; a due regard to economy in the expenditures of the Government; and a scrupulous performance of every engagement and fulfilment of every pledge. A government, to command public confidence, must win the affections of all of its citizens by just conciliation and by a generous forbearance. Your Committee regret to see coupled with the declaration relating to the validity of the public debt a proposal, by Constitutional amendment, to declare that neither the United States nor any State shall assume or pay any claim for the loss or emancipation of any slave, but that all such claims shall be held illegal and void. Your Committee have already reported resolutions reciting the acts and pledges of the Government upon the subject of slaves taken into the service of the United States or emancipated for the benefit of the Government, during the civil war, and asserting the claim of this State, on behalf of her citizens, upon the Government of the United States, for compensation. Of course this Legislature could not be expected to ratify a Constitutional amendment repudiating that claim. And it is respectfully submitted whether a formal

B. Ratification, doc. 79

proposition, by Constitutional amendment to repudiate the faith of the Government, pledged to a portion of its citizens, is calculated to inspire confidence and a sense of security, in another portion of its citizens, or others, who hold the evidences of its public debt. President Washington, in his inaugural address, at the organization of the Government, adverted to the encouraging circumstances which led him to hope that “the pre-­eminence of free government would be exemplified by all the attributes which can win the affections of its citizens and command the respect of the world.” And he reminded his auditors that “the preservation of the sacred fire of liberty, and the destiny of the Republican model of government, are justly considered as deeply, perhaps as finally, staked on the experiment entrusted to the hands of the American people.” Justice and good faith are indispensable to the success of this experiment. Your Committee recommend the adoption of the accompanying preamble and resolutions. Respectfully submitted, ISAAC D. JONES, Cha’n House Com. A. LEO KNOTT, RICH’D B. CARMICHAEL. ODEN BOWIE, Chair’n Senate Com. GEORGE VICKERS, LEVIN L. WATERS, ALFRED SPATES.

1. Resolved, By the General Assembly of Maryland, that the Legislature of this State, doth hereby refuse its ratification of the said proposed amendment to the Constitution of the United States. 2. Resolved, That the Governor of this State be and he is hereby requested to transmit to the Secretary of State of the United States, a duly certified copy of these resolutions. 3. Resolved, That the Governor be and he is hereby requested to transmit a printed copy of the foregoing Report and Resolutions to the Executive of each of the several States of the Union.

79 Nebraska, Gov. David Butler’s Message to the Legislature, Ratification of the Fourteenth Amendment May 17, June 8 and 15, 1867

PREAMBLE. Whereas, The Governor of Maryland has laid before the Legislature, a communication from the Secretary of State of the United States, containing a proposition to amend the Constitution of the United States, as follows, viz: Be it Resolved, By the Senate and House of Representatives of the United States of America in Congress assembled (two-­thirds of both houses concurring), that the following article be proposed to the Legislatures of the several States as an Amendment to the Constitution of the United States, which, when ratified by three-­ fourths of said Legislatures, shall be valid as a part of the Constitution, namely: ... * And whereas the Legislature of Maryland has duly considered the amendment to the Constitution of the United States therein proposed, therefore, * [The text of the Fourteenth Amendment appears here. —Ed.]

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Governor’s Message, May 17, 1867 † Gentlemen of the Senate and House of Representatives: ... I shall take pleasure in transmitting to you, at an early date, an attested copy of a concurrent resolution of the Senate and House of Representatives in Congress assembled, proposing to the Legislature of the several States an amendment to the Constitution of the United States received at the Department of State June 16th, 1866. The proposed amendment, which if ratified will constitute the fourteenth article of the Constitution, embodies in a few short but comprehensive sentences the † Nebraska Senate Journal 49, 57 (1867). [Nebraska entered the Union as the thirty-­seventh state on March 1, 1867, having satisfied a “fundamental condition” that “there shall be no denial of the elective franchise, or of any other right, to any person, by reason of race or color, excepting Indians not taxed.” See An Act for the Admission of the State of Nebraska into the Union, ch. 36, 14 Stat. 391 (Feb. 9, 1867). On March 1, 1867, President Andrew Johnson declared the state had met the condition and was thereby admitted to the Union. See Andrew Johnson, Presidential Proclamation 164, March 1, 1867, in A Compilation of the Messages and Papers of the Presidents (New York: Bureau of National Literature, 1913), 9:3714–15. —Ed.]

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essence of the lesson taught the American people during the terrible agony of civil war. In extending the right of citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof ” and prohibiting the denial of the equal protection of the laws to any such person, it accepts fully, and forever vindicates by the solemn pledge of a nation the idea that was the corner stone of American independence, but has been for a time rejected by the builders of the national superstructure. In providing that when the elective franchise is denied to any of the male inhabitants of a 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 shall be proportionately reduced, it simply enunciated a proposition that would present itself as an axiom to a mind unprejudiced by long participation in the fruits of injustice. In providing that no person shall hold office under the United States or under any State, who having previously taken an official oath whereby he has sworn to support the Constitution of the United States, shall, in violation of that oath, “have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies, thereof,” it but recognizes the common law definition of the nature and obligation of an oath, and the qualifications incurred by the crime of perjury. By a solemn declaration of the validity of the public debt of the United States, it guarantees the preservation of the national honor, and by prohibiting the assumption or payment of any debt or obligation incurred in aid of insurrection or rebellion against the United States, it merely puts the seal of condemnation upon national suicide. Regarding the proposed amendment simply in the light of an exposition of the convictions of a Congress that represents the loyal people whose unfaltering faith in the great principles of freedom and national integrity brought to a successful termination the great struggle for the Union, it is worthy of our most respectful consideration, and I doubt not that the representatives of a constituency that stood firmly on the side of the Government during the trying contest, will show by their action upon this question, that they are not prepared to surrender the principles for which they fought, the moment the battle has been decided, and the victory won. ... David Butler

House, June 8, 1867 *

H.R. No. 8, Joint Resolution ratifying proposed amendments to the Constitution of the United States. Read third time. The question being “Shall the bill pass?” [Ayes 26, Nays 11] So the bill was passed.

Senate, June 15, 1867 †

H. No. 8, Joint resolution ratifying the proposed amendment to the Constitution of the United States, was read the third time. The President put the question, “Shall the bill pass?” which was decided in the affirmative, as follows: [Ayes 8, Nays 5]

80 Suspension of Secretary of War Edwin Stanton, Official Correspondence, Cincinnati Daily Gazette August 13, 1867, p. 3

The War Department Dismissal of Mr. Stanton

Appointment of General Grant

Manly Protest from the Retiring Secretary Might, Not Right, the President’s Support

Washington, August 12.

The following is a verbatim copy of the correspondence between the President and Secretary of War and General Grant to-­day:

402

* Nebraska House Journal 148–49 (1867). † Nebraska Senate Journal 174 (1867).

B. Ratification, doc. 81

Johnson to Stanton. Executive Mansion Washington, August 12, 1867 Sir: By virtue of the power and authority vested in me, as President, by the Constitution and laws of the United States, you are hereby suspended from your office as Secretary of War, and will cease to exercise any and all functions pertaining to the same. You will at once transfer to Gen. U. S. Grant, who has this day been authorized and empowered to act as Secretary of War, ad interim, all records, books, papers, and other public property now in your custody and charge. Very respectfully yours, Andrew Johnson.

81 Reverdy Johnson, “A Further Consideration of the Dangerous Conditions of the Country” November 15, 1867*

Mr. Stevens, of Pa., the very head and front of the radical portion of the republican party in the House of Representatives, in a recent letter to a German professor, (who, by the by, with wretched taste, says that our fathers failed to approach near “to the true principles of liberty,” and that there is in the Constitution a “great blot” and “heinous crime”—a gross libel upon our most illustrious dead,) maintains that, since what he erroneously says has taken place, (the adoption of the 14th amendment) he has no doubt of the power of Congress “to regulate the elective franchise, so far as it regards the whole nation, in every State in the Union.” The amendment confers no such power. It only provides: 1. That persons born in the United States, or naturalized and subject to its jurisdiction, are citizens thereof, and of the State of their residence. 2. That no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States. 3. That no person shall be deprived of life, liberty, or property without due process of law, or be denied equal protection of the laws. There is nothing in either of these provisions from which the power in question can be implied. Under the Constitution, independent of this supposed amendment, the provisions as to the rights of citizens are the same as those of the amendment. And yet Mr. Stevens himself admits, what no one has until lately denied, that Congress had no authority to interfere with suffrage in the States. How then can the amendment be held to confer that authority? I have said that in relation to this subject the Constitution and the amendment are the same. Are they not? Will Mr. Stevens, or any other man of sense, maintain that under the Constitution, without the amendment, a State could, by law, “abridge the privileges and immunities of citi-

...

Stanton to Johnson War Department. Washington City, August 12, 1867 Sir: Your note of this date has been received, informing me that by virtue of the powers and authorities vested in you as President, by the Constitution and laws of the United States, I am suspended from the office as Secretary of War, and will cease to exercise any and all functions pertaining to the same; and also directing me to at once transfer to Gen. U. S. Grant, who has this day been authorized and empowered to act as Secretary of War, ad interim, all records, books, papers and other public property now in my custody and charge. Under a sense of public duty, I am compelled to deny your right, under the Constitution and laws of the United States, without the advice and consent of the Senate, and without legal cause, to suspend me from office as Secretary of War, or the exercise of any or all functions pertaining to the same, or without such advice and consent to compel me to transfer to any person the records, books, papers, and public property in my custody as Secretary. But inasmuch as the General commanding the armies of the United States has been appointed, ad interim, and has notified me that he has accepted that appointment, I have no alternative but to submit under protest to superior force. Very respectfully yours, E. M. Stanton. Secretary of War

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* Reverdy Johnson, A Further Consideration of the Dangerous Conditions of the Country, the Causes Which Have Led to It, and the Duty of the People (Baltimore: Sun Printing Establishment, 1867), 14.

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zens,” or deprive any person “of life, liberty or property without due process of law.” And these are all that the amendment prohibits. The fact is, that the provisions just referred to are wholly unnecessary. If the amendment had contained but the single clause defining citizenship, the Constitution would have supplied all of the securities enumerated in the second and third clauses. If, therefore, as Mr. Stevens concedes, citizenship does not confer the right to vote, or give to Congress any power to confer it upon the citizen, the amendment gives neither the right nor the power. ... In what I have thus far said of the amendment, I have assumed that it has been constitutionally ratified. But this is certainly not the fact, unless the ten southern States are not States of the Union. In my former pamphlet I quoted a recent decision of Chief Justice Chase, to shew that, in the judgment of the judicial department of the Government, their character as such States was not lost by the rebellion. His language is, that the rebellion did not “effect even for a moment, the separation of North Carolina from the Union.” . . . These States not having in the words of the Chief Justice “even for a moment” lost their character or connection with the Union as States, the amendment in question has not been ratified so as to make it a part of the Constitution.

ment are ex post facto in their nature and operation, and confer upon Congress power to legislate on subjects foreign to the original objects of the federal compact; and, Whereas, One of the objects to be accomplished by said proposed amendment was to enforce negro suffrage and negro political equality in the States; and, Whereas, The adoption of said resolution was a misrepresentation of the public sentiment of the people of Ohio, and contrary to the best interests of the white race, endangering the perpetuity of our free institutions; therefore, Resolved by the General Assembly of the State of Ohio, That the above recited resolution be and the same is rescinded. Resolved, That the President of the United States be respectfully requested to cause to be returned to the Governor of Ohio any and all papers on file in the Executive Department at Washington, certifying the ratification by the General Assembly of Ohio of said proposed constitutional amendment.*

83 Gen. Ulysses Grant Restores Edwin Stanton to the Office of Secretary of War, New York Tribune January 15, 1868, p. 4

82 Ohio, Legislature Rescinds Prior Ratification, Plain Dealer (Cleveland, OH)

Mr. Stanton Resumes His Place as Secretary

Washington, January 14, 1868 This morning Secretary Stanton went to the War Department, took possession, and installed himself as Secretary of War. This occurred about 10 o’clock. General Grant had been there previously, and had delivered the key of the Secretary’s private office to the Adjutant-­ General; after which he retired to his office at the Headquarters of the Army. There was no scene. ... All sorts of rumors are afloat. It is stated that Mr. Johnson notified Gen. Grant that he will not commu-

January 12, 1868, p. 1

The resolution, rescinding and refusing Ohio’s assent to the Constitutional amendment adopted last winter, was passed. It is thought it will pass the Senate to-­day, with an amendment, which the House will concur in. As passed it reads as follows: Whereas, On the 11th of January, 1867, a joint resolution was adopted by the General Assembly of the State of Ohio, ratifying the proposed XIVth amendment to the Constitution of the United States; and, Whereas, The provisions of the said proposed amend-

404

* [The next day, January 13, 1868, the Senate voted in favor of the resolution. See Plain Dealer (Cleveland, OH), Jan. 14, 1868, 1. —Ed.]

B. Ratification, doc. 84

nicate with the Army through Mr. Stanton, but direct through the headquarters of the Army. It is also officially stated that the President is of the opinion that Grant had no right to give up the office to Stanton without first being ordered to do so by him (Johnson). ... Possibly Mr. Johnson is as much surprised at some features of the transaction of the Stanton affair, of the past forty-­eight hours, as anybody; for it appears he had an understanding with Gen. Grant some time ago, which was renewed and its details recapitulated from time to time, and finally repeated on Saturday last, that he (Grant) would either hold on to the office as Secretary of War ad interim until the rights of Stanton could be adjusted in court, in case the latter should demand possession of the Department, or else he would give the President timely notice of his intention to resign as Secretary ad interim, and thus enable Mr. Johnson to appoint some other man to the office, who would refuse to surrender to Stanton until the decision could be had. As it was evident on Saturday last that the Senate would not sustain the suspension of Stanton, the President and Gen. Grant had another interview on the subject, and a full understanding, substantially as above set forth, was the result. It was also agreed that Gen. Grant, in company with Gen. Sherman, should call on the President on Monday (yesterday) to determine finally whether he should resign as Secretary ad interim, or continue in the office and test Stanton’s right, as before stated. Gen. Sherman called on the Executive yesterday, but Gen. Grant did not. ... The first notice the President had of such change of purpose was upon the receipt of this following note from Gen. Grant to-­day at about 11:​30. Hdqts. Army U.S. Jan. 14, 1868 To His Excellency A. Johnson, President of the United States. Sir: I have the honor to inclose herewith a copy of official notice, received by me last evening, of the action of the Senate of the United States in the case of the suspension of the Hon. Edwin M. Stanton, Secretary of War. According to the provisions of Sec 2 of an act regulating the tenure of civil officers, my functions as Secretary of War ad interim ceased from the moment of the receipt of the within notice. I have the honor to be, very respectfully your obedient servant, U.S. Grant.

... It appears that the certified copy of the Senate resolution was served upon both Grant and Stanton last night about 8 o’clock by Col. Forney, Clerk of the Senate, in person. A copy was left at the White-­House about 9 o’clock last night, but the President was engaged in a reception, and he did not see it until about 9 o’clock this morning. What course will be pursued by either the President or Mr. Stanton a few hours will determine. As yet, there is no indication what is the final purpose of Mr. Stanton. The President’s purpose will soon develop itself.

84 President Andrew Johnson Removes Secretary of War Edwin Stanton, Precipitates Impeachment Proceedings, Chicago Republican February 22, 1868, p. 1 Washington

Secretary Stanton Removed

Adjt. Gen. Thomas Appointed Secretary Ad Interim.

Intense Excitement Produced—The Senate Declares the Removal Unlawful Mr. Stanton Still in Possession of the Office—He Refuses to Surrender It.

General Thomas Threatens to Use Military Force to Oust the Secretary

...

Probability that Articles of Impeachment will be Reported and Adopted To-­day.

Washington, Feb. 19. ... 405

At no time since the death of President Lincoln has there been such intense excitement throughout the

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Probability that Articles of Impeachment will be Reported and Adopted To-­day

city as to-­day, caused by the action of President Johnson in removing Secretary Stanton, and ordering Gen. Lorenzo Thomas to assume charge. When the fact became known in the House, Republican members left their seats, gathered in twos and fours in the rear portion of the halls, and talked over the matter. Among the Republicans the feeling was very bitter against the President, and exceedingly strong language was used by those who have heretofore opposed it, in favor of passing immediate articles of impeachment. ...

The Senate Declares the Action of the President Illegal

After several hours in executive session, debating the subject with much spirit, the resolution was adopted by a vote of 25 ayes to 6 nays—a strictly party vote—­ declaring the action of the President unconstitutional and illegal. Copies of this were sent at 10 o’clock to-­ night to the President, Secretary Stanton and General Thomas.

Mr. Stanton Refuses to give up Possession, and Remains in the Department Building All Night

The Reconstruction Committee, to whom was referred the communication from the Secretary of War, enclosing the letter of the President to Mr. Stanton informing him of his removal, and also the resolution of John Covode, impeaching the President, meets to-­morrow at half-­past ten o’clock to take action therein. It is confidently believed that the Committee will report articles of impeachment against Mr. Johnson to-­morrow, and that they will be passed by the House. This is the opinion of a majority of the Committee this evening, including Mr. Bingham.*

85 Iowa, Gov. William M. Stone’s Message to the Legislature, Ratification of the Fourteenth Amendment January 14 and 27, March 9, 1868

Secretary Stanton sent a note to the Senate at 9 o’clock to-­ night, addressed to the Radical senators, asking whether they thought he ought to remain in the War Department building all night, and thus prevent a forced attempt to keep him out to-­morrow morning. He was at once informed that it was the wish of his friends in the Senate for him not to leave the building under any consideration, but to remain there all night. In accordance with this, he has prepared to stay at his post. During the entire day he has kept within the walls of the War building, having his meals sent to him. ...

Governor’s Message, January 14, 1868 † Gentlemen of the Senate and House of Representatives: ... I transmit for your action the joint resolution of Congress, adopted June 16, 1866, proposing to the legislatures of the several States a “Fourteenth Article to the Constitution of the United States.” This proposed amendment embraces considerations of vast importance to the peace of the country; and is designed to secure in a more permanent form the dear-­ bought victories achieved in the mighty conflict carried on by the loyal men of the country for the preservation of the American Union. A large number of the States have already ratified the proposed Article; and the de-

Trouble Anticipated

Trouble is anticipated to-­ morrow, and fears, not groundless, are entertained that there may be even bloodshed. Gen. Logan offered to take 125 men from the Grand Army of the Republic, and go to the War Office, and stand by Mr. Stanton at all hazards. ...

* [On February 24, 1868, the House voted to impeach President Johnson, 124 to 42 (25 not voting). See Cong. Globe, 40th Cong., 2nd Sess., 1402 (1868). Representatives Stevens and Bingham reported the articles to the Senate, id., where, on May 16, President Johnson escaped conviction by a single vote. See New York Times, May 17, 1868, 1. —Ed.] † Iowa House Journal 12, 32 (1868). 406

B. Ratification, doc. 85

cision of the General Assembly of this State is now required, and I recommend that it be promptly and affirmatively given.

Senator Bennett claimed that the position of the chairman of the committee on Federal Relations is correct, viz,: That the question is indivisible. Senator Richards: My friend the Senator from Alamakee (Fellows) has been betrayed into making the motion to consider the sections separately, from the fact that he feels that such would be justice; that it ought to be so. But this question was presented in this way purposely. They have wrapped up some bad sections with some good, and ask us to adopt or reject the whole. They have presented a bitter pill sugarcoated to us and say take it as a whole or not at all. This question has been presented to us in this way designedly, infamously and wickedly in my judgment, and it is only left to us to adopt or reject. Senator Fairall differed with Senator Richards, and was proceeding to defend his own position when Senator Oliver rose to a point of order. The proposition is undivisible and the question before the Senate is “Shall the resolutions be read a third time now.” The point of order was sustained. Senator Fellows explained his position at length. Senator Hollman took the floor and spoke at some length on the merits of the resolution, and upon the relative positions taken by Democratic and Republican parties. He was opposed to the first three sections of the “amendment.” The ruling of the chair was sustained by the Senate, and the resolutions were then read a third time and passed. Ayes 32. Noes 9.§

House, January 27, 1868 *

Mr. McKean asked leave to offer the following resolution, which was granted: Whereas, The Congress of the United States has proposed to the several States the following amendment to the Federal Constitution, viz: ... † Be it Resolved by the General Assembly of the State of Iowa, and the State of Iowa by its legislature hereby ratifies, adopts and assents to said amendment. Mr. McNutt moved that the resolution be adopted, and called for the yeas and nays, which were as follows: [Yeas—68. Nays—12] The resolution was adopted.

Senate, Monday, March 9 ‡ ...

The resolutions relative to the proposed amendment to the Constitution of the United States. Senator Hollman moved to strike out sections 1, 2, and 3, provided it was in order to amend. Senator Oliver thought the only question for the Senate was whether the Senate will approve or disapprove of the amendments proposed—whether it will ratify or reject the amendments. The President said that the different sections might probably be submitted to the Senate separately so as to get the sense of the Senate on each separately, but that it is not competent to amend. Senator Fairall was proceeding to reply to some remarks made by Senator Larabee, when Senator Oliver rose to a point of order. The question was, as decided by the President, whether the resolution should be read a third time. Senator Fairall asked if the decision of the Chair was against entertaining the amendment proposed by Senator Hollman, and was answered in the affirmative. Senator Fairall appealed from the decision of the Chair. * Iowa House Journal 132–33 (1868). † [The text of the Fourteenth Amendment appears here. —Ed.] ‡ Daily State Register (Des Moines, IA), Mar. 10, 1868, 1.

§ [See also Iowa Senate Journal 264–65 (1868). —Ed.] 407

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which is necessary to make it valid, the natural and constitutional right of this state to withdraw its assent is undeniable. With these impressions, and with a solemn appeal to the Searcher of all Hearts for the rectitude of our intentions, and under the conviction that the origin and objects of said proposed amendment were unseemly and unjust, and that the necessary result of its adoption must be the disturbance of the harmony, if not the destruction, of our system of self-­government, and that it is our duty to ourselves and our sister states to expose the same, do, further declare: That it being necessary, by the Constitution that every amendment to the same should be proposed by two-­thirds of both houses of congress, the authors of said proposition, for the purpose of securing the assent of the requisite majority, determined to, and did, exclude from the said two houses eighty representatives from eleven states of the Union, upon the pretence that there were no such states in the Union; but, finding that two-­thirds of the remainder of the said houses could not be brought to assent to the said proposition, they deliberately formed and carried out the design of mutilating the integrity of the United States Senate, and without any pretext or justification, other than the possession of the power, without the right, and in palpable violation of the Constitution, ejected a member of their own body, representing this state, and thus practically denied to New Jersey its Equal suffrage in the Senate, and thereby nominally secured the vote of two-­thirds of the said houses.‡ The object of dismembering the highest representative assembly in the nation and humiliating a State of the Union, faithful at all times to all its obligations, and the object of said amendment, were one:—to place new and unheard of, powers in the hands of a faction, that it might absorb to itself all executive, judicial and legislative power, necessary to secure for itself immunity for the unconstitutional acts it had already committed, and those it has since inflicted on a too patient people. The subsequent, usurpations of these once national assemblies, in passing pretended laws for the establish-

86 New Jersey, Legislature Rescinds Prior Ratification

February 19, 20, and 25; March 5 and 27, 1868* Joint Resolutions, No. IV, February 19–20, 1868 †

Withdrawing the consent of this State to the proposed amendment to the Constitution of the United States, entitled Article XIV, and rescinding the Joint Resolution, approved September Eleventh, Anno Domini Eighteen Hundred and Sixty-­Six, whereby it was resolved that said proposed Amendment was ratified by the Legislature of this state. The legislature of the State of New Jersey having seriously and deliberately considered the present situation of the United States, do declare and make known: That the basis of all government is the consent of the governed, and all constitutions are contracts between the parties bound thereby; that until any proposition to alter the fundamental law, to which all the states have consented, has been ratified by such number of the states as by the Federal Constitution makes it binding upon all, any one that has assented is at liberty to withdraw that assent, and it becomes its duty to do so, when, upon mature consideration, such withdrawal seems to be necessary to the safety and happiness of all; prudence dictates that a consent once given should not be recalled for light and transient causes; but the right is a natural right, the exercise of which is accompanied with no injustice to any of the parties; it has, therefore, been universally recognized as inhering in every party, and has ever been left unimpaired by any positive regulation. The said proposed amendment, not having yet received the assent of the three-­fourths of the states,

* [The Senate adopted the joint resolution on February 19, 1868, as did the House on the following day. See “Handwritten Notes of Joint Resolution No. 1,” State of New Jersey, available on the official website of the New Jersey legislature: https:// www.nj.gov/state/archives/pdf/amendment14withdraw.pdf. See also Daily National Intelligencer (Washington, DC), Mar. 31, 1868, 1. —Ed.] † Acts of the Ninety-­Second Legislature of the State of New Jersey 1225–31 (1868).

‡ [This is a reference to the Senate’s vote to retroactively exclude New Jersey senator John Stockton. See this volume, 1A, docs. 50 and 52. The move allowed the Senate to overcome Johnson’s veto of the Civil Rights Bill. See this volume, 1A, docs. 53 and 54. —Ed.] 408

B. Ratification, doc. 86

ment in ten states of martial law, which is nothing but the will of the military commander, and therefore inconsistent with the very nature of all law, for the purpose of reducing to slavery men of their own race in those states, or compelling them contrary to their own convictions, to exercise the elective franchise in obedience to the dictation of a faction in those assemblies; the attempt to commit to one man, arbitrary and uncontrollable power, which they have found necessary to exercise to force the people of those states, into compliance with their will; the authority given to the Secretary of War to use the name of the President, to countermand the President’s orders and to certify military orders to be by the direction of the President, when they are notoriously known to be contrary to the President’s direction; thus keeping up the forms of the Constitution to which the people are accustomed, but practically deposing the President from his office of Commander-­in-­ Chief, and suppressing one of the great departments of the government, that of the Executive; the attempt to withdraw from the supreme judicial tribunal of the nation, the jurisdiction to examine and decide upon the conformity of their pretended laws to the Constitution, which was the chief function of that august tribunal, as organized by the fathers of the Republic; all are but amplified explanations of the power they hoped to acquire by the adoption of the said amendment. To conceal from the people the immense alterations of the fundamental law, they intended to accomplish by the said amendment, they gilded the same with propositions of justice drawn from the State Constitutions; but like all the essays of unlawful power to commend its designs to popular favor, it is marked by the most absurd and incoherent provisions. It proposes to make it a part of the Constitution of the United States, that naturalized citizens of the United States shall be citizens of the United States; as if that were not so, without such absurd declaration. It lodges with the legislative branch of the government the power of pardon, which properly belongs, by our system, to the Executive. It denounces, and inflicts punishment for past offences, by constitutional provision, and thus would make the whole people of this great nation, in their most solemn and sovereign act, guilty of violating a cardinal principal of American liberty: that no punishment can be inflicted for any offence, unless it is provided by law before the commission of the offence. 409

It usurps the power of punishment, which, in any coherent system of government, belongs to the judiciary, and commits it to the people in their sovereign capacity. It degrades the nation, by proclaiming to the world that no confidence can be placed in its honesty or morality. It appeals to the fears of the public creditors by publishing a libel on the American people, and fixing it forever in the national constitution, as a stigma upon the present generation, that there must be constitutional guards against a repudiation of the public debt; as if it were possible that a people who were so corrupt as to disregard such an obligation would be bound by any contract, constitutional or otherwise. It imposes new prohibitions upon the power of the state to pass laws, and interdicts the execution of such parts of the common law, as the national judiciary may esteem inconsistent with the vague provisions of the said amendment, made vague for the purpose of facilitating encroachments upon the lives, liberties and property of the people. It enlarges the Judicial power of the United States so as to bring every law passed by the state, and every principal of the Common law, relating to life, liberty, or property within the jurisdiction of the federal tribunals, and charges those tribunals with duties, to the due performance of which, they, from their nature and organization, and their distance from the people, are unequal. It makes a new apportionment of representation, in the national councils, for no other reason than thereby to secure to a faction a sufficient number of the votes of a servile and ignorant race, to outweigh the intelligent voices of their own. It sets up a standard of suffrage dependent entirely upon citizenship, majority, inhabitancy and manhood, and any interference whatever by the state, imposing any other reasonable qualifications, as time of inhabitancy, causes a reduction of the state’s representation. But the demand of the supporters of this amendment in this state, that Congress should compel the people of New Jersey to adopt what is called “impartial suffrage,” makes it apparent that this section was intended to transfer to Congress the whole control of the right of suffrage in the state, and to deprive the state of a free representation by destroying the power of regulating suffrage within its own limits, a power which they have never been willing to surrender to the general government, and which was reserved to the states as the fun-

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Veto Message of Governor Marcus L. Ward, February 25, 1868 †

damental principle on which the Constitution itself was constructed, the principle of self-­government. This section, as well as all others of the amendment, is couched in ambiguous, vague and obscure language, the uniform resort of those who seek to encroach upon public liberty; strictly construed it dispenses entirely with a House of Representatives, unless the states shall abrogate every qualification, and especially that of time of inhabitancy, without which the right of suffrage is worthless. This Legislature, feeling conscious of the support of the largest majority of the people that has ever given expression to the public will, declare that the said proposed amendment being designed to confer, or to compel the states to confer the sovereign right of the elective franchise upon a race which has never given the slightest evidence, at any time, or in any quarter of the Globe, of its capacity for self-­government, and erect an impracticable standard of suffrage, which will render the right valueless to any portion of the people, was intended to overthrow the system of self-­government under which the people of the United States have for eighty-­years, enjoyed their liberties, and is unfit from its origin, its object and its matter to be incorporated with the fundamental law of a free people; Therefore, 1. Be it Resolved by the Senate and General Assembly of the State of New Jersey, That the joint resolution approved September eleventh, Anno Domini Eighteen hundred and sixty-­six, relative to amending the constitution of the United States, which is in the following words, to wit: ... * Be and the same is hereby rescinded, and the consent on behalf of the State of New Jersey to ratify the proposed fourteenth amendment to the Constitution of the United States, is hereby withdrawn. 2. And be it resolved, That copies of the foregoing preamble and resolution, certified to by the President of the Senate and Speaker of the General Assembly, be forwarded to the President of the United States, the Secretary of State of the United States, to each of our senators and representatives in congress, and to the governors of the respective states. 3. And be it resolved, That these resolutions shall take effect immediately. * [The text of the Fourteenth Amendment appears here. —Ed.]

A message was received from the Governor, by the hands of his private Secretary, announcing his reasons for vetoing Senate Resolution, No. 1., as follows:

State of New Jersey Executive Department Trenton, Feb’y 25, 1868 To the Honorable Senate of the State of New Jersey: Mr. President:—I herewith beg leave respectfully to return, without my approval, Senate Joint Resolution number one, entitled a “Joint Resolution withdrawing the consent of this State to the proposed Amendment to the Constitution of the United States, entitled ‘Article Fourteen,’ and rescinding the Joint Resolution approved September eleventh, Anno Domini eighteen hundred and sixty-­six, whereby it was resolved that said proposed Amendment was ratified by the Legislature of this State.” ... I cannot approve the Joint Resolution by which it is now attempted to withdraw or rescind the ratification so made, because,— 1. I deem that such a resolution, if finally adopted, would be of no validity or effect. The only authority by virtue of which the Legislature can take legitimate action upon the subject of amendments to the Constitution of the United States is contained in the fifth article of that instrument. By that article, the State action is limited to the two cases therein specifically named. One is the application by the Legislature to Congress to call a convention for proposing amendments, and the other is when amendments are by Congress proposed to the Legislature. In the latter cases, the action of the Legislature can be based only on the proposal then existing and pending before them. When such approval is accepted and approved, the amendment ratified and returned to the General Government by which it was submitted, the transaction is completed, the decision of the State has been rendered, and the power of the Legislature over the subject is spent. No further action can be taken until the subject is again submitted by Congress, with whom the power to make such a submission is exclusively lodged. An omission or failure to ratify by the Legislature of one year, or within any specified time, would not prevent such ratification at a subsequent 410

† New Jersey Senate Journal 249–53 (1868).

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time; all such legislative cognizance of the subject being dependent upon and continuing with the pendency of the proposal itself. But with the acceptance of the proposal, and its official and formal return to the authorities, from whom alone it could come, that cognizance must of necessity end. Any other construction is believed to be without support from the Constitution itself, as well as opposed to the general analogies of law. It must be remembered that while a State has the clear and undoubted right to repeal and rescind its own laws, subject to its contracts, yet that in all its relations to the General Government, its actions are exclusive and final. If a State part with a portion of its soil to the General Government, it cannot recover its title, even under the doctrine of eminent domain. If the Legislature appoint a Senator for the constitutional term, no matter how faithless he may be to the interests of the State, or how wantonly he may disregard the sentiments of her people, the Legislature cannot withdraw the appointment and trust. An approval or ratification of an amendment to the national Constitution by the Legislature of a State cannot be regarded as experimental or conditional, unless declared to be such when made. When solemnly and unqualifiedly done, it is of the nature and effect of a contract, which cannot be rescinded or changed at the mere will of the State by which it was made. ... 2. If any doubt can exist as to the power of the Legislature to withdraw its approval of such amendment before it has been ratified by the Legislatures of three-­fourths of the States, it is nowhere supposed that such approval could be afterwards withdrawn. This ratification, by three fourths of the States, must be deemed already to have been made, unless the Legislature shall assume to decide that when more than one-­fourth of the States have, by rebellion and war, withdrawn from their duties and functions as States, and rendered constitutional amendments essential to the welfare of the nation, such States can by their action, prevent the adoption of those amendments, and thus occasion, indirectly and partially, the results which rebellion and war were waged more openly and thoroughly to produce. Of the States that have maintained their fidelity to the Union, and their constitutional relations to each other and the General Government, more than three-­fourths have ratified the amendment, and I cannot deem it open to doubt that their action is sufficient and conclusive. If open to

doubt it is not to be decided by the Legislatures of the States, and should not be assumed by this Legislature to be within its province to determine. ... Respectfully, Marcus L. Ward.

Legislative Override of Governor’s Veto, March 5, 1868 *

And upon the question, shall the Senate Joint Resolutions pass notwithstanding the objections of the Governor thereto? Under the direction of the President pro tempore, the Secretary called the Senate with the following result: [Ayes 11, Nays 9] So said Joint Resolutions were again passed.†

87 US House, Receipt and Return of New Jersey Withdrawal of Ratification March 30, 1868‡

Mr. HAIGHT presented a joint resolution of the Legislature of the State of New Jersey, “withdrawing the consent of that State to the proposed amendment to the Constitution of the United States, entitled article fourteen, and rescinding the joint resolution approved September 11, A.D. 186[6], whereby it was resolved that said proposed amendment was ratified by the Legislature of the State.” Mr. ELDRIDGE. I call for the reading of this resolution. ... The Clerk resumed the reading, and was again interrupted by Mr. BOUTWELL, who raised the question of order that the paper was not respectful to the House, referring particularly to the last sentence read.

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* New Jersey Senate Journal 356 (1868). † [On March 27, 1868, the New Jersey House joined the Senate in overriding the governor’s veto. See Acts of the Ninety-­ Second Legislature of the State of New Jersey 1231 (1868). —Ed.] ‡ Cong. Globe, 40th Cong., 2nd Sess., 2225 (Mar. 30, 1868).

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Mr. ELDRIDGE. The gentleman has no right to interrupt the reading. The SPEAKER. The Chair rules that the paper must be read and referred without debate. Any question in regard to its reception or its character cannot be settled at this time. The Clerk resumed the reading until interrupted by The SPEAKER, who said: The hour of half-­ past twelve o’clock has now arrived, and the House resolves itself into the Committee of the Whole. ... Mr. WASHBURNE, of Illinois. I desire to move that the rules be suspended for the purpose of directing the return to the member who presented it, of the paper purporting to be a resolution of the Legislature of New Jersey. Mr. HAIGHT. I suppose the Chair has already decided that the resolution is not before the House to be returned. The SPEAKER. The Chair will hear the motion of the gentleman from Illinois [Mr. Washburne] before ruling upon it. Mr. WASHBURNE, of Illinois. I offer the following resolution, and if there is objection to it, I will move to suspend the rules: Resolved, That the resolutions of the Legislature of the State of New Jersey, presented by the gentleman from New Jersey, [Mr. Haight,] purporting to withdraw the assent of said State to the constitutional amendment known as the fourteenth article, be returned by the Speaker of the House to the gentleman who presented it, and that its title only shall be referred to in the Journal of the House, and in the Congressional Globe, and further that this House denies the constitutional right of any State Legislature to withdraw such assent. The SPEAKER. The Chair will rule upon the question of order made by the gentleman from New Jersey, [Mr. Haight.] If the resolution of the gentleman from Illinois [Mr. Washburne] was a simple resolution, the Chair would rule that it was unquestionably not in order. But the gentleman moves to suspend the rules for the purpose of making the order indicated. The rules can be suspended even for the purpose of taking a petition which is before a committee and returning it to the member who presented it, or taking any other paper not directly before the House from the files of the House and referring it to some committee, or sending it to any person named in the order. This is a motion to

suspend the rules for the purpose of making a certain order, which the Chair thinks is in order. ... Mr. WASHBURNE, of Illinois. I have modified my resolution somewhat, and now move to suspend the rules in order to offer the following resolution: Resolved, That the resolution of the Legislature of the State of New Jersey, purporting to withdraw the assent of said State to the constitutional amendment known as the fourteenth amendment, be returned by the Speaker of the House to the gentleman who presented it, for the reason that the same is disrespectful to the House and scandalous in character, and that its title only shall be referred to in the Journal of the House, and in the Congressional Globe. ... The question then recurred on suspending the rules for the purpose of adopting the resolution of Mr. Washburne, of Illinois, on which the yeas and nays had been ordered. The question was taken; and there were—yeas 80, nays 17, not voting 92

88 “Mr. Field’s Argument in the McCardle Case,” Report of Congressional Repeal of Supreme Court’s Jurisdiction, New York Herald March 14, 1868, p. 6

We give on another page the able argument of Mr. David Dudley Field before the Supreme Court on the case of McCardle—an argument well worthy of attentive reading for the light it sheds on the legal character of the reconstruction acts and on the true relations to the federal government of the unrepresented States. McCardle wrote and printed in Mississippi advice to the people not to take part in the formation of the new nigger governments. This was interpreted as obstructing reconstruction and as a violation of the law, and for this McCardle was put on his trial by a military commission. The points now made in the Supreme Court by his counsel are that a citizen of the United States, not in the army 412

B. Ratification, doc. 89

or navy, cannot be subjected to a military trial without direct defiance of the constitution; and that McCardle must be tried in accordance with the rights secured by the constitution, whether Mississippi be recognized as a State or not, inasmuch as he is tried within the limits in which the United States exercises authority, and the constitution is for the United States authorities the supreme law within such limits. Mr. Field sums up the case in these points:— First—That there is no reason for the proposition that Mississippi is not now a State of the American Union. Second—That not only is she a State of the Union, but her people have the rights of citizens of a State. Third—That whether she be or be not a State, has or has not the rights of a State, the people there residing cannot be subjected to military government by the Congress of the United States; and Fourth—That, therefore, the petitioner, McCardle, is entitled to his release from the military commission which presumed to sit in judgment upon him. It will be seen that the whole case turns on the right to exercise an arbitrary authority by military power in the Southern States, which assumed right is the essence of the reconstruction laws. It is, therefore, highly probable that in this case the Supreme Court may declare the main law of the reconstruction scheme a nullity; and this gives it particular interest. Congress on Thursday rushed through a law to prevent a decision on this case by cutting off appeals to the Supreme Court; but aside from the doubt whether or not a law now made could legally arrest a process already initiated under existing acts, it is likely the President’s ten days on the new law may give time for the decision to be rendered. If not, then the country is in the hands of Congress; that Congress is the radical majority, and that radical majority is Old Thad Stevens. Government by the people has its glories!*

89 Arkansas, Gov. Isaac Murphy’s Message to the Legislature, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) April 3, 1868†

Gentlemen of the General Assembly: ... The ratification of the new Constitution and the consequent restoration of the State to its vacant place in the Union, will be the fruition of a long-­deferred hope, and will secure to the State the confidence of other States, also of foreign nations, leading to the introduction of capital and labor and to the development of our rich agricultural lands, the introduction of manufactures, with the various arts connected therewith, and bringing to the light of day our rich mineral deposits hitherto hidden in the earth for the want of the needed capital and energy to bring them from their native beds; and thus be the inception of such a degree of prosperity as the State has never before known and which present conceptions are inadequate to describe. To you, gentlemen of the Senate and House of Representatives, pertains the great privilege of launching the new ship of State, putting on her sails and fitting her out for a successful cruise in company with her sister States, from which she has been so long estranged. Should the work be well and faithfully done, when you return to your several counties the people whom you represent will honor you as worthy and trusty servants of the State, who have stripped themselves of all selfishness and thought only of the interest, welfare, and advancement of the whole people. If the principles of the Constitution, under which you act and by which you must be governed, be fully carried out in legislation and in practice, the interest of a few will no more crush out the energies and liberty of the people, but every human being in the State will feel confident, that his life, liberty, character and property are fully and equally protected. Class rule, class monopoly

* [The Supreme Court postponed its decision in the case for more than a year, handing down their decision on April 12, 1869, in a short opinion dismissing the case for want of jurisdiction. See 74 U.S. (7 Wall.) 506 (1869). —Ed.]

† Arkansas Senate Journal 9 (1868).

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and class oppression will no more be known. All the citizens of the State are free and entitled to seek their own happiness in their own way, so long as they obey the laws and respect the rights of others. Hence each one can, without reference to his past condition, press on in the race of life in the full confidence that he will be protected in all his rights and acquisitions by the whole force of the State, through its laws and their faithful enforcement. If the leading principles of the Constitution be wisely carried out by the legislative department, and energetically and impartially enforced by the judiciary and executive departments, general prosperity, good will and happiness must soon prevail among the people, inasmuch as the Constitution is founded on that noble axiom, announced by the Savior of the world: “whatsoever you would that others should do to you, do you even so to them.” ... ISAAC MURPHY, Governor of Arkansas.*

90 “Impeachment . . . The President Pronounced Not Guilty,” New York Herald May 17, 1868, p. 3

IMPEACHMENT.

Action of the Court on the Charges Against the President. Test Vote on the Eleventh Article.

The President Pronounced Not Guilty. ...

Proceedings of the Court

* [On April 3, 1868, the same day they received the governor’s message, the Arkansas House of Representatives unanimously ratified the amendment, with 56 voting aye and 25 members absent. See Arkansas House Journal 22 (1868). On April 6, 1868, the Senate also voted unanimously to support the amendment. See Arkansas Senate Journal 23 (1868). On June 22, 1868, Congress passed a bill (over Johnson’s veto) readmitting Arkansas that included a “fundamental conditions” provision requiring “that the constitution of Arkansas shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote by the constitution herein recognized, except as a punishment for such crimes as are now felonies at the common law, whereof they shall have been duly convicted.” See Cong. Globe, 40th Cong., 2nd Sess., 2901, 3330 (Johnson’s veto message), 3331 (House overrides Johnson’s veto, 111–31), 3363 (Senate overrides Johnson’s veto, 33–7) (1868). —Ed.]

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Thirty-­Sixth Day. United States Senate Chamber, Washington, May 16, 1868. The Senate met at half past eleven o’clock. The galleries were full, and policemen standing in the aisles. Mr. Trumbull reported back from the Judiciary Committee the bill for the admission of Arkansas, without amendment, which was laid over. ... At twelve o’clock precisely, the Chief Justice, wearing the silk robe of office, entered and took his seat as presiding officer of the Court of Impeachment, and directed the Sergeant-­at-­Arms to make proclamation. The proclamation was made in the usual form. The Secretary then proceeded to read the journal of the last day’s proceedings in the case of the United States against Andrew Johnson, President. When the reading was concluded Senator Edmunds called up the order heretofore submitted in the following words:— Ordered, That the Chief Justice, in directing the Secretary to read the several articles of impeachment, shall direct him to read the eleventh article first, and the question shall be taken on that article, and thereafter on the other ten successively as they stand.

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... The eleventh article was read by the Clerk as follows:— Article 11. That said Andrew Johnson, President of the United States, unmindful of the high duties of his office and of his oath of office, and in disregard of the constitution and laws of the United States, did heretofore, to wit, on the 18th day of August, 1866—at the city of Washington, in the District of Columbia, by public speech, declare and affirm in substance that the Thirty-­ Ninth Congress of the United States was not a Congress of the United States authorized by the constitution to exercise legislative powers under the same, but, on the contrary, was a Congress of only part of the States, thereby denying and intending to deny that the legislation of said Congress was valid and obligatory upon him, and said Andrew Johnson, except insofar as he saw fit to approve the same, and also thereby denying and intending to deny to power of the said Thirty-­Ninth Congress to propose amendments to the constitution of the United States; and in pursuance of said declaration, the said Andrew Johnson, President of the United States, afterward—to wit, on the 21st day of February, 1868— at the city of Washington, in the District of Columbia, did unlawfully and in disregard of the requirements of the constitution, that he should take care that the laws be faithfully executed, attempt to prevent the execution of an act entitled “An act regulating the tenure of certain civil officers,” passed March 2, 1867, by unlawfully devising and contriving and attempting to devise and contrive means by which he should prevent Edwin M. Stanton from forthwith resuming the functions of the office of Secretary for the Department of War, notwithstanding the refusal of the Senate to concur in the suspension theretofore made by said Andrew Johnson of said Edwin M. Stanton from said office of Secretary for the Department of War, and also by further unlawfully devising and contriving and attempting to devise and contrive means then and there to prevent the execution of an act entitled “An act making appropriations for the support of the army for the fiscal year ending June 30, 1868, and for other purposes,” approved March 2, 1867, and also to prevent the execution of an act entitled “An act to provide for the more efficient government of the rebel States,” passed March 2, 1867, whereby the said Andrew Johnson, President of the United States, did then—to wit, on the 21st day of February, 1867, at the city of Washington, commit and was guilty of a high misdemeanor in office.

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... The first name on the roll, that of Senator Anthony being called, that Senator rose in his place, and the Chief Justice, also standing, addressed to him this formula:— “Mr. Senator Anthony: How say you; is the respondent, Andrew Johnson, President of the United States, guilty or not guilty of a high misdemeanor, as charged in the article?” Senator Anthony responded “Guilty,” and so the vote went on until all the Senators had responded. The vote summing up yeas 35, nays 19, ... Senators Fessenden, Fowler, Grimes, Ross, Trumbull and Van Winkle, among the Republican Senators voted “not guilty.” Senator Wade, when his name was called, stood up unhesitatingly and voted “Guilty.” ... The Chief Justice rose and announced the result in these words:—On this article there are thirty-­five Senators who have voted “Guilty” and nineteen Senators who have voted “Not Guilty.” The President is, therefore, acquitted on this article.*

91 1868 Republican National Convention and Party Platform, Chicago May 21, 1868†

The National republican party of the United States, assembled in National Convention, in the city of Chicago, on the 20th day of May, 1868, make the following declaration of principles: * [According to article 1, section 3 of the United States Constitution, removal of the president requires a two-­thirds majority vote by the Senate. The vote on the eleventh article of impeachment thus came one vote short. Though votes were taken on the other articles of impeachment, this was the closest President Johnson came to being removed from office. Had Johnson been convicted, the presidential succession act then in force would have placed Senate president pro tempore Benjamin Wade in the presidency. See, generally, Eric L. McKitrick, Andrew Johnson and Reconstruction (Chicago: University of Chicago Press, 1960), 486–509. —Ed.] † New York Herald, May 22, 1868, 3.

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First—We congratulate the country on the assured success of the reconstruction policy of Congress, as evinced by the adoption, in the majority of the States lately in rebellion, of constitutions securing equal civil and political rights to all, and regard it as the duty of the Government to sustain those constitutions, and to prevent the people of such States from being remitted to a state of anarchy or military rule. Second—The guaranty by Congress of equal suffrage to all loyal men at the South was demanded by every consideration of public safety, of gratitude, and of justice, and must be maintained; while the question of suffrage in all the loyal States properly belongs to the people of those States. ... Seventh—The Government of the United States should be administered with the strictest economy; and the corruptions which have been so shamefully nursed and fostered by Andrew Johnson call loudly for radical reform. Eighth—We profoundly deplore the untimely and tragic death of Abraham Lincoln, and regret the accession of Andrew Johnson to the Presidency, who has acted treacherously to the people who elected him and the cause he was pledged to support; has usurped high legislative and judicial functions; has refused to execute the laws; has used his high office to induce other officers to ignore and violate the laws; has employed his executive powers to render insecure the property, the peace, the liberty, and life of the citizen; has abused the pardoning power; has denounced the National Legislature as unconstitutional; has persistently and corruptly resisted, by every means in his power, every proper attempt at the reconstruction of the States lately in rebellion; has perverted the public patronage into an engine of wholesale corruption; and has been justly impeached for high crimes and misdemeanors, and properly pronounced guilty thereof by the vote of thirty-­five ­senators. ... Tenth—Of all who were faithful in the trials of the late war, there were none entitled to more especial honor than the brave soldiers and seamen who endured the hardships of campaign and cruise, and imperilled their lives in the service of the country. The bounties and pensions provided by law for these brave defenders of the nation, are obligations never to be forgotten. The widows and orphans of the gallant dead are the wards

of the people—a sacred legacy bequeathed to the nation’s protecting care. Eleventh—Foreign immigration, which in the past, has added so much to the wealth, development of resources, and increase of power to this nation—the asylum of the oppressed of all nations—should be fostered and encouraged by a liberal and just policy. Twelfth—This Convention declares its sympathy with all the oppressed people which are struggling for their rights. ... Mr. Carl Schurz—I will now read what I intended to ask the Convention to adopt as independent resolutions. Resolved, That we highly commend the spirit of magnanimity and forgiveness with which men who have served in the rebellion, but now frankly and honestly co-­operate with us in restoring the peace of the country, and reconstructing the Southern State Governments upon the basis of impartial justice and equal rights, are received back into the communion of the loyal people; and we favor the removal of the disqualifications and restrictions imposed upon the late rebels, in the same measure as the spirit of disloyalty will die out, and as may be consistent with the safety of the loyal people. ... Resolved, That we recognize the great principles laid down in the immortal Declaration of Independence as the true foundation of Democratic Government; and we hail with gladness every effort toward making these principles a living reality on every inch of American soil. ... The resolution was then adopted.*

* [Both resolutions were adopted. —Ed.] 416

B. Ratification, doc. 93

ing the Thirteenth and Fourteenth Amendments to the Constitution of the United States be read the first, second, and third times by its title; Which was adopted unanimously. On the Thirteenth Article, the vote was: [Yeas 14, nays 0] So said Thirteenth Article was adopted. The Fourteenth Article was then put upon its passage: Upon which the vote was: [Yeas 10, nays 3] So said Fourteenth Article was adopted. On motion of Mr. Purman, a certified copy of the resolution ratifying the proposed Constitutional Amendments was sent to the Assembly.‡

92 Florida, Gov. Harrison Reed’s Message to the Legislature, Ratification of the Thirteenth and Fourteenth Amendments (Reversing Earlier Rejection) June 9, 1868*

Gentlemen of the Senate and the Assembly You are assembled under the provisions and in obedience to the requisitions of the Constitution of the State, adopted in accordance with the acts of Congress. Until admitted to representation upon the floor of Congress, your acts will be merely provisional. I therefore recommend that no action be taken save that dictated by the acts of Congress as conditions precedent to admission, to wit: The passage of the proposed amendment to the Constitution, known as the Fourteenth Article, and the election of the United States Senators—unless it be to ratify the Thirteenth Article, already adopted, your immediate assent to which I advise. After we shall have been recognized by Congress in the admission of our Representatives and Senators, I shall communicate more at length upon the general interests of the State. Harrison Reed

93 US Congress, An Act to Admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, to Representation in Congress 15 Stat. 73, June 25, 1868§

Mr. Alden offered the following: The people of the State of Florida represented in the Senate and Assembly do enact, That the following proposed amendments to the Constitution of the United States, known as Article XIII and XIV, respectively, be and the same are hereby adopted: ... † Mr. Alden offered the following resolution: Resolved, That, two-­thirds of the Senate concurring, the rule established by section 15 of Article IV of the Constitution be suspended, and the resolution adopt-

Whereas the people of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida have, in pursuance of the provisions of an act entitled “An act for the more efficient government of the rebel States,” passed March second, eighteen hundred and sixty-­seven, and the acts supplementary thereto, framed constitutions of State government which are republican, and have adopted said constitutions by large majorities of the votes cast at the elections held for ratification or rejection of the same: Therefore, Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That each of the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, shall be entitled and admitted to representation in Congress as a State of the Union when the legislature

* Florida Senate Journal 7 (1868). † [The texts of the Thirteenth and Fourteenth Amendments appear here. —Ed.]

‡ [The Florida House ratified both amendments that same day. See Florida House Journal 9 (1868). —Ed.] § Sanger, Statutes at Large, 15:​73–74. 417

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of such State shall have duly ratified the amendment to the Constitution of the United States proposed by the Thirty-­Ninth Congress, and known as article fourteen, upon the following conditions: That the constitutions of neither of said States shall ever be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote in said State, who are entitled to vote by the constitution thereof herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all inhabitants of said State:*

in Congress in the place of such Senator so going out of office.” There are two vacancies to be filled by this Legislature. One of the terms to be thus filled will expire on the 4th of March, 1873. If it should be the pleasure of the General Assembly, I propose to address the body on Saturday next, the 4th day of July. During your session, gentlemen, it will afford me pleasure to communicate to you any information within the scope of my power, and to make such suggestions from time to time as may seem to be expedient and proper. Very respectfully, W. W. HOLDEN.

The message was read and ordered to be sent to the Senate. Mr. Sinclair introduced a resolution providing for the appointment of a Joint Committee to report immediately, by bill or otherwise, such action as might be necessary to enable the General Assembly to adopt at once the fourteenth article of the Constitution of the United States. On motion of Mr. Seymour, the resolution was laid on the table. Mr. Seymour introduced the following resolution, ratifying the fourteenth article of the Constitution of the United States, the article known as the Howard Amendment: Whereas, The General Assembly of North Carolina has received notification of the passage by both Houses of the 39th Congress of the United States at its first session of the following proposition to amend the Constitution of the United States by a Constitutional majority of two-­thirds thereof in words, viz:

94 North Carolina, Gov. W. W. Holden’s Message to the Legislature, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) July 2, 1868

House, July 2, 1868 †

Gentlemen of the Senate and House of Representatives: Allow me to congratulate you on the auspicious circumstances under which you have assembled. Our heartfelt gratitude is due to Almighty God for the suppression of the Rebellion, the preservation of the Union, the just and liberal principles on which it has been reconstructed, and the assurance that we have of future peace and tranquility. The first business to be performed by the Legislature will be the ratification of the amendment to the Constitution of the United States, known as the 14th Article, proposed by the 39th Congress. I respectfully recommend the immediate ratification of this Article. By an Act of Congress, approved July 25th, 1866, it is provided that “the Legislature of each State which shall be chosen next preceding the expiration of the time for which any Senator was elected to represent said State in Congress, shall on the second Tuesday after the meeting and organization thereof proceed to elect a Senator * [The same conditions had been imposed for the readmission of Arkansas. See this section, doc. 89, p. 414, note. —Ed.] † North Carolina House Journal 11–15 (1868).

Joint Resolution Proposing an Amendment to the Constitution of the United States. Be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled two-­thirds of both houses concurring, That the following article be proposed to the Legislatures of the several States as an Amendment to the Constitution of the United States, which, when ratified by three-­fourths of said Legislatures, shall be valid as a part of the Constitution, namely: ... ‡

418

‡ [The text of the Fourteenth Amendment appears here. —Ed.]

B. Ratification, doc. 95

Therefore Resolved, That the said proposed Amendment to the Constitution be and the same is hereby ratified by the General Assembly of the State of North Carolina. Resolved further, That certified copies of the foregoing preamble and resolutions be forwarded by the Governor to the President of the United States, to the Presiding Officer of the United States Senate and the Speaker of the United States House of Representatives. The resolution was read. Mr. Seymour moved that the resolution be adopted and sent to the Senate for concurrence. ... Mr. Seymour called for the yeas and nays. The House agreeing, the Clerk proceeded to call the roll. The vote was decided in the affirmative: Yeas—82. Nays—19.

95 South Carolina, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) July 7 and 9, 1868

House, July 7, 1868 ‡

The SPEAKER laid before the House the following preamble and joint resolution, which had been adopted by the Senate, ratifying the Constitutional Amendment:

Joint Resolution Ratifying the Fourteenth Amendment to the Constitution of the United States. Whereas both Houses of the Thirty-­ ninth Congress of the United States, at its first session, by a constitutional majority of two-­thirds thereof, made the following proposition to amend the Constitution of the United States, in the following words, to wit:

Senate, July 2, 1868 *

Received a message from the House of Representatives transmitting the following joint resolution asking the concurrence of the Senate: A joint resolution ratifying the proposed amendment of the Constitution of the United States styled “Article 14th.” Whereas, The General Assembly of North Carolina has received notification of the passage by both Houses of the 39th Congress of the United States at its first session of the following proposition to amend the Constitution of the United States by a Constitutional majority of two-­thirds thereof in words, viz: ... † Mr. Rich moved that the Senate concur, and demanded the yeas and nays. ... The resolutions were adopted by the following vote: Yeas—34. Nays—2.

* North Carolina Senate Journal 13–15 (1868). † [The text of the Joint Resolution, including the Fourteenth Amendment, appears here. —Ed.]

Joint Resolution Proposing an Amendment to the Constitution of the United States. Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, two-­thirds of both houses concurring, That the following article be proposed to the Legislatures of the several States as an Amendment to the Constitution of the United States, which, when ratified by three-­ fourths of said Legislatures, shall be valid as a part of the Constitution, namely: ... § Therefore, resolved, that the said proposed amendment to the Constitution be, and the same is hereby, ratified by the General Assembly of the State of South Carolina. Resolved, that certified copies of the foregoing preamble and resolutions be forwarded by the Governor to the President of the United States, to the presiding officer of the United States Senate, and the Speaker of the United States House of Representatives.

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‡ South Carolina House Journal, Special Session 46 (1868). § [The text of the Fourteenth Amendment appears here. —Ed.]

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On motion of Mr. JENKS, the consideration of the joint resolution was made the Special Order for to-­ morrow.

House, July 9, 1868 *

At the hour of 12:​30 P.M. Mr. Tomlinson moved that the House proceed to vote for the ratification of the Constitutional Amendment, known as Article XIV. Upon which the previous question was called and sustained, and on the main question, the yeas and nays were ordered. ... The vote was then taken, with the following result: Yeas, 108; nays, 12. ... The SPEAKER proclaimed the ratification of the Constitutional Amendment (Article XIV) of the Constitution of the United States, and the joint resolution was ordered to be returned to the Senate.†

97 “Civil Law Restored in Louisiana; Ratification of the 14th Article of Amendment,” Boston Daily Journal July 15, 1868, p. 2

New York, July 14. After his inauguration yesterday, Gov. Warmouth of Louisiana sent a communication to Gen. Buchanan officially notifying the latter of the ratification of the Fourteenth Amendment and of the inauguration of Gov. Warmouth. On receipt of this communication, Gen. Buchanan issued an order of which the following is the substance:— The Commanding General having been officially notified of the ratification of the 14th article of amendments of the Constitution of the United States by the Legislature of Louisiana on the 9th inst., it becomes his duty under the act of Congress which became a law June 25, 1868, and the order of the General of the army to announce to the people of the State and to the troops under his command that the provisions of the Reconstruction acts of congress cease to operate in Louisiana, and from this date military authority will no longer be exercised under the reconstruction acts in said State, and all other officers commanding posts or detachments are forbidden to interfere in civil affairs, unless upon a proper application of the civil authority to preserve the peace, or under instructions duly received from the commanding General of the District. Military law no longer exists and civil law is the supreme order of the State. All civil officers acting under military appointment will transfer their offices and everything pertaining thereto to their successors, who have been duly elected, and who are qualified under the laws of the State. The order concludes with congratulations to the people of Louisiana upon the restoration of the State to the Union and expresses good wishes for the future.

96 Alabama, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection), New Orleans Times July 14, 1868, p. 1‡

Montgomery, July 13.—Another of the congressional military governments was set on foot to-­day. Governor Smith and Lieut. Gov. Applegate were sworn in as provisional officers for the State of Alabama. The Senate met at 12 m. and elected officers. The 14th amendment was ratified and the Senate adjourned until to-­morrow. In the House, officers were elected and the 14th amendment ratified. About 5 o’clock, in pursuance of orders from Gen. * South Carolina House Journal, Special Session 50 (1868). † [On July 7, 1868, the South Carolina Senate ratified the amendment on a vote of 23 to 5. See South Carolina Senate Journal, Special Session 10–12 (1868). —Ed.] ‡ [See also Alabama Senate Journal 9–10 (1868), recording the ratification of the Fourteenth Amendment by the House and Senate on July 13. —Ed.]

Shepperd (the same who rebuked private soldiers for groaning for Grant) two pieces of artillery were brought to the Capitol Hill and salutes fired in honor of the ratification of the 14th article.

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B. Ratification, doc. 98

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. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and 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 payment 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, obligations, and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. SCHUYLER COLFAX , Speaker of the House of Representatives. LA FAYETTE S. FOSTER , President of the Senate pro tempore. Attest: Edwd. McPherson, Clerk of the House of Representatives. J.W. Forney, Secretary of the Senate.

98 Secretary of State William Seward, Provisional Proclamation of Ratification of the Fourteenth Amendment 15 Stat. 706, July 20, 1868*

To all whom these presents may come, greeting: Whereas the Congress of the United States, on or about the sixteenth of June, in the year one thousand eight hundred and sixty-­six, passed a resolution which is in the words and figures following, to wit:—

Joint Resolution Proposing an Amendment to the Constitution of the United States. Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring), That the following article be proposed to the legislatures of the several States as an amendment to the Constitution of the United States, which when ratified by three fourths of said legislatures, shall be valid as part of the Constitution, namely:—

Article XIV Section 1. All persons born or naturalized 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, excluding 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 Congress, the executive and judicial officers of a state, or the members of the legislature * Sanger, Statutes at Large, 15:​706 (Appendix, Proclamations and Executive Orders, No. 11).

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And whereas by the second section of the act of Congress, approved the twentieth of April, one thousand eight hundred and eighteen, entitled “An act to provide for the publication of the laws of the United States, and for other purposes,” it is made the duty of the Secretary of State forthwith to cause any amendment to the Constitution of the United States, which has been adopted

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according to the provisions of the said Constitution, to be published in the newspapers authorized to promulgate the laws, with his certificate specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States; And whereas neither the act just quoted from, nor any other law, expressly or by conclusive implication, authorizes the Secretary of State to determine and decide doubtful questions as to the authenticity of the organization of State legislatures, or as to the power of any State legislature to recall a previous act or resolution of ratification of any amendment proposed to the Constitution; And whereas it appears from official documents on file in this Department that the amendment to the Constitution of the United States, proposed as aforesaid, has been ratified by the legislatures of the States of Connecticut, New Hampshire, Tennessee, New Jersey, Oregon, Vermont, New York, Ohio, Illinois, West Virginia, Kansas, Maine, Nevada, Missouri, Indiana, Minnesota, Rhode Island, Wisconsin, Pennsylvania, Michigan, Massachusetts, Nebraska, and Iowa; And whereas it further appears from documents on file in this Department that the amendment to the Constitution of the United States, proposed as aforesaid, has also been ratified by newly constituted and newly established bodies avowing themselves to be and acting as the legislatures, respectively, of the States of Arkansas, Florida, North Carolina, Louisiana, South Carolina, and Alabama; And whereas it further appears from official documents on file in this Department that the legislatures of two of the States first above enumerated, to wit, Ohio and New Jersey, have since passed resolutions respectively withdrawing the consent of each of said States to the aforesaid amendment; and whereas it is deemed a matter of doubt and uncertainty whether such resolutions are not irregular, invalid, and therefore ineffectual for withdrawing the consent of the said two States, or of either of them, to the aforesaid amendment; And whereas the whole number of States in the United States is thirty-­seven, to wit New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, Vermont, Kentucky, Tennessee, Ohio, Louisiana, Indiana, Mississippi, Illinois, Alabama, Maine, Missouri, Arkansas, Michigan, Florida, Texas, Iowa, Wisconsin, Minne-

sota, California, Oregon, Kansas, West Virginia, Nevada, and Nebraska, And whereas the twenty-­three States first hereinbefore named, whose legislatures have ratified the said proposed amendment, and the six States next thereafter named, as having ratified the said proposed amendment by newly constituted and established legislative bodies, together constitute three fourths of the whole number of States in the United States: Now, therefore, be it known that I, William H. Seward, Secretary of State of the United States, by virtue and in pursuance of the second section of amendment to the act of Congress, approved the twentieth of April, eighteen hundred and eighteen, hereinbefore cited, do hereby certify that if the resolutions of the legislatures of Ohio and New Jersey ratifying the aforesaid amendment are to be deemed as remaining of full force and effect, notwithstanding the subsequent resolutions of the legislatures of those States, which purport to withdraw the consent of said States from such ratification, then the aforesaid amendment 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. In testimony whereof, I have hereunto set my hand, and caused the seal of the Department of State to be affixed. Done at the city of Washington, this twentieth day of July, in the year of our Lord one thousand eight hundred and sixty-­eight, and of the Independence of the United States of America the ninety-­third. William H. Seward, Secretary of State

99 US Congress, Senate and House Resolutions Declaring the Ratification of the Fourteenth Amendment July 21, 1868

Senate, July 21, 1868 * Mr. SHERMAN. I move that the Senate proceed to consider a resolution which I think will take but a moment— 422

* Cong. Globe, 40th Cong., 2nd Sess., 4266 (July 21, 1868).

B. Ratification, doc. 99

Senate resolution No. 166—declaring the ratification of the fourteenth article of amendment of the Constitution of the United States. It is lying upon the table. Mr. MORTON. I hope the Senator from Ohio will waive that for a moment to allow me to call up the bridge bill. Mr. SHERMAN. This resolution ought to be considered now. It will take no time, I think. The PRESIDENT, pro tempore. Is there any objection to taking up the resolution mentioned by the Senator from Ohio? Mr. TRUMBULL. I desire to offer a resolution, if it is in order. Mr. SHERMAN. Let this be taken up first. Mr. TRUMBULL. I desire to offer a resolution at some time before the morning hour is over. I am not particular about it. Mr. SHERMAN. This will take but a moment. The PRESIDENT, pro tempore. If there be no objection, the resolution will be considered as before the Senate. Mr. SHERMAN. I will change the form of the resolution, and make it a concurrent resolution. The Chief Clerk read the resolution, as follows:

There was no objection. The Clerk read the concurrent resolution, as follows:

In Senate of the United States, July 21, 1868 Whereas the Legislatures of the States of Connecticut, Tennessee, New Jersey, Oregon, Vermont, West Virginia, Kansas, Missouri, Indiana, Ohio, Illinois, Minnesota, New York, Wisconsin, Pennsylvania, Rhode Island, Michigan, Nevada, New Hampshire, Massachusetts, Nebraska, Maine, Iowa, Arkansas, Florida, North Carolina, and Louisiana, being three fourths and more of the several States of the Union, have ratified the fourteenth article of amendment to the Constitution of the United States duly proposed by two thirds of each House of the Thirty-­Ninth Congress; Therefore, Resolved by the Senate, (the House of Representatives concurring,) That said fourteenth article is hereby declared to be a part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State. Attest: GEO. C. GORHAM, Secretary.

Whereas the Legislatures of the States of Connecticut, Tennessee, New Jersey, Oregon, Vermont, West Virginia, Kansas, Missouri, Indiana, Ohio, Illinois, Minnesota, New York, Wisconsin, Pennsylvania, Rhode Island, Michigan, Nevada, New Hampshire, Massachusetts, Nebraska, Maine, Iowa, Arkansas, Florida, North Carolina, Alabama, South Carolina, and Louisiana, being three fourths and more of the several States of the Union, have ratified the fourteenth article of amendment to the Constitution of the United States duly proposed by two thirds of each House of the Thirty-­Ninth Congress: Therefore, Be it resolved by the Senate, (the House of Representatives concurring,) That said fourteenth article is hereby declared to be a part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State. The resolution was adopted.

House, July 21, 1868 *

Mr. BOUT WELL. I move to take up the concurrent resolution just received from the Senate. * Cong. Globe, 40th Cong., 2nd Sess., 4295 (July 21, 1868).

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Mr. BOUT WELL. I move that it be referred to the Committee on Reconstruction, and on that I demand the previous question. Mr. ELDRIDGE. It is an important question, and should go to the Committee on the Judiciary. Mr. WASHBURNE, of Illinois. We will pass it now if the gentleman from Massachusetts will give way. Mr. BOUT WELL. I withdraw the motion to refer, and move that the resolution be concurred in; and on that motion I demand the pervious question. Mr. SCOFIELD. Is there any information in the possession of the House that Georgia has ratified the fourteenth article? Mr. SPEAKER. The Chair has a dispatch. Mr. WASHBURNE, of Illinois. Let it be read. Mr. BROOKS. I object unless we have read the withdrawal by Ohio and New Jersey of their assent to that amendment. Mr. WASHBURNE, of Illinois. Let the gentleman from Massachusetts read the dispatch as part of his speech. Mr. ELDRIDGE. Suppose the gentleman from Illinois makes the speech for him. Mr. WASHBURNE, of Illinois. He can make a speech for the gentleman from Wisconsin much better than the gentleman can for himself.

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Mr. ELDRIDGE. The gentleman does the most of the talking for him. Mr. BOUT WELL. I withdraw the call for the previous question, and ask the Clerk to read the dispatch which I send to the desk. The Clerk read as follows:

The question recurred on agreeing to the preamble. Mr. BOUTWELL. I demand the previous question. The previous question was seconded and the main question ordered. Mr. ELDRIDGE. I demand the yeas and nays. The yeas and nays were ordered. The question was taken; and it was decided in the affirmative—yeas 127, nays 35, not voting 53; ... So the preamble was agreed to.

Atlanta, Georgia, July 21, 1868. To Schuyler Colfax, Speaker House of Representatives: Fourteenth article and fundamental conditions adopted by majority of thirty-­four on joint ballot. RUFUS D. BULLOCK Governor-­elect

100 “Georgia Restored to Civil Authority,” New York Times

Mr. MAYNARD. I hope the State of Alabama will be included in the resolution. Mr. BOUTWELL. I move to amend the resolution by inserting “Georgia.” Mr. BROOKS. On a mere private telegram? How do you know that that came over the wires? Mr. BROOMALL. We take it on faith. Mr. SPEAKER. The Chair doubts whether this is an official notice such as is required. It should be sent by mail. Mr. BOUTWELL. I withdraw the motion to amend. Mr. ELDRIDGE. I desire to propound a question to the gentleman from Massachusetts—whether this dispatch came into his hands through the post-­mortem examination committee? Mr. BOUTWELL. I have no knowledge of it. Mr. ELDRIDGE. Or whether it was a captured telegram that came in a legitimate way of business? Mr. BOUTWELL. I demand the previous question. The previous question was seconded and the main question ordered. Mr. HOLMAN and Mr. ELDRIDGE demanded the yeas and nays. The yeas and nays were ordered. Mr. HOLMAN. I believe the proposition is divisible. I call for a separate vote on the preamble. The SPEAKER. It is divisible; a separate vote will be taken on the preamble. The question now is on agreeing to the resolution. The question was taken; and it was decided in the affirmative—yeas 127, nays 33, not voting 55; ... So the resolution was agreed to.

July 24, 1868, p. 5

Atlanta, Ga., Thursday, July 23.

Gen. Meade has issued general orders, in substance the same as those issued in regard to Florida, that the Legislature of Georgia having complied with the acts of Congress, the Commanding-­General orders that civil officers holding by military authority, or by reason of failure to have successors qualified, shall yield such offices and turn the same over to qualified successors, with all public property, archives, &c.; that the military [ ] abstain from interference or control over civil authority; writs of habeas corpus from the United States Courts must be respectfully obeyed, and the decisions of the Courts conformed to. The Democracy to-­day had a grand mass meeting and procession here. Addresses were made by Gens. Combs, Cobb and Hon. Benjamin Hill, opposing the Reconstruction acts as unconstitutional, and hoping for the success of Seymore and Blair, and pledging the South to support the Constitution and the Union of States as handed down by our forefathers.

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B. Ratification, doc. 101

Article XIV Section 1. All persons born or naturalized 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, excluding 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 Congress, the executive and 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. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and 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 payment 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, obligations, and claims shall be held illegal and void.

101 Secretary of State William Seward, Final Proclamation of the Ratification of the Fourteenth Amendment 15 Stat. 708, July 28, 1868*

To all whom these presents may come, greeting: Whereas by an act of Congress passed on the twentieth of April, one thousand eight hundred and eighteen, entitled, “An act to provide for the publication of the laws of the United States and for other purposes,” it is declared that whenever official notice shall have been received at the Department of State that any amendment which heretofore has been and hereafter may be proposed to the Constitution of the United States has been adopted according to the provisions of the Constitution, it shall be the duty of the said Secretary of State forthwith to cause the said amendment to be published in the newspapers authorized to promulgate the laws, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid to all intents and purposes, as a part of the Constitution of the United States. And whereas the Congress of the United States, on or about the sixteenth day of June, one thousand eight hundred and sixty-­six, submitted to the legislatures of the several States a proposed amendment to the Constitution in the following words, to wit: Joint Resolution Proposing an Amendment to the Constitution of the United States. Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring), That the following article be proposed to the legislatures of the several States as an amendment to the Constitution of the United States, which when ratified by three fourths of said legislatures, shall be valid as part of the Constitution, namely:—

* Sanger, Statutes at Large, 15:​708–11 (Appendix, Proclamations and Executive Orders, No. 13). 425

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Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. SCHUYLER COLFAX , Speaker of the House of Representatives. LA FAYETTE S. FOSTER , President of the Senate pro tempore. Attest: Edwd. McPherson, Clerk of the House of Representatives. J.W. Forney, Secretary of the Senate. And whereas the Senate and House of Representatives of the Congress of the United States on the twenty-­ first day of July, one thousand eight hundred and sixty-­ eight, adopted and transmitted to the Department of State a concurrent resolution, which concurrent resolution is in the words and figures following, to wit:— In Senate of the United States July 21, 1868. Whereas the Legislatures of the States of Connecticut, Tennessee, New Jersey, Oregon, Vermont, West Virginia, Kansas, Missouri, Indiana, Ohio, Illinois, Minnesota, New York, Wisconsin, Pennsylvania, Rhode Island, Michigan, Nevada, New Hampshire, Massachusetts, Nebraska, Maine, Iowa, Arkansas, Florida, North Carolina, Alabama, South Carolina, and Louisiana, being three fourths and more of the several States of the Union, have ratified the fourteenth article of amendment to the Constitution of the United States duly proposed by two thirds of each House of the Thirty-­Ninth Congress; therefore, Be it resolved by the Senate, (the House of Representatives concurring,) That said fourteenth article is hereby declared to be a part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State. Attest: GEO. C. GORHAM, Secretary. In the House of Representatives, July 21, 1868. Resolved, That the House of Representatives concur in the foregoing concurrent resolution of the Senate ‘declaring the ratification of the fourteenth article of amendment of the Constitution of the United States.’ Attest: Edwd McPherson, Clerk.

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And whereas official notice has been received at the Department of State that the legislatures of the several States next hereinafter named have, at the times respectively herein mentioned, taken the proceedings hereinafter recited upon or in relation to the ratification of the said proposed amendment called article fourteenth, namely: The legislature of Connecticut ratified the amendment June 30th, 1866; the legislature of New Hampshire ratified it July 7th, 1866; the legislature of Tennessee ratified it July 19th, 1866; the legislature of New Jersey ratified it September 11th, 1866, and the legislature of the same State passed a resolution in April, 1868, to withdraw its consent to it; the legislature of Oregon ratified it September 19th, 1866, the legislature of Texas rejected it November 1st, 1866; the legislature of Vermont ratified it on or previous to November 9th, 1866; the legislature of Georgia rejected it November 13th, 1866, and the legislature of the same State ratified it July 21st, 1868, the legislature of North Carolina rejected it December 4th, 1866, and the legislature of the same State ratified it July 4th, 1868; the legislature of South Carolina rejected it December 20th, 1866, and the legislature of the same State ratified it July 9th, 1868; the legislature of Virginia rejected it January 9th, 1867, the legislature of Kentucky rejected it January 10th, 1867, the legislature of New York ratified it January 10th, 1867; the legislature of Ohio ratified it January 11th, 1867, and the legislature of the same State passed a resolution in January, 1868, to withdraw its consent to it; the legislature of Illinois ratified it January 15th, 1867; the legislature of West Virginia ratified it January 16th, 1867; the legislature of Kansas ratified it January 18th, 1867; the legislature of Maine ratified it January 19th, 1867; the legislature of Nevada rati‑ fied it January 22d 1867; the legislature of Missouri ratified it on or previous to January 26th, 1867; the legislature of Indiana ratified it January 29th, 1867; the legislature of Minnesota ratified it February 1st, 1867; the legislature of Rhode Island ratified it February 7th, 1867; the legislature of Delaware rejected it February 7th, 1867; the legislature of Wisconsin ratified it February 13th, 1867; the legislature of Pennsylvania ratified it February 13th, 1867; the legislature of Michigan ratified it February 15th, 1867; the legislature of Massachusetts ratified it March 20th, 1867; the legislature of Maryland rejected it March 23d, 1867; the legislature of Nebraska ratified it June 15th, 1867; the legislature of Iowa ratified it April 3d, 1868; the legislature of Arkansas rati-

B. Ratification, doc. 102

fied it April 6th, 1868; the legislature of Florida ratified it June 9th, 1868; the legislature of Louisiana ratified it July 9th, 1868; and the legislature of Alabama ratified it July 13th, 1868. Now, therefore, be it known that I, William H. Seward, Secretary of State of the United States, in execution of the aforesaid act, and of the aforesaid concurrent resolution of the 21st of July, 1868, and in conformance thereto, do hereby direct the said proposed amendment to the Constitution of the United States to be published in the newspapers authorized to promulgate the laws of the United States, and I do hereby certify that the said proposed amendment has been adopted in the manner hereinbefore mentioned by the States specified in the said concurrent resolution, namely, the States of Connecticut, New Hampshire, Tennessee, New Jersey, Oregon, Vermont, New York, Ohio, Illinois, West Virginia, Kansas, Maine, Nevada, Missouri, Indiana, Minnesota, Rhode Island, Wisconsin, Pennsylvania, Michigan, Massachusetts, Nebraska, Iowa, Arkansas, Florida, North Carolina, Louisiana, South Carolina, Alabama, and also by the legislature of the State of Georgia; the States thus specified being more than three fourths of the States of the United States. And I do further certify that the said amendment has become valid to all intents and purposes as a part of the Constitution of the United States. In testimony whereof I have hereunto set my hand and caused the seal of the Department of State to be affixed. Done at the city of Washington this twenty-­eighth day of July, in the year of our Lord one thousand eight hundred and sixty-­eight, and of the Independence of the United States of America the ninety-­third. WILLIAM H. SEWARD, Secretary of State.

102 George W. Paschal, “The Fourteenth Article,” New York Tribune August 6, 1868, p. 2*

To the Editor of the Tribune. Sir: I regret that the public taste of our country should render it necessary to connect great philosophical reformation in society with the political scrambles for power. From the very foundation of the Government citizenship was a thing undefined, obscure and uncertain. The Civil Rights bill, in some measure, removed that obscurity. But the President, and many of his adherents, followed the loose dicta in the Dred Scott decision, denied the power of Congress to confer citizenship upon anyone in whose veins coursed African blood. The amendment makes the definition clear, explicit, and organic. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” There can be no quibble except upon the word person. There are those who believe that it cannot apply to the red man or the black man, the mulatto or the mestizo. But the good sense of the country will accept the word as applying to every human being born under the jurisdiction of the United States, or naturalized by Congress, or according to “uniform rule.” The lines defining American citizenship will no longer be a matter of doubt. Nor is the remaining guarantee in this clause less important. “No state shall make or enforce any law abridging the privileges or immunities of citizens of the United * [George W. Paschal was a Texas judge, legal scholar, and political activist and one of the first professors of jurisprudence in the law department of Georgetown University—a department he helped found. See Richard Aynes, “George Washington Paschal,” in American National Biography, ed. John A. Garraty and Mark C. Carnes (New York: Oxford University Press, 1999), 17:​107. Paschal had been a member of the Southern Loyalists Convention, where he joined Frederick Douglass in calling for the passage of the Fourteenth Amendment and the protection of “the right to peaceably assemble” and the “constitutional guarantees of freedom and free speech and a free press.” See this volume, 1B, doc. 20. —Ed.] 427

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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.” Law readers are so accustomed to see similar provisions in the State Constitutions, that they underrate this national guaranty. They should have lived in the South, where there was always a class of “persons” for whom there was a summary and barbarous code; they should know that the national bill of rights has, by a common error, been construed not to apply to or control the States; they should have seen and felt that for 30 years there was even half the area of the Union where no man could speak, write, or think against the institution of Slavery; they should know that even now to be called a “Radical” is to endanger life; they should know that all the laws passed under Mr. Johnson’s new governments reestablish slavery in a more onerous form to the blacks than the rule of buying and selling and scourging. If the extent of this national guaranty be asked, the answer is found in the fifth clause: “The Congress shall have power to enforce by appropriate legislation the provisions of this article.” All laws will be passed which time and experience shall prove to be “necessary and proper.” The second clause was not necessary to exclude the “Three-­fifths basis.” That had fallen with the Thirteenth Amendment. But it makes it the interest of the States to exclude no class of male citizens from the polls; because thereby such States would abridge their number of representatives in Congress. This will very soon remove all agitation about disfranchising the negroes in the States where they now vote. And as soon as experience shall demonstrate the workings of the rule, neither negroes, Indians, nor Chinamen will be long excluded. The love of power and of justice will soon override the mere prejudices against race or caste. As to the disqualification clause, I only regret its necessity. But it relates to all time, past, present, and future; and therefore it is eminently wise. Possibly it supersedes the test oath. If so, it is a great gain to the late Rebels. It will stand as a warning monument in the future. The guarantee about the national debt concerns your section more than mine. It likewise relates to the future as well as the past, and is a security for suppressing the rebellions. The guarantee against paying the Rebel debt and for slaves did not come too soon. If not made organic the interest of political parties would have insured the payment.

Thus, Sir, the stone which the builders rejected has become the chief of the corner. Slavery has been stricken out of the Constitution and the rights of men guaranteed. I feel for the first time, that our country rests upon an enduring basis. I no longer fear the murderous rebellious spirit too common in “the South.” The devotees of the Union and black men may occasionally fall, but there has been established a national power and jurisdiction which can control belligerent spirits by appropriate legislation. The consequences of civil war are now before every man. The rebel debt and all claims for emancipated slaves are “dead issues.” In this last my family are sufferers, in common with other Southern Unionists who girded on their swords and fought under the National flag until their last negro was free. The opposition to the Amendment does not come from these, but from the Rebels, who risked all and lost all. Keep this amendment before the people until the election is over. Force every supporter of the New York nominees to say whether he intends to amend it or to disregard it? And whisper to him, that the 400,000 Southern Union soldiers, white and black, and the 4,000,000 whom they represent do not intend to surrender it peaceably. It is a revolution accomplished. We shall live and die by it. I say this in no spirit of threat, but as one of those men who have been schooled in the principles of self-­defense, and who well know what is life and death to them. The amendment has been constitutionally made. We shall maintain it, “peaceably if we can, forcibly if we must.” Geo. W. Paschal Austin, Texas, July 24, 1868.

103 John Bingham, “The Great Importance of the Fourteenth Amendment,” New York Herald December 3, 1868, p. 5

Cadiz, Ohio, Nov. 20, 1868.

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“No, sir,” said Mr. Bingham, “reconstruction is not yet done with—the future is not secure.” “And why not?” “Because the fourteenth amendment is not safe.

B. Ratification, doc. 103

Every power for the salvation of the general government is in that measure, and it is eminently necessary that it should become properly and beyond all question part of the law, for without it there is no power. Attempts to destroy the Union are not the less but the more imminent for an attempt having once been made; but the next attempt may not assume the military character. It may come in a shape that will require us to fight it in the courts or be unable to raise our hands against it. The government must be able to crush in the courts those possible abuses of power on the part of the States that put them in conflict with the nation.” “What is the exact status of the amendment now?” “Well, the Chief Justice, in a charge in Virginia, said it was part of the law, and this apparently does for the people; but if this is only a declaration of the Chief Justice the majority of the associate Justices can overrule it.” “But is this only a declaration of the Chief Justice?” “The amendment was proclaimed by Mr. Seward as excepted, but it was proclaimed with an if and a ‘whereas,’ dubiously. Congress has by joint resolution declared the measure carried; but a joint resolution is a law only of the two houses. Unless, then, there is something more than all this the amendment cannot stand an examination in court. Congress must by bill, reciting the amendment and naming the States that have voted for it, solemnly declare it part of the organic law. It will have no force till this is done. There is a bill for this purpose now lying on the table of the Judiciary Committee which that committee agreed to report and did not, and which stands as unfinished business. Every day that goes by without the passage of such a bill by Congress imperils the amendment greatly. Oregon has withdrawn her assent, and Ohio and New Jersey have done the same. This leaves us only twenty-­eight States, and a loss of another would deprive us of three-­fourths.” “Do you assent, then, to the right of States to withdraw a vote like this?” “No. I believe it is a case in which the power of the Legislature is exhausted when it is exercised in the first instance. But a law like this should not be left to legal nicety. The acceptance of this law was the first will of the people in a great moment. It was the broad, honest impulse, the intuition of the right that swept from Maine to California. The intuitions of a great people are the highest political wisdom. When such an intuition is crystallized into law that law represents the universal, even though unconscious, perception of some great truth.”

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“You consider, then, that the whole future of the relations between the general government and the States depends upon the fourteenth amendment, and that the only security the war has given is in the power it gave us to make that amendment?” “Substantially that. There was evidently no power of prevention in the constitution before, and there was none because the framers of that instrument did not deem any necessary. They assumed political honor. They guarded the national existence with the obligation of an oath—the oath of allegiance to the constitution of the United States that every State official takes. Daniel Webster held that the very vitality of the government was in that oath. And, as a matter of fact, we have seen that it was at this very oath that the rebellion directed its first blow. It began there. It required of all its creatures as a first step the recantation of that oath and the swearing allegiance to another power. That was so far a dissolution of the Union. That means, therefore, of guarding the government is not to be depended upon. Fortunately for the country secession did not rest there. It was tempted to the misstep of war. This is what the Northern democrats did for us. They wanted some share in rebellion too. There was in New York, in 1861, a powerful organization whose object was the secession and the creation of an independent republic—a sort of New Venice. These men did not see any assistance for them in the legal attitude of the South, and pushed the Southern leaders to overt acts, with a pledge that not a regiment should ever march against them from the North. Then came an act of war.” “And this you hold was to the advantage of the nation?” “The act of war put the movement in such a shape that we could take hold of it. How else, moreover, could we ever have mustered the North? How could we have raised armies among a people used to the utmost limit of political difference for such a purpose as the coercion of an unarmed population that simply claimed a right? It was the act of war that raised the country and gave us all power, and that too within the constitution. By the constitution Congress may declare war, and the right to make war involves the right to do any act that is necessary to secure the objects of the war.” “But suppose a similar movement in the hands of men wiser by the failure of the Southern leaders—men pretending or feeling a grievance that may exist anywhere, and not to be deluded by democratic promises into making war against twenty millions of a free

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people—suppose they did all nominally within the law, so that they could only be fought in the courts?” “Well, without the fourteenth amendment you would be powerless against them. That amendment puts in the hands of the general government in time of peace the power that is not in the rest of the constitution, because when the constitution was framed its necessity was not foreseen. All rested then on the sacredness of an oath. But since we have seen there is no power in that it would be folly not to use other means—not to control men by agents they respect—against the always possible abuses of State power, which would put any section in the attitude held by the South before it made war, and which would constitute a practical dissolution of the Union. There is no remedy but in this article. In the law’s respect for the proper rights of States it is not easy to get a hold of even the abuse of those rights. Suppose a case of simple secession in which war is not made upon us. The Legislature adjourns and refuses to elect Senators. The people do not choose Congressmen and there is merely the failure of the national phase of the State’s existence through non-­performance of functions that you cannot without the amendment compel them to perform. It is only through the States that the machinery of the national government comes into existence, and any State may thus to a degree cripple us in the abuse of its powers. Or if the citizen of a Northern State moves into a Southern State and takes his residence there, they can tax his property to the extent of confiscation to pay for their lost niggers, and you cannot get it into a national court, for a State is absolute in its sphere. These are not chimerical evils; for they are doing worse than this all the time.” “General Thomas says of his district that murder prevails by the consent of society.” “Well, the fourteenth amendment is full of power for all the occasions likely to arise. It provides against the payment of all rebel claims in any guise; it gives the protection of the nation to its citizens and in a large sense provides against unforeseen dangers in the clause for ‘appropriate legislation.’ It assures for the first time in our history against all possibilities the integrity of the body politic, the United States, the political rights of the nation. It provides that no States shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. It is one of these privileges to choose representatives, to be represented in the Senate and to vote for that body, a State body too, that chooses a President. Some of the immunities are

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freedom from cruel and unusual punishment and unlawful seizures. It gives us full power to protect our citizens, and it was needed. Hitherto there has been no question of our right to protect our citizens in foreign countries, as the Kosta case extremely illustrates—the case of a man only a citizen by declaration and so positively protected by your New Yorker, Marcy. But when a greater outrage was committed in South Carolina against a citizen resident in another State there was no remedy under any authority.” “Your view of the power of the amendment, then, is, in brief, that it puts more definitely the law of relative national and State supremacy.” “It guards us against what we must always count upon, the abuses of State power, and unless we have such a guard we are in no better position than we were before the war. The framers of the constitution did not count upon these abuses and did not provide us with remedies. They supposed a spirit in all our governments in which men would be as little ready to encroach on others as to have others encroach on them, because the danger is in departure to whatever side from the spirit of the law. We have found that to be a delusive dependence and must act from our experience.” “State rights proper, then, you do not regard as necessarily in conflict with the central power, except in their abuse.” “Yes, it is a true national duty to guard the people of the United States against the abuses of the powers the States rightfully have. Chancellor Kent says:—‘The judicial power of the United States is necessarily limited to national objects. The vast field of the law of property, the very extensive head of equity jurisdiction, the principal rights and duties which flow from our civil and domestic relations fall within the control and, we might almost say, the exclusive cognizance of the State governments. We look essentially to the State courts for protection to all these momentous interests.’ This is right, as it supposes a natural state of society, where the agents of the law endeavor to do justice. We have another state of affairs to deal with, where the agents and ministers of the government and the law use it as a machine to give effect to a revengeful spirit and vent their will on whatever helpless ones they find within their reach. In such a case the protection of property and personal right becomes a national object.” ... “What is your opinion of the proposed amendment for universal suffrage.”

B. Ratification, doc. 103

“The question of universal suffrage is an inevitable part of the future. Suffrage is confined to male persons by the tradition of the government, and to free persons, but not to whites. The word white was deliberately voted out of the phraseology of the Constitution. Kent said of even the slaves that they were ‘citizens under disabili-

ties,’ but now we have removed the disabilities. They are all free and thus come under the old description of voters, ‘free male persons.’ ‘We the people of the United States’ meant the whole body of free male citizens, black or white; and that it should mean this constitutes a republican government.”

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A. Drafting

Introduction to Part 2A The Fortieth Congress: Membership 1. US Senate, Exclusion of Georgia Senator Joshua Hill, Proposed Suffrage Amendment (Dec. 7, 1868) 2. US House, George Boutwell (R-­MA), Proposed Suffrage Bill and Suffrage Amendment (Jan. 11, 1869) 3. US Senate, John B. Henderson (R-­MO), Proposed Suffrage and Office Holding Amendment (Jan. 23, 1869) 4. US House, George Boutwell, Proposed Suffrage Bill and Suffrage Amendment (Jan. 23, 1869) 5. US House, Suffrage Amendment, Speech of Charles A. Eldridge (D-­WI), Debate (Jan. 27, 1869) 6. US Senate, Suffrage and Office Holding Amendment (Jan. 28, 1869) 7. US House, Suffrage Amendment, Debate on Suffrage Bill (Jan. 28, 1869) 8. US House, Suffrage Amendment, Speech of John Bingham, Debate (Jan. 29, 1869) 9. US House, Suffrage Amendment, Alternative Versions Rejected, Passage of Amendment (Jan. 30, 1869) 10. US Senate, Suffrage and Office Holding Amendment, Debate (Feb. 4, 1869) 11. US Senate, Suffrage and Office Holding Amendment, Speech of Charles Sumner (Feb. 5, 1869)

12. US Senate, Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869) 13. US Senate, Suffrage and Office Holding Amendment, Appointment of Electors, Passage of “Dual” Amendment (Feb. 9, 1869) 14. Elizabeth Cady Stanton, “Women and Black Men,” Revolution (Feb. 11, 1869) 15. US House, Suffrage Amendment, Nonconcurrence with Senate Proposal (Feb. 15, 1869) 16. US Senate, “Dual” Amendment on Suffrage, Office Holding, and Electors; Vote to Recede and Adopt Suffrage Amendment Proposed by House (Feb. 17, 1869) 17. Wendell Phillips, “The Senate and the Proposed Amendment,” National Anti-­Slavery Standard (Feb. 20, 1869) 18. US House, Suffrage Amendment, Addition of Language Protecting the Right to Hold Office (Feb. 20, 1869) 19. US Senate, Suffrage Amendment, Call for Conference with House (Feb. 23, 1869) 20. US House, Suffrage Amendment, Removal of Language Protecting Office Holding, Passes without Debate (Feb. 25, 1869) 21. US Senate, Suffrage Amendment, Debate and Passage (Feb. 26, 1869)

Introduction to Part 2A

The question of black suffrage was a matter of significant public debate long before the debates on the Fifteenth Amendment. Even before the ratification of the Thirteenth Amendment, Louisiana freedmen were organizing to secure the right to vote (see vol. 1, 2B, doc. 17). Frederick Douglass insisted that the freedmen would not be truly free until they were guaranteed access to the ballot box (see part 1B, docs. 21 and 50), and he refused to support the Fourteenth Amendment precisely because of its failure to secure political rights for blacks. Although Section Two of the Fourteenth Amendment penalized states that excluded blacks from the electorate, nothing in the amendment expressly prohibited the states from preferring the penalty over black suffrage—

indeed, Section Two appeared to constitutionally permit such a choice. With the passage of the Reconstruction Acts, Congress moved further in the direction of securing black suffrage by requiring the registration of Southern black voters and permitting them to vote on the creation of a new state constitution and a new state government (see part 1B, docs. 74 and 77). Congress also imposed “fundamental conditions” on the readmission of former rebel states such as Arkansas, North and South Carolina, Louisiana, Georgia, Alabama, and Florida, prohibiting these states from denying blacks the right to vote any time in the future (see part 1B, docs. 74, 77, 89 and 93). It remained unclear, however, whether such 435

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conditions were enforceable, much less constitutional. Even in those Southern states required by federal law to permit black suffrage, the exercise of black political power faced stiff resistance. In Georgia, for example, although blacks had been permitted to vote for members of the state legislature, the Georgia State Assembly voted to remove elected black representatives, claiming that blacks had the right to vote but not the right to hold office. The removal outraged Republican members of Congress who had voted to readmit the state of Georgia, and it prompted the Senate’s refusal to seat Georgia senator Joshua Hill at the opening of the third session of the Fortieth Congress (see doc. 1). By that time, Republican congressional leaders had decided that the time had come to take the final step toward constitutionally securing the equal political rights of freedmen: passage of a fifteenth amendment abolishing racial discrimination in voting. Congress drafted and debated the Fifteenth Amendment during the third session of the Fortieth Congress, between December 7, 1868, and March 3, 1869. A widely shared sense of urgency to see it completed before the end of the session resulted in both houses of Congress working on various suffrage amendments at the same time. The multiplicity of versions and votes, with drafts bouncing back and forth between the two houses, inevitably produced periods of substantive and procedural chaos. As a result, the debates can be difficult to follow, at least in terms of the actual sequence of events and the evolution of various drafts. Still, there is an identifiable flow to the general debate: the House moved first and adopted a suffrage amendment on January 30, 1869 (doc. 9); the Senate adopted its own version on February 9 (doc. 13); and, in the last weeks of February, a flurry of procedural votes and exchanged drafts concluded with both houses passing a final, joint-­conference draft on February 25 and 26, 1869 (docs. 20 and 21). The issues up for debate also followed a general sequence. Each chamber began by considering whether Congress already had the power to secure black suffrage by way of a bill or whether it was necessary to first pass a constitutional amendment. Although radical Republicans argued no amendment was necessary (see, e.g., docs. 4 and 11), both houses ultimately decided to proceed by way of amendment. The next set of issues involved questions of scope: Should the amendment protect both the right to vote and the right to hold office? And should the right to vote be limited to prohibiting racial discrimination (“impartial” suffrage), or

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should it more universally protect against discrimination based on conditions such as past servitude, education, nativity, property, and religious creed? (Consider, e.g., docs. 8, 9, 10, and 12.) Finally, once each house had decided for itself on issues of scope, it became a race against the clock as the two houses tried to reach a mutual agreement on the draft amendment before the end of the session. Embedded within the debates on suffrage are extended and sophisticated discussions of congressional power and constitutional meaning. Just as the Fourteenth Amendment drafting debates contained extended discussions of the meaning and scope of the Thirteenth Amendment, so the Fifteenth Amendment drafting debates contain substantial commentary on the meaning and scope of the Fourteenth Amendment, especially the Citizenship Clause and the Privileges or Immunities Clause of Section One and the suffrage provision of Section Two. Also, as was true during the Fourteenth Amendment debates, the suffrage amendment debates included significant discussion of the scope of congressional power under the original Constitution (particularly the Republican Guarantee Clause and the “comity clause” of Article IV) as well as repeated references to and debates about the theories of Madison and Hamilton in the Federalist Papers and the original ratification debates (see, e.g., docs. 4 and 5). Driving these more expansive discussions about constitutional meaning and congressional power was the initial question of whether to protect suffrage by way of congressional statute or by way of constitutional amendment. In the earliest stages of the debate, members attempted to move in both directions at the same time. On January 11, 1869, Massachusetts Republican representative George Boutwell proposed both a suffrage bill and a suffrage amendment (doc. 2). On January 23, 1869, Boutwell delivered an extended speech explaining his theory of Congress’s preexisting power to protect the rights of suffrage (doc. 4). Boutwell believed that the Republican Guarantee Clause alone supplied Congress with sufficient power to regulate suffrage in the states and that additional authority could be derived from the Citizenship Clause of the Fourteenth Amendment. Boutwell explained his dual “bill and amendment” proposal as necessary to prevent the amendment from being read as implying otherwise nonexistent congressional power. When the Senate debated its own proposed suffrage amendment, Charles Sumner opposed the amendment precisely because he believed it sig-

I n t r o du c t i o n t o Pa r t 2 A

naled an erroneously narrow interpretation of existing constitutional authority. According to Sumner, “The amendment admits that, under the National Constitution, as it is, with its recent additions, a Caste and an Oligarchy of the skin may be set up by a State without any check from Congress; that these ignoble forms of inequality are consistent with republican government; and that the right to vote is not an existing privilege and immunity of citizenship” (doc. 11). Democrats, of course, flatly denied that the Constitution granted Congress any power to interfere with the states’ regulations of suffrage (see, e.g., docs. 5 and 12). Most Republicans also denied (or at least seriously doubted) that Congress had the power to proceed by statute. According to Michigan senator Jacob Howard:

color, or previous condition of slavery of any citizen or class of citizens of the United States. Sec. 2. The Congress shall have power to enforce by proper legislation the provisions of this article. (doc. 2)

These provisions, Boutwell assured his colleagues, “are the last as far as I can foresee of a series of great measures growing out of the rebellion, and necessary for the reorganization and pacification of the country” (doc. 4). Responding to federalism-­based objections to nationalizing suffrage, Boutwell insisted that from the beginning, Congress had the power to regulate suffrage in the states, if only to ensure the survival of the national government should a state refuse to authorize a vote for federal representatives. Additional power could be found in Section One of the Fourteenth Amendment, which granted Congress the authority to protect “the right to vote” as “one of the privileges of the citizen.” This already-­existing power, however, was best supplemented with a constitutional amendment. If Congress were to act only by way of a statute, one could not “be assured of its fate in some future Congress.” Passage would be assisted by the Reconstruction Acts, which had already “given to the colored people in several of the States the power to vote. . . . These men have by the Constitution and by the judgment of the people of this country been declared citizens and entitled to all the rights of citizens” (doc. 4). Although most of Boutwell’s Republican colleagues disagreed that Congress had the preexisting power to regulate suffrage in the states, most nevertheless agreed with the effort to give black citizens the ballot. Disagreement was grounded on whether banning racial discrimination in voting would be enough or whether states would find alternative ways of disfranchising freedmen. On January 27, 1869, Ohio representative and primary author of Section One of the Fourteenth Amendment John Bingham proposed replacing Boutwell’s Section One with a far broader amendment:

I feel constrained to say here now that this is the first time it ever occurred to me that the right to vote was to be derived from the fourteenth article. I think such a construction cannot be maintained. No such thing was contemplated on the part of the committee which reported the amendment; and if I recollect rightly, nothing to that effect was said in debate in the Senate when it was on its passage. One word further. The construction which is now sought to be put upon the first section of this fourteenth article, it seems to me, is plainly and flatly contradicted by what follows in the second section of the same article. (doc. 12)

Even the radical Massachusetts senator Henry Wilson conceded that “some of the ablest statesmen and most eminent jurists in and out of Congress question the constitutional authority to enact such a law,” and that “perhaps a large majority[ ] of the Republicans of the country entertain serious doubts of the right to secure equal suffrage by congressional legislation” (doc. 12). It was best, Wilson advised, to proceed by way of an amendment, submitting it to the states and “putting forth our full strength to secure its adoption.” Both houses quickly concluded that there was little if any support for a suffrage bill, and the assemblies focused their efforts on drafting an acceptable amendment. In the House, Boutwell’s opening proposal was the following: Article —. Sec. 1. The right of any citizen of the United States to vote shall not be denied or abridged by the United States or any State by reason of the race,

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No State shall make or enforce any law which shall abridge or deny to any male citizen of the United States, of sound mind, and over twenty-­one years of age, the equal exercise of the elective franchise at all elections in the State wherein he shall have actually resided for a period of one year next preceding such election, except such of said citizens as shall hereafter engage in rebellion or insurrection, or who may have been or shall be duly convicted of treason

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or other crime of the grade of felony at common law. (doc. 5)

Bingham’s proposal went far beyond prohibiting racial discrimination in voting, asserting that no state law could abridge the “equal exercise of the elective franchise” among males, whether the distinction was based on education, property, religious creed, prior condition of servitude, or something else. On January 29, 1868, Bingham explained the inadequacies of Boutwell’s original proposal. If adopted, he said, “States may set up a religious test, and pronounce at once that all who are not of the Protestant faith shall be disqualified either to vote or to hold office, and add thereto a property qualification and an educational qualification” (doc. 8). Under Bingham’s proposal, however, “these abuses by States will hereafter be impossible.” The majority of the House, however, was satisfied with Boutwell’s original, more limited proposal—on January 30, it voted down broader proposals by Bingham and his Ohio colleague Samuel Shellabarger and adopted Boutwell’s proposal on a vote of 150–42 (Bingham voted “Nay”; doc. 9). The Senate began debating its own proposed suffrage amendments even before receiving word that the House had passed Boutwell’s amendment. On January 28, Nevada Republican senator William Stewart reported the suffrage amendment from the Senate Judiciary Committee, reading, “The right of citizens of the United States to vote, and hold office shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of servitude” (doc. 6). As had been the case in the House, a number of Senators objected to the limited scope of an amendment that only prohibited racial discrimination. Complained Indiana Republican senator Oliver P. Morton, under such a limited amendment, “colored men . . . may be disfranchised for want of education or for want of intelligence. The States of Louisiana and Georgia may establish regulations upon the subject of suffrage that will cut out forty-­nine out of every fifty colored men in those States from voting, and what may be done in one of these States may perhaps be done in others” (doc. 10). On February 8, 1869, Massachusetts senator Henry Wilson proposed a broader amendment protecting both the rights to vote and to hold office from discrimination based on “race, color, nativity, property, education, or creed” (doc. 12). Then, on February 9, the Senate passed a “dual amendment” composed of Wilson’s proposed suffrage amendment and a separate amendment pro-

viding for the popular election of state electors (doc. 13). This oddly shaped amendment was ill-­received in the House, where members immediately raised objections regarding the amendment’s failure to prohibit discrimination on the basis of “prior condition of servitude” (see, e.g., doc. 15). No doubt, the same members who preferred a narrower, race-­only-­based amendment also disfavored the multiple-­category prohibition of the Senate’s version. Over Bingham’s objection (reflecting, again, his preference for a broader amendment), on February 15, 1869, the House voted 37–133 to reject the suffrage section of the Senate’s “dual amendment,” and rejected the second section without bothering to call for the “yeas and nays” (doc. 15). On February 17, after the Senate had received word of the House’s rejection of its draft, Senator William Stewart attempted what he must have thought was a clever parliamentary move: he proposed that the Senate simultaneously vote to rescind its earlier Wilson-­drafted proposal and vote instead on the House’s original Boutwell-­ drafted proposal (doc. 16). Rather than being clever, the attempt triggered parliamentarian chaos. Page after page of the Congressional Globe reports procedural confusion as members debated whether Stewart’s proposal was possible, how to proceed if it was, and whether it should be attempted at all.1 In the end, the Senate voted to rescind its earlier vote on the Wilson-­drafted “dual amendment”—a vote requiring no more than a majority—but failed to achieve the two-­thirds vote necessary to adopt the House’s Boutwell-­drafted impartial suffrage amendment. Finally, an exhausted assembly successfully voted 35–11 to adopt the following, slightly amended version of Stewart’s original proposal protecting both the right to vote and the right to hold office: Article XV. The right of citizens of the United States to vote and hold office shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legislation. (doc. 16)

By this point, the session had entered its final days. Worried onlookers who supported a black suffrage amendment feared that members holding out for a

438

1. The Senate debates over Stewart’s procedural proposal are not included in this collection but may be found at Cong. Globe, 40th Cong., 3rd Sess., 1284–300 (Feb. 17, 1869).

The Fortieth Congress: Membership

broader amendment might end up defeating any chance for an amendment this session—or ever. Accordingly, even the most radical civil rights advocates began calling for compromise; better a narrow amendment than no amendment at all. On February 20, 1869, writing in the National Anti-­Slavery Standard, Wendell Phillips pleaded, “For the first time in our lives we beseech [radical congressional Republicans] to be a little more politicians—and a little less reformers—as those functions are usually understood” (doc. 17). The same day Phillips published his essay, the House received and rejected the Senate’s narrow impartial-­ voting and office-­holding amendment. Led by John Bingham, the House instead voted 92–70 in favor of a broader amendment, which declared: The right of citizens of the United States to vote and hold office shall not be denied or abridged by any State on account of race, color, nativity, property, creed, or previous condition of servitude. (doc. 18)

Bingham conceded that he “would have inserted the other word ‘education,’ but I know that the general sense of the American people is so much for education, that chief defense of nations, that if they will not take care of that interest they will take care of nothing” (doc. 18). When, on February 23, 1869, the Senate received this new amendment from the House, it refused to concur and instead called for a conference with the House (doc. 19). Senate conference members included William Stewart (R-­NV), Roscoe Conkling (R-­NY), and George Edmunds (R-­ V T), while House members included George S. Boutwell (R-­MA), John Bingham (R-­OH), and John A. Logan (R-­IL; see doc. 19, p. 535, note †). On February 25, 1869, the Conference Committee submitted what amounted to the narrowest proposal considered by either house the entire session. Limited to racial discrimination in voting, the draft amendment declared:

fully supporting the stripped-­down amendment, Senator Wilson lamented, “Do not tell me, sir, that the right to vote carries with it the right to hold office. It does no such thing. . . . I believe, however, that if the black men have the right to vote they and their friends in the struggle of the future will achieve the rest. Therefore I am willing now to give them the right to vote if I cannot get for them the right to be voted for. I will take that if I cannot get any more” (doc. 21).

The Fortieth Congress Membership*

Alabama Senators George E. Spencer, Decatur Willard Warner, Montgomery Representatives Francis W. Kellogg, Mobile Charles Buckly, Montgomery Benjamin W. Norris, Elmore Charles Pierce, Demopolis John B. Callis, Huntsville Thomas Haughey, Decatur

Arkansas Senators Alexander McDonald, Little Rock Benjamin F. Rice, Little Rock Representatives Logan H. Roots, Devall Bluff James Hinds, Little Rock James T. Elliott, Camden Thomas Boles, Dardanelle

California Senators John Conness, Georgetown Cornelius Cole, San Francisco Representatives Essentially, this was Stewart’s previously adopted Sen- Samuel B. Axtell, San Francisco ate proposal, minus the language protecting office-­ William Higby, Calaveras holding. That same day, the House, without debate, James A. Johnson, Downieville voted 144–44 to pass the amendment (doc. 20). The next day, February 26, 1869, the Senate followed suit, pass* Biographical Directory of the United States Congress, 1774– ing the amendment on a vote of 39–13 (doc. 21). Regret- 2005 (United States Congress, 2005), 174–77. The right 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. (doc. 20)

439

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Connecticut Senators James Dixon, Hartford Orris S. Ferry, Norwalk Representatives Richard D. Hubbard, Hartford Julius Hotchkiss, Middletown Henry H. Starkweather, Norwich William H. Barnum, Lime Rock

Illinois Senators Lyman Trumbull, Chicago Richard Yates, Jacksonville Representatives Norman B. Judd, Chicago John F. Farnsworth, St. Charles Elihu B. Washburne, Galena Abner C. Harding, Monmouth Ebon C. Ingersoll, Peoria Burton C. Cook, Ottawa Henry P. H. Bromwell, Charleston Shelby M. Cullom, Springfield Lewis W. Ross, Lewiston Albert G. Burr, Winchester Samuel S. Marshall, McLeansboro Jehu Baker, Belleville Green B. Raum, Harrisburg At Large—John A. Logan, Carbondale

Delaware Senators George R. Riddle,1 Wilmington James A. Bayard,2 Wilmington Willard Saulsbury, Georgetown Representatives John A. Nicholson, Dover

Florida Senators Thomas W. Osborn, Pensacola Adonijah S. Welch, Jacksonville Representatives Charles M. Hamilton, Marianna

Indiana Senators Thomas A. Hendricks, Indianapolis Oliver P. Morton, Indianapolis Representatives William E. Niblack, Vincennes Michael C. Kerr, New Albany Morton C. Hunter, Bloomington William S. Holman, Aurora George W. Julian, Centerville John Coburn, Indianapolis Henry D. Washburn, Clinton Godlove S. Orth, La Fayette Schuyler Colfax, South Bend William Williams, Warsaw John P. C. Shanks, Jay Court House

Georgia Senators Vacant3 Representatives J. W. Clift, Savannah Nelson Tift, Albany W. P. Edwards, Butler Samuel F. Gove, Griswoldville C. H. Prince, Augusta P. M. B. Young, Cartersville

Iowa Senators James W. Grimes, Burlington James Harlan, Mount Pleasant Representatives James F. Wilson, Fairfield Hiram Price, Davenport William B. Allison, Dubuque William Loughridge, Oskaloosa Grenville M. Dodge, Council Bluffs Asahel W. Hubbard, Sioux City

1. Died March 29, 1867. 2. Appointed to fill vacancy caused by the death of George R. Riddle. He took his seat on April 11, 1867; he was subsequently elected. 3. On December 7, 1868, the credentials of Joshua Hill were presented but not acted upon. See this section, doc. 2. Congress ultimately voted to reverse its decision to readmit Georgia and instead reinstated military oversight of the state. See this volume, 2B, doc. 25. 440

The Fortieth Congress: Membership

Kansas Senators Samuel C. Pomeroy, Atchison Edmund G. Ross, Lawrence Representatives Sidney Clarke, Lawrence

Maryland Senators Reverdy Johnson,5 Baltimore William Pinkney Whyte,6 Baltimore George Vickers, Chesterton Representatives Hiram McCullough, Elkton Stevenson Archer, Bel Air Charles E. Phelps, Baltimore Francis Thomas, Frankville Frederick Stone, Port Tobacco

Kentucky Senators Garrett Davis, Paris James Guthrie, Louisville Thomas C. McCreery, Owensboro Representatives Lawrence S. Trimble, Paducah Elijah Hise, Russellville Jacob S. Golladay, Allensville J. Proctor Knott, Lebanon Asa P. Grover, Louisville Thomas L. Jones, Newport James B. Beck, Lexington George M. Adams, Barbourville Samuel McKee, Mount Sterling

Massachusetts Senators Charles Sumner, Boston Henry Wilson, Natick Representatives Thomas D. Eliot, Bedford Oakes Ames, North Easton Ginery Twichell, Brookline Samuel Hooper, Boston Benjamin F. Butler, Lowell Nathaniel P. Banks, Waltham George S. Boutwell, Groton John D. Baldwin, Worcester William B. Washburn, Greenfield Henry L. Dawes, Pittsfield

Louisiana Senators John S. Harris, Vidalia William Pitt Kellogg, New Orleans Representatives J. Hale Sypher, New Orleans James Mann,4 New Orleans Joseph P. Newsham, St. Francisville Michael Vidal, Opelousa W. Jasper Blackburn, Homer

Michigan Senators Zachariah Chandler, Detroit Jacob Howard, Detroit Representatives Fernando C. Beaman, Adrian Charles Upson, Coldwater Austin Blair, Jackson Thomas W. Ferry, Grand Haven Rowland E. Trowbridge, Birmingham John F. Driggs, East Saginaw

Maine Senators Lot M. Morrill, Augusta William Pitt Fessenden, Portland Representatives John Lynch, Portland Sidney Perham, Paris James G. Blaine, Augusta John A. Peters, Bangor Frederick A. Pike, Calais

Minnesota Senators Alexander Ramsey, St. Paul Daniel S. Norton, Winona

5. Resigned July 10, 1868. 6. Appointed to fill vacancy caused by the resignation of Reverdy Johnson and took his seat July 14, 1868.

4. Died August 28, 1868. His seat remained vacant for the remainder of the session. 441

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New Hampshire Senators Aaron H. Cragin, Lebanon James W. Patterson, Hanover Representatives Jacob H. Ela, Rochester Aaron F. Stevens, Nashua Jacob Benton, Lancaster

Representatives William Windom, Winona Ignatius Donnelly, Hastings Mississippi Senators Vacant Representatives Vacant

New Jersey Senators Alexander G. Cattell, Camden Frederick T. Frelinghuysen, Newark Representatives William Moore, Mays Landing Charles Haight, Freehold Charles Sitgreaves, Phillipsburg John Hill, Boonton George A. Halsey, Newark

Missouri Senators John B. Henderson, Louisiana Charles D. Drake, St. Louis Representatives William A. Pile, St. Louis Carman A. Newcomb, Vineland Thomas E. Noell,7 Perryville James R. McCormick,8 Ironton Joseph J. Gravely, Stockton Joseph W. McClurg,9 Linn Creek John H. Stover,10 Versailles Robert T. Van Horn, Kansas City Benjamin F. Loan, St. Joseph John F. Benjamin, Shelbyville George W. Anderson, Louisiana

New York Senators Roscoe Conkling, Utica Edwin D. Morgan, New York City Representatives Stephen Taber, Roslyn Demas Barnes, Brooklyn William E. Robinson, Brooklyn John Fox, New York City John Morrissey, New York City Thomas E. Stewart, New York City John W. Chanler, New York City James Brooks, New York City Fernando Wood, New York City William H. Robertson, Katonah Charles H. Van Wyck, Middletown John H. Ketsham, Dover Thomas Cornell, Rondout John V. L. Pruyn, Albany John A. Griswold, Troy Orange Ferriss, Glens Falls Calvin T. Hulburd, Brasher Falls James M. Marvin, Saratoga Springs William C. Fields, Laurens Addison H. Laflin, Herkimer Alexander H. Bailey, Rome John C. Churchill, Oswego Dennis McCarthy, Syracuse

Nebraska Senators John M. Thayer, Omaha Thomas W. Tipton, Brownville Representatives John Taffe, Omaha

Nevada Senators William M. Stewart, Virginia City James W. Nye, Carson City Representatives Delos R. Ashley, Austin 7. Died October 3, 1867. 8. Elected to fill vacancy caused by the death of Thomas E. Noell and took his seat December 17, 1867. 9. Resigned in 1868. 10. Elected to fill vacancy caused by the resignation of Joseph W. McClurg and took his seat December 7, 1868. 442

The Fortieth Congress: Membership

Theodore M. Pomeroy, Auburn William H. Kelsey, Geneseo William S. Lincoln, Owego Hamilton Ward, Belmont Lewis Selye, Rochester Burt Van Horn, Lockport James M. Humphrey, Buffalo Henry Van Aernam, Franklinville

George W. Morgan,15 Mount Vernon Columbus Delano,16 Mount Vernon Martin Welker, Wooster Tobias A. Plants, Pomeroy John A. Bingham, Cadiz Ephraim R. Eckley, Carrollton Rufus P. Spalding, Cleveland James A. Garfield, Hiram

North Carolina Senators Joseph Abbott, Wilmington John Pool, Elizabeth City Representatives John R. French, Edenton Nathaniel Boyden, Salisbury David Heaton, New Bern Alexander H. Jones, Asheville Israel G. Lash, Salem Oliver Dockery, Richmond John T. Deweese, Raleigh

Oregon Senators Henry W. Corbett, Portland George H. Williams, Portland Representatives Rufus Mallory, Salem

Pennsylvania Senators Simon Cameron, Harrisburg Charles R. Buckalew, Bloomsburg Representatives Samuel J. Randall, Philadelphia Charles O’Neill, Philadelphia Leonard Myers, Philadelphia William D. Kelley, Philadelphia Caleb N. Taylor, Bristol Benjamin M. Boyer, Norristown John M. Broomall, Media J. Lawrence Getz, Reading Thaddeus Stevens,17 Lancaster Oliver J. Dickey,18 Lancaster Henry L. Cake, Tamaqua Daniel M. Van Auken, Milford Charles Denison,19 Wilkes-­Barre George W. Woodward,20 Wilkes-­Barre Ulysses Mercur, Towanda George F. Miller, Lewisburg Adam J. Glossbrenner, York

Ohio Senators John Sherman, Mansfield Benjamin F. Wade, Jefferson Representatives Benjamin Eggleston, Cincinnati Rutherford B. Hayes,11 Cincinnati Samuel F. Cary,12 Cincinnati Robert C. Schenck, Dayton William Lawrence, Bellefontaine William Mungen, Findley Reader W. Clarke, Batavia Samuel Shellabarger, Springfield Cornelius Hamilton,13 Marysville John Beatty,14 Cardington Ralph P. Buckland, Fremont James A. Ashley, Toledo John T. Wilson, Tranquility Philadelphia Van Trump, Lancaster

15. Served until June 3, 1868; he was succeeded by Columbus Delano, who contested his election. 16. Successfully contested the election of George W. Morgan and took his seat June 3, 1868. 17. Died August 11, 1868. 18. Elected to fill vacancy caused by the death of Thaddeus Stevens and took his seat December 7, 1868. 19. Died June 27, 1867. 20. Elected to fill vacancy caused by the death of Charles Denison and took his seat November 27, 1867.

11. Resigned July 20, 1867. 12. Elected to fill vacancy caused by the resignation of Ruth­ erford B. Hayes and took his seat November 21, 1867. 13. Died December 22, 1867. 14. Elected to fill vacancy caused by the death of Cornelius Hamilton and took his seat February 5, 1868. 443

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William H. Koontz, Somerset Daniel J. Morrell, Jamestown Stephen F. Wilson, Wellsboro Glenni W. Scofield, Warren Darwin A. Finney,21 Meadville S. Newton Pettis,22 Meadville John Covode, Lockport James K. Moorhead, Pittsburgh Thomas Williams, Allegheny George V. Lawrence, Monongahela City

Texas Senators Vacant Representatives Vacant

Vermont Senators George F. Edmunds, Burlington Justin S. Morrill, Strafford Representatives Frederick Woodbridge, Vergennes Luke P. Poland, St. Johnsbury Worthington C. Smith, St. Albans

Rhode Island Senators Henry B. Anthony, Providence William Sprague, Providence Representatives Thomas A. Jenckes, Cumberland Nathan F. Dixon, Westerly

Virginia Senators Vacant Representatives Vacant

South Carolina Senators Thomas J. Robertson, Columbia Frederick A. Sawyer, Charleston Representatives B. F. Whittemore, Darlington C. C. Bowen, Charleston Simeon Corley, Lexington James H. Goss, Union Court House

West Virginia Senators Peter G. Van Winkle, Parkersburg Waitman T. Willey, Morgantown Representatives Chester D. Hubbard, Wheeling Daniel Polsley, Point Pleasant Bethuel M. Kitchen, Martinsburg

Tennessee Senators Joseph H. Fowler, Nashville David T. Patterson, Greeneville Representatives Roderick R. Butler, Mountain City Horace Maynard, Knoxville William B. Stokes, Alexandria James Mullins, Shelbyville John Trimble, Nashville Samuel M. Arnell, Columbia Isaac R. Hawkins, Huntington David A. Nunn, Brownsville

21. Died August 25, 1868. 22. Elected to fill vacancy caused by the death of Darwin A. Finney and took his seat December 7, 1868.

Wisconsin Senators James R. Doolittle, Racine Timothy O. Howe, Green Bay Representatives Halbert E. Paine, Milwaukee Benjamin F. Hopkins, Madison Amasa Cobb, Mineral Point Charles A. Eldridge, Fond du Lac Philetus Sawyer, Oshkosh Cadwallader C. Washburn, La Crosse

444

A. Drafting, doc. 2

Mr. MORTON. Let that resolution be read at length. Mr. SUMNER. Simply the amendment. The Secretary read the amendment proposed to be submitted to the State Legislatures as follows:

1 US Senate, Exclusion of Georgia Senator Joshua Hill, Proposed Suffrage Amendment

Article —. No State shall deny the right of suffrage or abridge the same to any male citizens of the United States twenty-­one years of age and upwards, except for participation in rebellion or other crime, and excepting also Indians not taxed; but any State may exact of such citizen a specific term of residence as a condition of voting therein, the condition being the same for all classes.

December 7, 1868*

Mr. SHERMAN. I present the credentials of Hon. Joshua Hill as a Senator from the State of Georgia. I ask that they may be read and the oath administered. ... Mr. DRAKE. Mr. President, I move that the credentials of the Senator-­elect from Georgia be laid upon the table for the present, until the committees of the Senate are organized. ... I state now that I do not think that the Senator-­elect from Georgia should be sworn in and allowed to take his seat in the Senate at this time. A very grave question comes up in connection with the reconstruction of the government of the State of Georgia, a question which in my opinion the Senate of the United States is bound to take notice of, bound to investigate, bound to pass upon. If I understand the position of matters correctly, after a loyal Legislature had been elected in that State under the reconstruction act of Congress, the white men of the Legislature combined and expelled from their seats all the colored members of the Legislature, thereby placing that body under rebel control. If this be true, then I claim that we should not recognize the reconstruction of Georgia as complete. Therefore, sir, I move that the credentials of the Senator-­elect from Georgia be referred to the Committee on the Judiciary. ... Mr. CRAGIN asked, and by unanimous consent obtained, leave to introduce a joint resolution (S.R. No. 179)† proposing an amendment to the Constitution of the United States; which was read twice by its title. * Cong. Globe, 40th Cong., 3rd Sess., 2 (Dec. 7, 1868). [Congress ultimately voted to reverse its decision to readmit Georgia and, instead, reinstated military oversight of the state. See this volume, 2B, doc. 25. —Ed.] † [Referred to the Judiciary Committee. See Cong. Globe, 40th Cong., 3rd Sess., 2, 38 (Dec. 7, 1868). —Ed.]

The joint resolution was ordered to be printed. Mr. POMEROY asked, and by unanimous consent obtained, leave to introduce a joint resolution (S.R. No. 180) proposing an amendment to the Constitution of the United States; which was read twice by its title, and ordered to be printed. Mr. POMEROY. I ask to have the amendment read at length. The Secretary read as follows: Art. 15. The basis of suffrage in the United States shall be that of citizenship, and all native or naturalized citizens shall enjoy the same rights and privileges of the elective franchise; but each State shall determine by law the age of the citizen and the time of residence required for the exercise of the right of suffrage, which shall apply equally to all citizens, and also make all laws concerning the time, places, and manner of holding elections.

2 US House, George Boutwell (R-­MA), Proposed Suffrage Bill and Suffrage Amendment January 11, 1869‡

Mr. BOUTWELL. I now report from the Committee on the Judiciary joint resolution (H.R. No. 363) proposing an amendment to the Constitution of the United States 445

‡ Cong. Globe, 40th Cong., 3rd Sess., 285–86 (Jan. 11, 1869).

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and a bill (H.R. No. 1463) declaring who may vote for electors for President and Vice President and for Representatives in Congress, with substitutes for the same, which I move be printed and recommitted to the Committee on the Judiciary. The SPEAKER. The Chair would suggest to the gentleman that it would probably simplify the action of the House to have the substitutes reported as original measures. Mr. BOUT WELL. I accept the suggestion of the Chair, and report from the Committee on the Judiciary the joint resolution to which I have referred. The joint resolution (H.R. No. 402) proposing an amendment to the Constitution of the United States was read a first and second time. Mr. SPALDING. I ask that the joint resolution be read in full. The joint resolution was read, as follows:

3 US Senate, John B. Henderson (R-­MO), Proposed Suffrage and Office Holding Amendment January 23, 1869*

[T]he Senate, as in Committee of the Whole, proceeded to consider the joint resolution (S.R. No. 8) proposing an amendment to the Constitution of the United States.† The joint resolution, as originally introduced by Mr. Henderson, reads as follows: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid as part of the Constitution, namely:

Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be held as part of said Constitution, namely:

Article XV No State shall deny or abridge the right of its citizens to vote and hold office on account of race, color, or previous condition. The Committee on the Judiciary‡ proposed to strike out the words of the projected article, and to insert: The right of citizens of the United States to vote and hold office shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of servitude. The Congress by appropriate legislation, may enforce the provisions of this article.

Article —. Sec. 1. The right of any citizen of the United States to vote shall not be denied or abridged by the United States or any State by reason of the race, color, or previous condition of slavery of any citizen or class of citizens of the United States. Sec. 2. The Congress shall have power to enforce by proper legislation the provisions of this article.

Mr. BOUTWELL. I move that the joint resolution be printed and recommitted to the Committee on the Judiciary. The motion was agreed to.

The PRESIDENT pro tempore. The question is on the amendment proposed by the Committee on the Judiciary.

446

* Cong. Globe, 40th Cong., 3rd Sess., 542 (Jan. 23, 1869). † [The Judiciary Committee (per Stewart) reported back S.R. No. 8 “with an amendment” on January 15, 1869. See Cong. Globe, 40th Cong., 3rd Sess., 378 (Jan. 15, 1869). —Ed.] ‡ [The following were members of that session’s Senate Judiciary Committee: Trumbull (Chair), Stewart, Frelinghuysen, Edmunds, Conkling, Rice, and Hendricks. See Cong. Globe, 40th Cong., 3rd Sess., 37 (Dec. 9, 1868). —Ed.]

A. Drafting, doc. 4

Mr. WILLIAMS. I desire to move an amendment to that. Mr. TRUMBULL. I understood that when we voted to take up this resolution it was to fix a day for its consideration. I voted to take it up with that understanding. The Senator from Nevada said he wished to fix a day for its consideration. We cannot get through with it in the morning hour, of course. Mr. STEWART. I did not know that it was so understood. I intended to adopt the suggestion of the Senator from New York, but if any Senator voted to take up the resolution with that view and desires to have it postponed, of course I will make such a motion. I move that this joint resolution be postponed until Thursday next and made the special order for that day at one o’clock. Mr. SUMNER. On the question of postponement and making a special order for Thursday I desire to call the attention of the Senator who has this resolution in charge to the pending question now before the House of Representatives. It is understood that they are this very day acting on a similar proposition, and under their rules, with the previous question, it is supposed that within one or two days they will arrive at a result. Now, the question which I have to submit to my friend is whether it would not be better for us to act on the proposition that shall come to us from the House of Representatives? That, of course, will be advanced one stage further to the result which we are all trying to reach. Mr. STEWART. If that proposition should be passed in the other House to-­day, our committee will have time to look at it and have it before the Senate on Thursday, if this resolution be postponed until that day; ... Mr. DIXON. Before the vote is taken on the motion to postpone, perhaps this is a proper time to give notice of an amendment which I propose to offer when the subject shall be before the Senate, so that the Senate may have time to consider it. ... Now, sir, this proposal of an amendment to the Constitution of the United States provides for its ratification by the Legislatures of the States, instead of by conventions; and that has been the usual mode, and I am not sure but that it has been the uniform mode of proposing amendments to the Constitution when they have been proposed by Congress. At any rate it has been the mode in recent times. Now, sir, there are reasons, and it seems to me very strong reasons, existing at this time why this proposition, if submitted, should be submitted to con-

ventions and ratified by conventions of the States, instead of by the Legislatures. ... [T]here are many existing Legislatures in various States of the Union to which bodies it is proposed to submit a proposition of this kind, where the people to this day have never for a single moment considered it. . . . That is a reason why at least the body to ratify should be a body chosen subsequently to this period. ... The PRESIDENT, pro tempore. The question is on postponing the further consideration of the joint resolution until Thursday next, and making it the special order for one o’clock on that day. ... The question being taken by yeas and nays, resulted—yeas 37, nays 11; ... So (two-­thirds voting affirmatively) the joint resolution was made the special order for Thursday next at one o’clock.

4 US House, George Boutwell, Proposed Suffrage Bill and Suffrage Amendment January 23, 1869*

The SPEAKER. The regular order is the motion of the gentleman from Massachusetts, [Mr. Boutwell,] to reconsider the vote by which the bill (H.R. No. 1667) to secure equal privileges and immunities to citizens of the United States, and to enforce the provisions of article fourteen of the amendments to the Constitution, and the resolution (H.R. No. 402) proposing an amendment to the Constitution of the United States, were recommitted to the Committee on the Judiciary. The gentleman from Massachusetts now calls up that motion, and is entitled to the floor. Mr. BOUTWELL. ... This measure, or these two measures, which have been reported together by the Judiciary Committee, are the last as far as I can foresee of a series of great mea447

* Cong. Globe, 40th Cong., 3rd Sess., 555–61 (Jan. 23, 1869).

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sures growing out of the rebellion, and necessary for the reorganization and pacification of the country, with which the Republican party to a large extent, through their Representatives and Senators in the Thirty-­Eighth, Thirty-­ Ninth, and Fortieth Congresses, has been charged. I say that this measure, as far as I can foresee, is the last of those great measures, and for this reason: if we secure to all the people of the country, without distinction of race or color, the privilege of the elective franchise, we have then established upon the broadest possible basis of republican equality the institutions of the country, both state and national. I am persuaded, by my experience upon those other questions and by the circumstances in which we are now placed, that it is impossible, whatever may be the desire of individual members of the House, whatever may be the wishes, or the hopes, or the prejudices of any portions of the people of the country, for us to escape this issue as a Congress and as a party. I shall speak to-­day with great freedom upon the responsibility of the Republican party to the country. I know it is not customary in a legislative assembly to present measures in what is called a party aspect, and I will therefore state to the House very briefly the reasons for the course I now pursue. Those reasons are largely based on the declaration that the Republican party stands in a relation to the country and to certain great questions and interests differently from any other party that has existed since the revolutionary era. During all previous time since the close of the revolutionary war parties have divided upon questions of administration, upon a difference of ideas as to what the public policy of the country should be. During the revolutionary war the differences between the Whig party and the Tory party were more comprehensive and fundamental. One party maintained the right of the Colonies to a separate and independent existence as a nation, and the other denied that right. We stand to-­day in an analogous position. The Democratic party of this country as a party organization, from the opening of the war to the present time, has been identified with all those ideas and measures which were calculated in their nature and in their operation to prevent the restoration of the Union by and through the agency of war for the suppression of the rebellion. It is a noticeable fact, which we do not to-­day sufficiently appreciate, that this nation is indebted to the Republican party for its existence. Therefore, I say that the Republican party organization is responsible, and it cannot es-

cape being responsible, for the consummation of those measures which are necessary to the perpetuity and to the peace of a nation which the Republican party has saved from overthrow. One of the measures reported by the committee is a bill to secure equal privileges and immunities to citizens of the United States, and to enforce the provisions of article fourteen of the amendment to the Constitution. The other is a joint resolution proposing an amendment to the Constitution of the United States. I am aware that there are persons who believe that all that is necessary to be done should be done by an act of Congress. There are others who are of opinion that the subject is not within the proper scope of legislative power, and that the only way to secure equality of suffrage to the people of this country, without distinction of race or color, is by an amendment to the Constitution. As I proceed I shall state the reasons why I am not willing to rely exclusively upon a law of Congress, and also the reasons why I think it not wise to submit a constitutional amendment without the aid of legislation. For the present I only desire to say that the committee, I believe—certainly in speaking for myself I am able to say it—invite examination and criticism in regard to the phraseology as well as to the objects proposed by the bill and by the constitutional amendment, it being our purpose to make the two measures as perfect as possible without regard to the paternity of the words employed. I shall direct my remarks generally to the provisions of the bill. The first section of the bill is in these words: 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 for 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.

The second and third sections are remedial and punitive, and are not necessary to be considered particularly in the discussion in which I am now engaged. The fourth section of this bill is framed in accordance with and by authority of the fourteenth amendment to the Constitution. It is in these words:

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That any person disqualified by section three of article fourteen of the amendments to the Constitu-

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tion of the United States, and from whom such disability shall not have been removed by act of Congress, who shall exercise the powers and duties of any office therein specified, shall be deemed guilty of a misdemeanor, and being convicted thereof shall be imprisoned and kept at hard labor for the term of two years; and an indictment for the same may be found at any time within ten years from the commission of the offense.

The purpose of this section is clear. There are in many of the States, those that have been reconstructed, those that are still under military government, as well as in the State of Kentucky, and perhaps in some other States that were not engaged in the rebellion, men who by the fourteenth article of amendment are disqualified from holding office. While, as I shall have occasion to say, we are not in our legislation to be governed by any feeling of resentment or malice, I still think it is due to the supreme and solemn character of the fourteenth amendment to the Constitution that Congress should enforce it against every man who by that provision is disqualified; and after having enforced it, we may then consider whether those men should be relieved of their disqualifications. But I hold it to have been a duty on the part of every man who professes now to be loyal to the Government of his country and who was holding office when the fourteenth amendment was adopted to resign his office, and thereby recognize the supremacy of the Constitution of the United States. It will be seen that the first section of this bill, which contains all the essential provisions with reference to the right of suffrage, limits the operation of the law to elections for President and Vice President, Representatives in Congress, and to members of the State Legislatures. It will also be seen, by the argument which I shall submit, based upon the Constitution of the United States, that the powers of Congress are probably broader than those set forth and asserted in the section of the bill which I have just read; but inasmuch as I believe all the objects which we are now seeking can be accomplished by the legislation here proposed, and the right of every citizen, whether black or white, native-­born or naturalized citizen, can be secured within a reasonable period of time, I am in favor of legislating so far only as may be necessary to secure those objects, not waiving, however, or in any way qualifying the assertion of the constitutional right in Congress to legislate upon the subject of the franchise, even in reference to the election of officers not named

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in this section of the bill. Those who are familiar with the debates which took place in the convention that framed the Constitution of the United States, and especially those who have read the debates that took place in the several State conventions upon the subject of ratifying the Constitution of the United States, must have been struck with the circumstance that all the friends of the Constitution asserted that there was power in the Constitution over the elective franchise to an extent which would enable the national Government to preserve its own existence independently of any action on the part of the States. If this Government be not a mere confederacy, held together by the merest thread, this must be true in the nature of the case. If the declaration in the preamble that we are a people has any meaning; if the Constitution which the people of the United States as one people established has any virtue or any force, any power to accomplish the purposes of a Government, then in this Government there must be constitutional means by which those charged with the administration can provide for its preservation and continuance. I am now dealing with general principles, and not with the text of the Constitution, to which I shall come ere long. Upon general principles there must be power in the national Government to provide whatever is necessary for its own preservation. But if the doctrine of those who maintain that the whole question of suffrage is vested in the States be true, then the States may refuse to choose electors; they may refuse to send members to this House; they may refuse to choose Senators by their Legislatures, and thus the Government of the United States would come to an end. There would be no President; there would be no Senate; there would be no House of Representatives, and the Government would consequently cease to exist. Sir, I know not in the darkest days of the Republic, when State rights were triumphant, I know not of any theory more destructive to national existence and public liberty more directly opposed to the nature of our Government than that which is now avowed. It is a remnant of ancient and false traditions not supported by the Constitution. I shall ask the House to consider what the Constitution does declare upon the subject of suffrage. It will be found that there is no word or phrase in the instrument which tolerates the idea that the existence of this great Government, continental in its dimensions, is at the mercy of the States through defects in our fundamental law. I come now to the provisions of the Constitution of

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the United States bearing upon the question of suffrage. I read first that provision on which I suppose much reliance is placed to sustain the doctrine that the power over the question of suffrage is, to a certain extent, vested absolutely in the States. The second section of the first article of the Constitution is in these words: “The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.”

It has been assumed, upon this section of the Constitution, that each State has the power absolutely to fix the qualifications of electors of the most numerous branch of the Legislature, and that therefore the power of Congress, if it existed at all in reference to the election of Representatives to Congress, was controlled by what the State might have done in reference to electors for members of the most numerous branch of its Legislature. But if gentlemen will look at the phraseology of this section as it stands they will see that it does not give power to the States in reference to the qualification of voters; that it does not give power to the United States in reference to the qualifications of voters; that it does not take power from the States, nor does it take power from the United States. It merely declares the fact that the voters for Representatives in Congress shall possess the qualifications of voters for members of the most numerous branch of the State Legislature. It is an injunction to the States if they have the power to prescribe the qualifications of voters; it is an injunction to the national Government if the national Government has that power. But there is no declaration in this section that either has the power, and certainly not that either has the power to the exclusion of the other. But the fourth section of the same article of the Constitution further provides that— “The times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

If the provision ended here, the theory which is maintained by gentlemen who deny the propositions contained in this bill would be well supported by the Constitution: “The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”

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The word “manner,” in this connection of course becomes important. All writers upon words have considered the power and scope of three words which have a great similarity of meaning, “mode,” “method,” and “manner;” and it is uniformly agreed that “manner” is the largest and most comprehensive of the three in its scope. Patrick Henry, of Virginia—and I shall read his declarations to the House—gave his view of the meaning of the word “manner,” which coincides with the view that I now take. It includes, as I maintain, everything relating to an election, from the qualification of the elector to the deposit of his ballot in the box. Here is set forth the power of the State. By the Constitution a State has original jurisdiction of the “times, places, and manner of holding elections for Senators and Representatives;” and it is from this provision of the Constitution that the State gets its power over the subject, so far as the Constitution of the United States is concerned. Either one or the other of two things is true: either these words as herein employed in their scope and meaning cover the entire subject of elections, from the qualifications of the voter to the deposit of his ballot in the box, or else, by necessary legal inference, the States have not the power which they have been in the habit of exercising; for if this be a qualified and limited grant or recognition of authority, then what is not granted or recognized they do not possess. But the history of the facts from the first, and the recognition by Congress of the powers of the States, go to the extent of conceding to them entire scope and original control of the whole matter of voting, including the qualifications of the voter, his registration, and the deposit of his ballot in the box. Mr. ELDRIDGE. Will the gentleman allow me to ask him a question? Mr. BOUTWELL. Yes, sir. Mr. ELDRIDGE. I wish to inquire of the gentleman from Massachusetts whether he means to affirm that the States possess no powers except those which are granted to them in and by the Constitution of the United States? Mr. BOUTWELL. I have not said that. Mr. ELDRIDGE. I supposed the rule to be entirely the other way; that the United States Government has no powers except those which have been granted to it. I understood the gentleman to declare that the States cannot possess the power which we claim they have of regulating the qualifications of voters, because the Constitution contains no grant of the power to them. That is the way in which I understood the gentleman.

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Mr. BOUT WELL. The gentleman misunderstands me. This is a declaration in the Constitution of the power of the States over the subject of voting. If it is a full and complete power over the whole subject it is what we maintain; but if it be not a full and complete power, then inasmuch as here is a declaration of the extent of the powers of the States, then the States are limited necessarily by the interpretation that is put upon this language; for if the Constitution of the United States says that States have certain powers, even though there be no negative in the declaration, they cannot go beyond the powers thus defined. Let me read what remains of this provision:

ment ought to contain in itself the means of its own preservation.” Again he says:

“Nothing can be more evident than that an exclusive power of regulating elections for the national Government, in the hands of the State Legislatures, would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it by neglecting to provide for the choice of persons to administer its affairs.”

In the several State conventions the ablest opponents of the Constitution based their objections to it upon the very ground that it gave to Congress the power which I am now advocating; and the defenders of the Constitution, so far as I have been able to ascertain, never denied the soundness of the theory on which those objections were based. Hear what Patrick Henry says. In the second volume of Elliott’s Debates, page 149, Patrick Henry, speaking of the first section of the fourth article, giving to Congress power over the time, place, and manner of choosing officers, says:

“But the Congress may at any time by law make”— Very broad language—

“or alter such regulations, except as to the place of choosing Senators.”

Now, sir, taking the language of the Constitution itself, divested of all theories and traditions concerning the meaning put upon it by State-­rights men, can anything be more clear than that the Congress of the United States has all the power which the States could exercise, except merely as to declaring where the Senators shall be chosen? Can there be any doubt that the powers granted to or recognized as existing in the States, whatever the extent of those powers may be, is the measure of the powers which Congress may exercise? And therefore, when a State-­rights man proves that by the Constitution of the United States a State has a right to decide who shall exercise the elective franchise, he has proved also that Congress may do the same thing under this provision of the Constitution which says that Congress may make any regulations it chooses relating to this subject or may alter such regulations as have been made by the States. This is no new doctrine. It was asserted, as I have already stated, in most of the conventions which ratified the Constitution of the United States. It was declared again and again in the Convention which framed the Constitution of the United States. Mr. Hamilton, in the Federalist, says, speaking of the fourth section of the first article: “I am greatly mistaken, notwithstanding, if there be any article in the whole plan more completely defensible than this. Its propriety rests upon the evidence of this plain proposition, that every Govern-

“According to the mode prescribed, Congress may tell you that they have a right to make the vote of one gentleman go as far as the votes of one hundred poor men.”

Can there be any broader declaration as to the power of Congress than that made by Patrick Henry in these words? Again, he continues: “The power over the manner admits of the most dangerous latitude. They may modify it as they please. They may regulate the number of votes by the quantity of property without involving any repugnancy to the Constitution.”

That was Patrick Henry’s objection to the Constitution and to this particular provision. Replying to that objection, Mr. Madison, in the same volume, while he does not admit in terms the doctrine laid down by Patrick Henry, does not deny it, but asserts that the existence of this power is absolutely necessary to the existence of the Government. He says:

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“With respect to the other point, it was thought that the regulation of the time, place, and manner of electing Representatives should be uniform throughout the continent. Some States might regu-

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late the elections on the principles of equality, and others might regulate them otherwise.”

might easily be dissolved; but if they be regulated properly by the State Legislatures, the congressional control will very probably never be exercised. The power appears to me satisfactory and as unlikely to be abused as any part of the Constitution.”

This is exactly the condition in which we are to-­day. “Some States,” says he, “may regulate the elections upon the principles of equality, and some States may regulate them otherwise.”

He says again, on page 305:

“This diversity would be obviously unjust. Elections are regulated now unequally in some States, particularly South Carolina, with respect to Charleston, which has a representation of thirty members.”

“With respect to the time, place, and manner of elections, I cannot think, notwithstanding the apprehensions of the honorable gentleman, that there is any danger, or, if abuse should take place, that there is not sufficient security. If all the people of the United States should be directed to go to elect in one place the members of the Government would be execrated for the infamous regulation. Many would go to trample them under foot for their conduct, and they would be succeeded by men who would remove it. They would not dare to meet the universal hatred and detestation of the people, and run the risk of the certain dreadful consequences. We must keep within the compass of human probability. If a possibility be the cause of objection we must object to every Government in America. But the honorable gentleman may say that better guards may be provided. Let us consider the objection. The power of regulating the time, place, and manner of elections must be vested somewhere. It could not be fixed in the Constitution without involving great inconveniences. They could then have no authority to adjust the regulations to the changes of circumstances. The question then is, whether it ought to be fixed unalterably in the State governments or subject to the control of the General Government. Is it not obvious that the General Government would be destroyed without this control?”

Thirty members were in the Legislature of South Carolina from the city of Charleston. What was the theory of Madison? That that provision of the Constitution enabled the Congress of the United States to go into South Carolina and decide that the city of Charleston should not have more members in the Legislature of South Carolina than she was entitled to on the principle of equality. Mr. Madison says: “Should the people of any State by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the General Government.”

Forty thousand citizens of the United States are deprived of the right of suffrage in the State of Kentucky. What is here suggested by Mr. Madison is what the committee propose to-­day. There are at least one hundred and fifty thousand citizens of this country who are denied the right of suffrage. Mr. Madison says that “it was judged proper that it should be remedied by the General Government.” He says further: “It was found impossible to fix the time, place, and manner of the election of Representatives in the Constitution. It was found necessary to leave the regulation of this, in the first place, to the State governments, as being best acquainted with the situation of the people, subject to the control of the General Government, in order to enable it to produce uniformity and prevent its own dissolution. And considering the State government and General Government as distinct bodies, acting in different and independent capacities for the people, it was thought the particular regulations should be submitted to the former and the general regulations to the latter. Were they exclusively under the control of the State governments the General Government

Mr. James Wilson, of Pennsylvania, was one of the ablest of the statesmen engaged in framing the Constitution of the United States. He was also a member of the convention of Pennsylvania that ratified the Constitution. In the latter body he gave his opinion upon the question now under debate. He said:

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“I hope, sir, that it was no crime to sow the seed of self preservation in the Federal Government. Without this clause it would not possess self-­preserving power. By this clause the times, places, and manner of holding elections shall be prescribed in each State by the Legislature thereof. I think it highly proper that the Federal Government should throw

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the exercise of this power into the hands of the State Legislatures, but not that it should be placed there entirely without control.”

The reporter of the Massachusetts debates makes this note: “Several other gentlemen went largely into the debate on the fourth section, which those in favor of it demonstrated to be necessary: first, as it may be used to correct a negligence in elections; secondly, as it will prevent the dissolution of the Government by designing and refractory States; thirdly, as it will operate as a check in favor of the people against any designs of the Federal Senate and their constituents, the State Legislatures, to deprive the people of their right of election; and fourthly, as it provides a remedy for the evil, should any State, by invasion or other cause, not have it in its power to appoint a place where the citizens thereof may meet to choose their Federal Representatives.”

Again he says, in support of the powers of Congress: “But there is an additional reason still that shows the necessity of this provisionary clause. The members of the Senate are elected by the State Legislatures. If those Legislatures possessed, uncontrolled, the power of prescribing the times, places, and manner of electing members of the House of Representatives, the members of one branch of the General Legislature would be the tenants at will of the electors of the other branch, and the General Government would lie prostrate at the mercy of the Legislatures of the several States.”

I do not intend to follow the discussion in all of the States. I have read what was said by Patrick Henry and Mr. Madison in the Virginia convention, and by Mr. Wilson in that of Pennsylvania. There were in Massachusetts two very distinguished men, Caleb Strong, from the western part of that State, and Theophilus Parsons, from Essex county, both distinguished persons, and the latter among the most eminent jurists of his time in this country, and, indeed, I think it not extravagant to say one of the most eminent jurists of modern times. He said, speaking of this very power:

Similar debates took place in North Carolina, New Hampshire, South Carolina, Rhode Island, and New York. The opponents of the Constitution objected to the fourth section of the first article upon the ground that it gave to Congress complete jurisdiction of this whole subject; and its friends never denied, so far as I can ascertain, that such was its scope and design. What happened next? Four States—New Hampshire, Massachusetts, Rhode Island, and New York—in ratifying the Constitution, demanded the amendment of the article relating to the powers of Congress over the subject of suffrage. I read the resolution adopted by Massa­chusetts:

“But a State Legislature, under the influence of their Senators, who would have their fullest confidence, or under the influence of ambitious or popular characters, or in times of popular commotion and when faction and party spirit ran high, would introduce such regulations as would render the rights of the people insecure and of little value. They might make an unequal and partial division of the States into districts for the election of Representatives, or they might even disqualify one third of the electors. Without these powers in Congress the people can have no remedy. But the fourth section provides a remedy, a controlling power, in a Legislature, composed of Senators and Representatives of twelve States, without the influence of our conventions and factions, who will hear impartially and preserve and restore to the people their equal and sacred rights.”

What was said by Caleb Strong is substantially the same as that uttered by Theophilus Parsons.

“That Congress do not exercise the powers vested in them by the fourth section of the first article, but in cases where a State shall neglect or refuse to make the regulations therein mentioned, or shall make regulations subversive of the rights of the people to a free and equal representation in Congress, agreeably to the Constitution.”

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In seven of the conventions, at least, this provision of the Constitution had been assailed by most eminent men. What was done? The First Congress submitted twelve amendments to the Constitution, and neither of them touches the question raised by the four States. What is the conclusion, then, of the whole matter upon the text of the original Constitution in reference to the question of suffrage. Why, first, that the power to make regulations concerning elections is vested in the States, and secondly, that the power of the General Government upon the subject of the franchise is just as comprehensive as the power of the States, and that we

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may make regulations, and that we may alter such regulations as the States have made. This view is supported, first by the necessary theory of the Government that it cannot exist independently of the States if this power in the General Government is denied. It is also supported by the debates in the Convention that framed the Constitution itself. It is supported by the debates in the State conventions which ratified the Constitution, where the issue was distinctly made upon that question between the friends of the Constitution and its opponents. The opponents of the Constitution charged that it contemplated precisely what we now say it means; the supporters of the Constitution did deny that it contemplated precisely what we say it means, and upon that ground they advocated the provision. The opponents of the provision in four of the States sought the submission of an amendment to the people giving a different and more limited construction to the article. The Congress of the United States refused to submit such an amendment. This is conclusive evidence that all the men who participated in framing this Government were of opinion that the power to regulate elections was in the States, subject to the supreme control of the General Government; and this without any inquiry into other provisions of the Constitution, which give us ample basis for all the legislation we now propose. I come next to the consideration of a provision of the Constitution on which I might safely rest for the exercise of this power, certainly as far as several States are concerned, even if all that is granted to Congress in the provisions relating to representation were wanting. I refer now to the provision of the Constitution by which the United States are to guaranty to each State a republican form of government. I read from the Federalist what is old and very well known. Mr. Hamilton says:

right of suffrage, it is consequently secured, because the same Constitution guaranties to every State in the Union a republican form of government. The right of suffrage is fundamental to republics.”

“In a confederacy founded upon republican principles and composed of republican members the superintending Government ought clearly to possess authority to defend the system against aristocratic and monarchical measures.”

I take it nobody will deny this. In the Pennsylvania convention Mr. Wilson treated the guarantee clause as justifying substantially what is now proposed. He says: “In this system it is declared that the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature. This being made the criterion of the

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It is not necessary for my purpose to go further. What is the nature of the difficulty with which we are now dealing? Is it a difficulty in harmony with republican institutions and a republican form of government, or is it a difficulty which is antagonistic to republican institutions? What is the essence of an aristocracy? How is it distinguished from a republic? The essence of an aristocracy is in this, that the Government is in certain families made hereditary to the exclusion of others. That is all there is of it. You may limit this aristocracy to twelve men, you may enlarge it to a hundred, to a thousand, or to ten thousand; but if limited, if certain persons are included and certain others excluded, not for themselves merely but for all their posterity, you have an aristocracy. There is, I submit to this House, no other possible definition of an aristocracy; there is no other possible honest distinction between an aristocratic and a republican form of government. Mr. NIBLACK. I desire to ask the gentleman this question: will not the position which he assumes requires us, in order to make a State government republican in form, to confer suffrage also on females to the same extent that we do upon males? Mr. BOUT WELL. Well, Mr. Speaker, I have myself been rather broad and generous in times past in maintaining the right of people to vote. I see that there is a party coming which promises to go very far in advance of myself, with more rapid strides than I have been able to take. I am willing, for one, that the gentleman from Indiana [Mr. Niblack] for the present should maintain the doctrine which he suggests in the question he puts to me, because I suppose it carries with it as an incident the result which I seek by this bill. If he will go with me in granting suffrage to all male citizens of this country twenty-­one years of age, without regard to race or color, I will listen most attentively to any argument he shall make here, or anywhere else within my reach, in favor of the right of women to vote. Mr. ELDRIDGE. The question is, will you vote for it? We are doing precisely the same thing for you—­ listening to your argument; but we do not propose to go with you on this question, and we do not expect you will go with us on the other question. Mr. BOUTWELL. I was proceeding to consider the

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distinction between an aristocracy and a republic. I say without hesitation that none of those States in which men are denied the elective franchise for themselves and for all their posterity are republican. They are aristocracies more or less offensive to republican institutions and to republican government, and inasmuch as by the Constitution the United States has power, and it is made its duty to guaranty a republican form of government to each State, if upon observation we find, as I think we do find in Delaware, in Kentucky, in Maryland, in Ohio, and in Pennsylvania, that the governments are not republican, it becomes our duty to exercise the power vested in us by the Constitution and make those governments republican by law. Mr. JONES, of Kentucky. I would like to ask the gentleman a question just here. I would ask if he holds that the Constitution of the United States prohibits any State from regulating the right of suffrage? And if so, I ask the gentleman how he construes the tenth amendment to the Constitution of the United States, which, I believe, was suggested by his own State of Massachusetts? I think when Massachusetts met in State convention to ratify the Constitution of the United States she instructed her delegates not to cease their efforts in the Federal Convention until they had obtained that amendment, which I will read:

Mr. BOUTWELL. There is a power recognized in the States by the fourth section of the first article, and there is a power in the same section granted to the General Government concerning the matter of elections, and the tenth amendment to the Constitution, to which the gentleman refers, does not touch this case at all. The power given to the States to regulate the time, places, and manner of holding elections is a specified and distinct power, and it is not disturbed by the tenth amendment. The power given to Congress in the same article to alter those State regulations is a specific power also, and that is not touched by the tenth amendment to the Constitution. I leave now that portion of my argument based upon the guarantee-­clause, and proceed to the consideration of the fourteenth amendment to the Constitution of the United States. If there were any doubt remaining in the mind of any person as to the power of Congress over this whole subject, as derived from the three provisions of the original text of the Constitution to which I have referred, I believe that every doubt must disappear upon an analysis of the fourteenth amendment. The first clause of the first section is in these words: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the States wherein they reside.”

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.”

Mr. BOUTWELL. I must claim the floor. Mr. JONES, of Kentucky. I should be very glad to hear the gentleman answer my question. Mr. ELDRIDGE. We will give the gentleman further time to answer it. I will move that the House give him further time. Mr. BOUTWELL. Well, I will answer the question. Mr. JONES, of Kentucky. If the power is not prohibited by the Constitution to a State, then it exists in the State. Mr. BOUT WELL. I have already argued that point upon the provision of the Constitution which gives to the States power over the time, places, and manner of holding elections. I cannot add anything to the statement I made upon that point. Mr. JONES, of Kentucky. My question is, does the Constitution prohibit the States from regulating the matter of suffrage?

Mark the words! Then comes the inhibition on the States: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

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By the first clause citizens of the United States are citizens of the States in which they reside. One of the immunities, then, and privileges of a citizen of the United States is that he shall be a citizen of the State where he resides, and the inhibition applies as well to the deprivation of rights derived directly from the States as to those rights derived directly from the United States Government. It is a comprehensive inhibition upon the States. They cannot deprive a citizen of the United States of any privilege or immunity which he may enjoy as a citizen of the United States; they cannot deprive him of any privilege or immunity which he may enjoy, or which any other citizen may enjoy as a citizen of the State in which he resides. This declaration in reference to the rights of citizens is for all or it is for nobody. We have

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certain privileges in this House, the two chief of which are, first, privilege from arrest in certain cases during the sessions and while traveling to and from our respective residences; and the other is, that we are not held answerable elsewhere for anything that we may say here. Mr. Speaker, consider what is covered by the word “privileged,” as used in the Constitution, not interpolated by me for the purpose of this debate. The rights to which I have referred are declared to be the privileges of members of the Senate and of the House of Representatives. They are distinctions by which, under the Constitution, we are recognized and set apart from other men. They are privileges, in the language of the lexicographers “peculiar benefits, advantages, immunities.” They are for all of us equally. We are characterized in the Constitution as “members.” We are as members endowed with certain privileges, and under that provision of the Constitution we are peers. What are the privileges under the Constitution of one member are the privileges of every other member. [Here the hammer fell.] The SPEAKER. The hour of the gentleman from Massachusetts [Mr. Boutwell] has expired. Mr. Knott obtained the floor; but yielded to Mr. ELDRIDGE, who said: I hope the time of the gentleman from Massachusetts will be extended. The SPEAKER. For how long? Mr. BOUTWELL. I cannot say how long. Mr. ELDRIDGE. I do not propose any limitation of the time. No objection was made. Mr. Boutwell resumed the floor. Mr. WARD. Will the gentleman yield to me for a question? Mr. BOUTWELL. Very well. Mr. WARD. I find by reference to the bill now before the House that it proposes to affect the question of suffrage not only in reference to the election of members of Congress, but also in reference to the election of the presidential electors. I have no difficulty in relation to members of Congress, for I believe that we possess that power. But I would ask the gentleman whether this bill is not in violation of that provision of the Constitution which prescribes that presidential electors shall be appointed in such manner as the Legislatures of the several States may respectively direct? Mr. BOUTWELL. So far as the features of this bill are

concerned I would prefer to defer their consideration for the present. I was saying, Mr. Speaker, when my time expired, that under the Constitution the privileges of members of this House are for us all or they are for none of us. When you have established the right of one member here to the benefit of these privileges you have established the right of all the members of the House to the same privileges. Now, what is the language of the section which I am considering? “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

I inquire how are you to distinguish between the various classes of persons in the several States? By the first clause of this section “all persons born or naturalized in the United States are citizens of the United States.” They may have been born in Africa, in Denmark, in Ireland; they may be white, they may be black; but by the Constitution they are citizens of the United States, and by that same Constitution it is declared that the privileges and immunities of citizens of the United States shall not be abridged by any State of this Union. I say again, therefore, that that provision of the Constitution is for all the people or it is for none of them. Under that Constitution we cannot select and say that a man born in this country shall be entitled to certain privileges as a citizen to which a man born elsewhere and naturalized shall not be entitled. We cannot say that a white citizens shall enjoy privileges which are denied to a black citizen or to a naturalized citizen, white or black. Next, is the right to vote one of the privileges of the citizen? I have here in my hand an authority from the State of Kentucky in which the characteristics of citizens are laid down by the supreme court of that State in most satisfactory and conclusive language, and I am willing to indorse it. The opinion was given upon questions arising in an action of tort brought by a colored woman named Amy against a man named Smith, who claimed her as his slave. The action was in 1822, and the circumstances of the case were these: the woman was born a slave in the State of Pennsylvania, where she remained until the abolition of slavery was decreed in that State. She then went to Virginia, as I assume, before the admission of Kentucky. The man Smith, who claimed to be her mas456

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ter, used some brutality toward her for which she commenced an action against him. The defense was that he was her master, that she was his slave. Her counsel maintained that, inasmuch as she was born in Pennsylvania, and was there when slavery was abolished in that State, she from the moment of the abolition of slavery there became not only free but a citizen of the United States; that having obtained in Pennsylvania the rights of a citizen, she was entitled to the benefit of that provision of the Constitution which says that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. How did the court meet this position? And this is the part of the opinion to which I wish to call the attention of the House. The court say:

vested with the freedom and privileges of a city. At an early period after the subversion of the Roman empire, when civilization had again begun to progress, the cities in every part of Europe, either by usurpation or concession from their sovereigns, obtained extraordinary privileges in addition to those which were common to the other subjects of their respective countries; and one who was invested with these extraordinary privileges, whether he was an inhabitant of the city or not, or whether he was born in it or not, was deemed a citizen. (See Ree’s Cyclopaedia, under the word citizen.) In England a citizen is not only entitled to all the local privileges of the city to which he belongs, but he has also the right of electing and being elected to Parliament, which is itself rather an extraordinary privilege, since it does not belong to every class of subjects. (Com. Dig. Parliament, D. 6, 4 Inst. 6.) “If we go back to Rome, whence the term citizen has its origin, we shall find in the illustrious period of her republic, that citizens were the highest class of subjects to whom the jus civitatis belonged, and that the jus civitatis conferred upon those who were in possession of it all rights and privileges, civil, political, and religious. (Butler’s Horae Juridice, 26, 27.) “When the term came to be applied to the inhabitants of a State, it necessarily carried with it the same signification with reference to the privileges of the State which had been implied by it with reference to the privileges of a city, when it was applied to the inhabitants of the city; and it is in this sense that the term citizen is believed to be generally, if not universally, understood in the United States. This indeed evidently appears to be the sense in which the term is used in the clause of the Constitution which is under consideration; for the terms ‘privileges and immunities,’ which are expressive of the object intended to be secured to the citizens of each State in every other, plainly import, according to the best usages of our language, something more than those ordinary rights of personal security and property which by the courtesy of all civilized nations are extended to the citizens or subjects of other countries while they reside among them. “No one can, therefore, in the correct sense of the term, be a citizen of a State who is not entitled,

“It was not, however, of that clause of the Constitution of the United States that the act of 1808 was contended by the plaintiff ’s counsel to be an infraction, but of the clause which provides that ‘the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States,’ first clause, second section, and fourth article. To entitle the plaintiff to the benefit of this clause it is obviously necessary that she should be a citizen of some one of the United States: and it is accordingly urged by her counsel, in support of her title to that character, that she was before her removal from Pennsylvania a citizen of that State, and that by her removal to Virginia she become a citizen of the latter. “Before we can determine whether she was a citizen or not of either of those States, it is necessary to ascertain what it is that constitutes a citizen. In England, birth in the country was alone sufficient to make any one a subject. Even a villain or a slave born within the king’s allegiance is, according to the principles of the common law, a subject; but it never can be admitted that he is a citizen. One may, no doubt, be a citizen by birth as well as a subject, but subject and citizen are evidently words of different import, and it indisputably requires something more to make a citizen than it does to make a subject. It is, in fact, not the place of a man’s birth, but the rights and privileges he may be entitled to enjoy which make him a citizen. “The term citizen is derived from the Latin word civis, and in its primary sense signifies one who is

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upon the terms prescribed by the institutions of the State, to all the rights and privileges conferred by those institutions upon the highest class of society. It is true that females and infants do not personally possess those rights and privileges in any State of the Union, but they are generally dependent upon adult males, through whom they enjoy the benefits of those rights and privileges; and it is a rule of common law, as well as of common sense, that females and infants should in this respect partake of the quality of those adult males who belong to the same class and condition in society, and of course they will or will not be citizens as the adult males of the same class are or are not so. “Nor do we mean to say that it is necessary even for an adult to be a male citizen that he should be in the actual enjoyment of all those rights and privileges which belong to a citizen. He may not only be in the actual enjoyment of those rights and privileges, but he may even not possess those qualifications of property, of age, or of residence which most of the States prescribe as requisites to the enjoyment of some of their highest privileges and immunities, and yet be a citizen. But to be a citizen it is necessary that he should be entitled to the enjoyment of those privileges and immunities upon the same terms upon which they are conferred upon other citizens, and unless he is so entitled he cannot, in the proper sense of the term, be a citizen.”

Here is a full and I believe a fair statement of what constitutes a citizen. He must be in the enjoyment of all the rights and privileges of any other citizen. Mr. NICHOLSON. Will the gentleman yield to me for a question? Mr. BOUTWELL. Yes, sir. Mr. NICHOLSON. I desire to inquire whether, when the fourteenth article of the amendments of the Constitution was under discussion in the Thirty-­Ninth Congress, the gentleman himself, and other members of his party who took part in that discussion, did not concede the distinction between civil and political rights and privileges; and whether they did not also concede that this fourteenth article would not confer political rights upon the class intended to be benefited? Mr. BOUT WELL. I have no recollection of anything of that sort, though it may be that some persons did make such a concession. I believe that gentlemen on the other side of the House generally claimed that

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it would confer such rights; and I cannot say but that some members on this side of the House may have disavowed that construction; but I was not one of them. Mr. ELDRIDGE. Will the gentleman allow me to inquire in this connection whether it was not conceded at that time that this fourteenth article recognized the existence on the part of the States of the right to regulate suffrage without the control of Congress, subject to the penalty that their representation in Congress might be curtailed if they should exclude from suffrage persons of a certain class? Mr. BOUTWELL. I will state my views on that point. Of course, I should not omit, in an argument upon this subject, the question suggested by the inquiry of the gentleman from Wisconsin, [Mr. Eldridge.] I say, then, considering the first section of the fourteenth article of the amendments, that that section runs entirely in harmony with the previous provision of the Constitution concerning the rights of citizens. It is in harmony with the declaration made by the supreme court of the State of Kentucky, in the opinion from which I have just read, that it is an essential quality of citizenship that the citizen should enjoy the highest privileges that appertain to citizenship in the State or city of which he is a citizen. Therefore, when you prove to me that one man in the State of Kentucky votes for President, or for a Representative in Congress, or for members of the State Legislature, you have proved that every man having like qualifications of education or property has the same right. If you deny it to him you deny that to which by the Constitution he is entitled: the enjoyment of equal privileges and immunities as a citizen of the United States, and as a citizen of Kentucky in the State of Kentucky. Then, sir, by the fifth section of the fourteenth article, Congress has power to enforce by appropriate legislation the provisions of the article. Does anybody doubt— in the presence of this provision of the Constitution, in view of the unlimited power under the fourteenth article to legislate so as to secure to citizens of the United States the privileges and immunities of citizens of any one of the States—does anybody doubt our duty? Mr. BECK. I desire to ask, if by the first section of the fourteenth amendment it was intended to prevent the States from determining who should and who should not vote, why, when it provides that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” it did not add, nor make discriminations among the citizens of the State itself in the exercise of the right of suffrage?

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Mr. BOUT WELL. There was the plainest reason in the world. It was not necessary. The article provides, as it stands, that there can be no discrimination by the States among the citizens of the United States, who are as well citizens of the several States and entitled equally to the privileges of citizens. I come now to the second section, upon which I know reliance will be placed by the opponents of the bill. It is there provided— “Sec. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding 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 Congress, the executive and 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.”

If gentlemen will consider these two sections together they will see how entirely in harmony they are with each other, and how wholly unsupported is the doctrine that there is in this second section any concession to a State to abridge or deny to a citizen, the right to vote. By the second section there is a political penalty for doing that which in the first section it is declared the State has no right to do. I read the first section: “Sec. 1. All persons born or naturalized 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.”

It is here provided that there shall be no abridgement of the privileges and immunities of citizens; and in the second section there is a penalty provided for a

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State that disregards the inhibition. We were then acting in the presence of the fact that many States of the Union were doing that which the first section declared they had no right to do. It was uncertain when Congress would exercise the power conferred by the fifth section of the fourteenth amendment, and in order that the States should not take advantage of their own wrong during the period while Congress might be inactive a penalty was provided. We knew that Kentucky, Maryland, and Delaware were doing what they were inhibited from doing by the first section of the article, and we said that they should suffer in representation for so doing. Power was given to Congress to remedy this evil, and that power Congress is now called upon to exercise. But, sir, consider the anomalous feature in our Government if the doctrine be successfully maintained that we cannot legislate on this subject. There are citizens in Kentucky and Maryland who, if the doctrine set forth by the opponents of this bill be a sound constitutional doctrine, are eligible to the office of President or Vice President of the United States, and yet who cannot vote for Representatives in Congress or even for a State, county, or town official. What is the qualification for the office of President? He must be a native citizen of the United States and thirty-­five years of age. Nothing more. These are the only qualifications for the office of President. By the fourteenth amendment to the Constitution we have declared that all the black men in Maryland and other States shall be citizens of the United States. Certain State governments have for the present denied those people the right to vote, and yet one of them may be elected President of the United States and another Vice President. Is there such an anomaly in our Government? Are we prepared to admit its existence unless the Constitution imperatively requires it? The Constitution provides that any one twenty-­five years of age, who has been a citizen for seven years, may be elected a Representative upon this floor, and colored men, although denied the right of suffrage in their own States, may be elected to legislate for the whole country. Thus is the General Government put in an anomalous and inconsistent position. Mr. ELDRIDGE. The gentleman from Massachusetts has entirely ignored the question I put to him in regard to the fourteenth amendment to the Constitution. The question I desire to put is this: whether there is not in that amendment a distinct recognition of the existence of the power to regulate suffrage in the States themselves?

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Mr. BOUTWELL. Oh no; not the least. Mr. ELDRIDGE. Then I do not understand it. Mr. BOUTWELL. If the right to vote for certain officers be denied or abridged, then certain political consequences follow; but in the first section there is a distinct declaration that this cannot lawfully be done. We only recognized the existing facts. 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 contrary to the Constitution—the States should not have the benefit of their wrong doing. Mr. ELDRIDGE. In view of the gentleman’s position I ask him how it is possible that a State can disfranchise any citizen? Mr. BOUT WELL. I think they cannot properly or lawfully. Mr. ELDRIDGE. How can they ever cause their penalty to attach? How can they lessen their representation by any acts of their own? Mr. BOUT WELL. A Legislature may do a thing which as matter of fact they are capable of doing, but which, considered in the light of the Constitution they have no right to do; and while we may have the power by which we can correct that misdoing, still not being in a condition to put that power in force we say meanwhile you shall not take advantage of your own wrong-­doing. This bill, then, is defensible, first on the original text of the Constitution, in which the subject of suffrage is considered; it is defensible upon the guarantee clause of the Constitution; it is defensible upon the fourteenth article of amendment to the Constitution; and it is defensible as the exercise of a necessary power in the Government. The power is essential to the existence and preservation of the Government itself, and was so regarded by the men who framed the Constitution of 1787. Leaving the argument I come now to the presentation of certain reasons why we should pass the bill, and also submit the proposed amendment to the Constitution to the Legislatures of the several States. Mr. PRUYN. I dislike to interrupt the gentleman, but as he has just stated that he has passed to another point, I would like to ask him, in view of his recent declaration, on what grounds the bill is defensible—whether he means that those grounds are cumulative or whether he would rest the whole on the original Constitution without the fourteenth article of amendment? Mr. BOUTWELL. What I mean to say is, if either one

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of the three positions which I have taken is sound then the bill is defensible; that is to say, if my construction of the original provisions of the Constitution concern‑ ing the power of the national Government over the time, place, and manner of holding elections be correct, or if the power given to us under the guarantee clause of the Constitution be what I assert it to be, or if we rely exclusively upon the fourteenth article of amendment, that either of these constitutes a sufficient justification for what we now propose to do. But when we have the cumulative power—if it be possible to conceive of an accumulation of power in the Constitution—when we have the cumulative power of those three great provisions added to the supreme necessity of the case that the national Government should have the right to exercise those powers necessary for its own existence, I hold that there remains no longer a constitutional or logical reason why we should hesitate to act. Mr. PRUYN. The statement is not quite satisfactory. Mr. SHELLABARGER. Before the gentleman proceeds to the consideration of the other matter I desire to have the benefit of his views upon a difficulty that occurs to my mind in his argument; not because I antagonize with the views he has presented, but simply that I may have the benefit of his views touching that difficulty. I understood the first proposition of the gentleman’s argument to be substantially this: that if the Constitution had reposed in the States the unlimited power to regulate the matter of voting for Federal officers it would involve this mischief, to wit: that thereby the power would be placed in the States to withhold from the Government the election of Federal officers at all, and that that mischief might be fatal to the Government itself. Am I right in that statement? Mr. BOUTWELL. Yes, sir. Mr. SHELLABARGER. Then the gentleman in passing to what is called the guarantee clause of the Constitution as the third point to be discussed, maintains that the clause operates as a limitation upon the power of that States to prohibit them from creating what the gentleman calls an aristocracy; in other words, prohibits them from confining the right to vote to such a number of people as that it would not be a republic. Now, the question that I wish to ask, and the difficulty in my mind that I wish the gentleman to remove is this, whether his last proposition does not destroy his first one, and whether, taking the two together, there is not found in the Constitution, in the guarantee clause, that very check upon the reduction of the representative

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franchise to such an extent as in his first proposition, he says, would or might overthrow the Government. Mr. BOUT WELL. I have no difficulty in my own mind upon that point. The provision in the Constitution in the first article referred to relates exclusively to the subject of suffrage, and the second of the provisions which I have read, as I interpret it, gives to the General Government precisely that power over the subject of voting which the States themselves possess. When a difficulty arises in a State, relating solely to the matter of suffrage, we may legislate under and by virtue of these provisions of the Constitution and remedy that particular evil, but the provision in the Constitution in relation to the guarantee by the United States of a republican form of government to each State is a broader authority. It not only relates to the question of suffrage, including that, of course, but it also includes many other possible anti-­republican evils or difficulties in a State. As for example the very case which the Supreme Court in the Rhode Island controversy suggested, that a State might establish a military government. Suppose they did so, as was done in France, by universal suffrage, it would be none the less an anti-­republican proceeding, a military government antagonizing, superseding a republican government. We might not be able to reach it under the provisions of the first section of the Constitution relative to suffrage, and then we should be obliged to act under the great power vested in the United States to guaranty to each State a republican form of government. We could exert our power, political and military if necessary, to dispossess those people who through universal suffrage had taken military control of the State. Mr. SHELLABARGER. Still, Mr. Speaker, I fail to see how the difficulty is met by the proposition now suggested. If I understand what is now suggested, it is that the guarantee clause was meant to prevent more mischief or other mischief than the mere matter of the curtailment of the right of suffrage. Mr. BOUTWELL. But includes that. Mr. SHELLABARGER. And includes that too. But the difficulty still remains, I suppose, and I will repeat it; it is this: the first argument or proposition of the gentleman, which has exceeding force, taken by itself, is that if the power to regulate the matter of suffrage be left in the States unlimitedly, then he says the States have the power of the continued existence of the Government in their hands. Mr. BOUT WELL. I think I see more distinctly now what point the gentleman has in view.

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Mr. SHELLABARGER. My point is this: is not that difficulty in your construction of this clause met and overcome by that which you concede to be included in the other clause? Mr. BOUT WELL. I have no doubt about that; but then I can understand that in the work of framing machinery for a Government the Convention of 1787 could very properly have said: we will provide a special remedy for particular grievances or wrongs, to wit, we will give power of the General Government to make or alter any State regulation relating to the times, places, and manner of holding elections. The idea of investigating all the institutions of a State for the purpose of ascertaining whether its government is republican in form involves larger consequences than a mere inquiry as to whether the ballot is equally enjoyed by all the citizens of a State. They provided in the Constitution a special remedy for these particular difficulties, but in providing a larger remedy for other and greater difficulties they were in the nature of the case led to the use of language which included the subject of suffrage. But for the purposes of the particular inquiry in which we are now engaged, if the provision of the Constitution relating to the times, places, and manner of holding elections had been omitted and the guarantee clause included, we still should have had the necessary authority; or if the guarantee clause had been omitted and the provision relating to the times, places, and manner of holding elections had been included, we still should have constitutional power sufficient for the present exigency. If I have made myself clear upon this point I desire now to pass to the consideration of those reasons operating upon my mind in favor of the passage of a bill, and the submission by joint resolution, also, of an amendment to the Constitution of the United States. And I must speak very plainly, though my words may, as I anticipate they will, give opportunity for those who are opposed to this measure to indulge in criticism upon what I may say. Our object is to secure universal suffrage to all adult male citizens of this country. The power is in our hands, first, as a Congress, and secondly as a party responsible for what this Congress does. If we submit a constitutional amendment alone, we in a certain sense admit that the power for which I am now contending is wanting. More than that; there are but twenty-­five States to which we at the present time could look for the ratification of this amendment. We have then to secure three other States in support of the proposition. We are to enter upon that work with a certain amount of preju-

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dice against and traditionary opposition to negro suffrage. Sir, I doubt not that nine tenths of the Republican party of the country are in favor of manhood suffrage. One tenth of the party are not in favor of it, and they constitute the great obstacle in the way of perfecting this benign measure. For one, I am in favor of taking the responsibility of the position which we occupy. We are responsible for universal suffrage as one of the crown‑ ing measures of an administration of eight years’ duration, to be continued for four years by the judgment of the people already pronounced. The great majority of the people—and in this connection I will say that by “the people” I mean those who on the 3d of November last supported General Grant for the Presidency—the great majority of them expect of us the consummation of this plan. We have at this moment the right and the power on our side. Why, then, not submit a bill alone? Because there is no provision in the Constitution by which the United States is denied the power of abridging the right of citizens to vote. There is, in the fourteenth article of amendments to the Constitution, a limitation upon the power of the States in that respect, but none upon the power of the United States. The amendment which we propose secures the people against any abridgment of their electoral power, either by the United States or by the States. In that alone there is sufficient reason to justify the amendment. In the next place, although I am myself persuaded of the existence of the power, and that it covers all State officers, still a different argument may be made against the proposition to legislate in reference to State officers from that which can be made against the proposition contained in this bill. Exercising the power which we possess, we provide that members of the State Legislatures shall be elected by all the adult male citizens in the several States. Mr. BINGHAM. Will the gentleman yield to me at this point for a moment? Mr. BOUTWELL. Certainly. Mr. BINGHAM. If I have heard the gentleman aright, in the progress of his remarks he has said repeatedly that the drift of this proposition was to secure political power to the male adult citizens of the United States. Now, I would ask the gentleman if the proposed amendment as printed contains any such provision at all? Do I understand the gentleman aright as saying that the object is to secure the political power in the several States

of this Union to the adult male citizens of the United States? Mr. BOUTWELL. That is the purpose of the amendment. Mr. BINGHAM. Then I would call the attention of the gentleman to the fact that this joint resolution as printed does not relate to the adult male citizens of the United States. Mr. BOUTWELL. It does not speak of them as such. I do not desire now to discuss that particular provision of the proposed amendment. I will, however, listen at another time to any suggestion on that point the gentleman may desire to make, either in public or in private. Mr. BINGHAM. I hope I shall have the opportunity to move an amendment to this joint resolution, to improve its language. Mr. BOUTWELL. Opportunity will certainly be given for amendment, as we desire to perfect this proposition. If we rely exclusively upon a bill which when enacted is merely a law, and subject to congressional control and to all the vicissitudes of politics and changes of opinion, we cannot be assured of its fate in some future Congress. Therefore, if we have power to do what is contemplated in this bill, let us act. Having given to the colored people in several of the States the power to vote we have put into the politics of the country an element by which the amendment itself can be carried. I speak very plainly, because I have no processes in my own mind in reference to this or any other public measure which I am not at all times willing to disclose. There are one hundred and fifty thousand citizens of the United States who by this bill will be entitled to the elective franchise but who are now disfranchised—seventeen hundred in Connecticut, ten thousand in New York, five thousand in New Jersey, fourteen thousand in Pennsylvania, seven thousand in Ohio, twenty-­four thousand in Missouri, forty-­five thousand in Kentucky, four thousand in Delaware, thirty-­five thousand in Maryland—who will rally to the support of this constitutional amendment if by the law they are enfranchised. These men have by the Constitution and by the judgment of the people of this country been declared citizens and entitled to all the rights of citizens. Now, in this struggle for the establishment of manhood suffrage in the country are we to decline the services of one hundred and fifty thousand men who are ready to do battle for us at the ballot-­box in favor of human rights; not of their own rights merely, but of the rights of all men on this continent? 462

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Sir, there can be no safety while we continue the wrong. If one hundred and fifty thousand black men may be disfranchised in ten States of this Union, if hundreds or thousands of naturalized citizens may be disfranchised in Rhode Island, where is the security? The foreigners naturalized in this country have acted under an opinion or impulse or prejudice against enfranchising the negroes; but when they see that their own class may be disfranchised, what security have they better than the negro who in Maryland is disfranchised? Some day or another the foreigners may desire to settle in South Carolina. South Carolina has a majority of black people. Suppose they disfranchise the natives of Ireland, or Germany, or the Scandinavian States. In view of such a contingency will the foreign citizens hesitate in this crisis when they have the power to settle this great question of human rights, not for negroes merely, but for white men? To white men born in this country, to white men born in other countries and coming here, as well as to negroes, there is no security while this great wrong continues. If we fail to act, and if, sir, there be a day of retribution for our omission to do our duty, as there has been a day of retribution for those men who omitted to do their duty upon another great question involving public crime, there can be no defense for us. Mr. WELKER. I desire to inquire whether there is anything in this bill that will prevent any of the States from requiring of voters a property or an educational qualification? Mr. BOUTWELL. I do not suppose there is. Mr. WELKER. Then the States may, under this bill, require such a qualification? Mr. BOUTWELL. I suppose they may. Mr. Speaker, there is a special duty which we owe to these black people. There is a special duty which we owe to the white people of the South. To day the blacks in the South are laboring under special disadvantages due to the circumstance that in Ohio and in other States of the North their kindred are not allowed to vote. When we shall have established universal manhood suffrage for the whole country we shall have given the black people in the South a position in the affairs of their respective States which they cannot command while their race is the subject of an unjust discrimination in other States of the Union. This question goes home as well to the white people of the South. Many of this class have been before a committee of this House asking for the removal of their political disabilities. I, for one, am not influenced

by any resentment, by any malice, by any desire conceivable to myself, to delay for one moment their restoration to all the rights they formerly enjoyed. But, sir, I do not see how this House or this country can consent to relieve these men from their disabilities while those with whom they associate, and for whose conduct they are in some degree responsible, are oppressing our friends, the loyal men of the South. Whenever we do justice to the black man in the North we improve his position, his capacity to take care of himself in the South. I know very well, from personal interviews with conservative men of the South, that to-­ day they are influenced in their opposition to negro suffrage by the fact that negro suffrage is not established in the old free States of the Union. The measures before us are a part of the great work of harmonizing the country, of pacifying all classes, of reconciling all interests. Mr. Speaker, the Republican party must abide the judgment of posterity upon what it has done, but it must still move forward and consummate the great works it has undertaken. We need only courage, a fixed purpose to be just, with economy and honesty in administration. If to preserve our power in the country we are unjust we shall become timid. “Conscience doth make cowards of us all,” and, becoming timid, the people will abandon us. Justice, honesty, economy, power on one side; injustice, timidity, ruin on the other.

5 US House, Suffrage Amendment, Speech of Charles A. Eldridge (D-­WI), Debate January 27, 1869*

The SPEAKER. The next business in order is the consideration of the motion of the gentleman from Massachusetts, [Mr. Boutwell,] to reconsider the vote by which the bill (H.R. No. 1667) to secure equal privileges and immunities to citizens of the United States and enforce the provisions of article fourteen of the amendments to the Constitution, and the joint resolution (H.R. * Cong. Globe, 40th Cong., 3rd Sess., 638–58 (Jan. 27, 1869).

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No. 402) proposing an amendment to the Constitution of the United States, were recommitted to the Committee on the Judiciary. On this question the gentleman from Illinois [Mr. Cullom] is entitled to the floor. Mr. CULLOM. Mr. Speaker, I appreciate as much as any other gentleman the importance of the public business before the House; and if any arrangement can be adopted by which this subject can also be postponed it will suit me perfectly well. I shall not make any motion with that view; but I yield to the chairman of the Judiciary Committee [Mr. Boutwell] that he may indicate his wish in regard to the matter. Mr. BOUTWELL. As the understanding of the House on last Monday was that when this question should again come up I would move or give way for a motion that its consideration be postponed till after the morning hour, I feel bound to submit that motion. Mr. BINGHAM. Before the question is put on that motion I desire to ask that an amendment which I design to offer as a substitute for the proposed constitutional amendment be ordered to be printed. There being no objection, the amendment was ordered to be printed. It is as follows:

except as punishment for treason or other crime of the grade of felony at common law, whereof the person shall have been duly convicted. But this article shall not affect persons now disfranchised for participation in rebellion, nor prevent the execution of such proper registration and naturalization laws as may be needed to protect the people in a just exercise of the elective franchise, nor to affect such qualifications of electors as to time of residence as may be imposed by law for a period of one year or less.

Mr. SHELL ABARGER. I ask to have printed an amendment which I desire to offer. There being no objection, the amendment was ordered to be printed. It is as follows: Insert in lieu of section one of the proposed new article of the Constitution the following: No State shall make or enforce any law which shall deny or abridge to any male citizen of the United States of the age of twenty-­one years or over, and who is of sound mind, an equal vote at all elections in the State in which he shall have such actual residence as shall be prescribed by law, except to such as have engaged or may hereafter engage in insurrection or rebellion against the United States, and to such as shall be duly convicted of treason, felony, or other infamous crime.

Insert in lieu of section one of the article proposed to be added to the Constitution the following: No State shall make or enforce any law which shall abridge or deny to any male citizen of the United States, of sound mind, and over twenty-­one years of age, the equal exercise of the elective franchise at all elections in the State wherein he shall have actually resided for a period of one year next preceding such election, except such of said citizens as shall hereafter engage in rebellion or insurrection, or who may have been or shall be duly convicted of treason or other crime of the grade of felony at common law.

Mr. WARD. I ask that an amendment which I propose to offer be also printed. There being no objection, the amendment was ordered to be printed. It is as follows: In lieu of section one of the article proposed to be added to the Constitution insert the following: No State shall make or enforce any law which shall deny to any male citizen of the United States over twenty-­one years of age, who has been such citizen for three months, the free exercise of the elective franchise in the State of his residence,

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Mr. WASHBURNE, of Illinois. I hope that after the morning hour the gentleman from Massachusetts [Mr. Boutwell] will permit his motion to reconsider to be postponed, that we may go into Committee of the Whole on the legislative appropriation bill. That bill ought to be passed as early as possible and sent to the Senate. Mr. BOUTWELL. If my present motion to postpone till after the morning hour should prevail, we can meanwhile consult as to what disposition shall be made of the subject after the expiration of the morning hour. Mr. MAYNARD. I give notice that whenever I may have the opportunity I shall offer as a substitute for the bill reported by the gentleman from Massachusetts [Mr. Boutwell] a bill of the same general purport introduced by me some time since, and which was then printed. Mr. BOUTWELL. I move that the further consideration of the motion to reconsider be postponed till after the morning hour, with the understanding that the gentleman from Illinois [Mr. Cullom] shall then be en-

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titled to the floor if the House should resume the consideration of this subject. The motion was agreed to. ... Mr. ELDRIDGE. Mr. Speaker, the decree may have been pronounced, the fiat may have gone forth commanding another invasion of the jurisdiction and rights of the States by the Federal authorities. Partisan statesmen, with wisdom superior to the framers of the Constitution, may probably have discovered another opportunity to increase and prolong their party power by another usurpation, by another encroachment of the Federal Government upon the proper rights of the States. If so, I have not the vanity to suppose that anything I can say will cause them to hesitate or consider. Party ends must be accomplished, party purposes must be carried out even though it should revolutionize the Government, overthrow the Constitution, and destroy the Republic. The time was when the suggestion of grave doubts of constitutional warrant would cause the advocates of a pending measure to hesitate, to reflect; when want of constitutional power would insure defeat; when even unquestioned powers which had been long unused were approached with reserve and exercised only after much deliberation and careful debate. Innovation and reform, however specious and desirable, were rejected at once and finally unless clearly sanctioned by constitutional authority. That no error might be committed, that the provisions of the Constitution might be comprehended in all the fullness of their import, resort was freely had to the opinions of its framers, the debates upon its consideration and adoption, and the contemporaneous history of the country and the times. It was no disparagement to the statesman or his argument that it was based upon the Constitution. It was the highest authority, both in its powers and limitations. It was truly considered not only the bond of our Union and the grant of all the powers that could be rightfully exercised by the Federal Government, but it was the palladium of American liberty. I will not stop now to point out the changes that have taken place in this respect, or to give the different views of modern Solons upon it. My friends on this side of the House will not soon forget the manifestations of scorn and contempt with which their arguments, based upon the Constitution, have been met by the majority. We shall remember long the charges of disloyalty to our country, of treason to our Government, and of sympa-

thy with its enemies, based only upon the fact that we would not join them in violating and disregarding its provisions. But, sir, I shall not be driven from the line of my duty; I shall not shrink from the like argument upon this or any other measure because of any such attacks from those who contemn and despise our Constitution of Government. I shall not attempt to analyze this bill or to examine its provisions in detail. The main feature and purpose of the bill are to take from the States the right to determine the qualification of voters. It provides— 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 for 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 null and void.

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Thus it is proposed by this bill to invade the jurisdiction of State authority and subject all the States of the Union to Federal control. This long-­conceded right of the States to determine for themselves who of their citizens shall exercise the right of suffrage within their respective jurisdictions is now for the first time to be taken away by act of Congress from all the States of this Union. It would seem that the exercise of this power by the States, almost unquestioned ever since and before the adoption of the Constitution, for more than eighty years, would cause gentlemen to hesitate before taking such a step. Is not the argument that the Federal Government, the people, and all the States have acquiesced so long in the exercise of this power by the several States almost conclusive? No two of the States have adopted provisions by which the same and all the same class or classes of their citizens vote. Some even have not confined the right to citizens at all. Aliens having declared their intentions only are in several of the States permitted to exercise the right of suffrage. There can scarcely be said to be any uniformity. The laws on the subject are as variant and diversified as the climate and the productions of the States themselves. And yet the right and power of the several States to determine this question of the qualification of voters can hardly be said to have been doubted. I do not ignore the fact that some one or more honorable gentlemen on this

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floor and in the other branch of Congress, together with some pseudo-­commentators upon the Constitution, blinded, as I think, by the heated passions of fanaticism and war, have professed to believe and have declared that Congress has the constitutional power necessary to pass this bill. But the conclusions of these gentleman are, I apprehend, more from the desire that a Congress composed of their friends should intervene and control the suffrage of the States in the interest of the party to which they are attached than from any settled conviction of constitutional warrant. Their views and opinions are confused, and they seem uncertain upon what provision of the Constitution to rest them. They base them more upon what they consider the necessity of the times, the wants of the nation, and the will of the people, as expressed through the party to which they adhere, than upon any express or implied grant of power to the Federal Government in and by the Constitution itself. The Constitution declares that—

shall be electors of members of the House of Representatives by its act of determining who shall be the electors of its most numerous legislative branch. This right of the State to determine the qualification of the electors of the members of its Legislature is older than the Constitution. The State derived the power from the people of the State before the Constitution was adopted. The power, therefore, remains in the State until it is taken away. There is nothing in the Constitution, nothing in the provision quoted certainly, granting the power to the Federal Government or prohibiting it to the State. In No. 52 of the Federalist, the authorship of which is claimed by both Hamilton and Madison, the following language is used with reference to this subject and the provision of the Constitution referred to: “To have reduced the different qualifications in the different States to one uniform rule would probably have been as dissatisfactory to some of the States as it would have been difficult to the Convention. The provision made by the Convention appears, therefore, to be the best that lay within their option. It must be satisfactory to every State, because it is conformable to the standard already established or which may be established by the State itself. It will be safe to the United States, because being fixed by the State constitutions it is not alterable by the State governments; and it cannot be feared that the people of the States will alter this part of their constitutions in such manner as to abridge the rights secured to them by the Federal Constitution.”

“The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.”—Constitution, art. 1, sec. 2, clause 1.

This, as I believe, is the only provision of the Constitution in any manner dictating or prescribing the qualifications of electors. “And the electors of each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.” Can any candid, fair-­minded man pretend that this provision is a grant of power to Congress to intervene and prescribe the qualification of electors of the most numerous branch of the State Legislature? Is it not all that Congress can do to insist or require that the same body or class or classes of persons who are allowed to vote or qualified as electors of the most numerous branch of the State Legislature shall be the electors of members of the House of Representatives? And are they not to be the same persons who are by the State laws declared qualified electors of the most numerous branch of the Legislature of the State? It seems to me nothing can be clearer. No language can make it more explicit. All is left to the State except only that the persons the State designates as its electors of the most numerous branch of its Legislature shall be the constitutional electors of the House of Representatives. The Constitution provides that the State may determine the persons who

It appears thus clearly by the opinion of these most distinguished statesmen, written in advocacy of the Constitution at a time when no passion or partisan prejudice influenced their judgment or clouded their understandings, that it was the intention of the framers to leave the qualification of electors as established or to be established by the State itself. And this provision they declare “was the best within the option of the Convention.” Judge Curtis, in his History of the Constitution, shows that what was then feared most was universal suffrage in its most unrestricted sense, or that foreigners might be admitted. And he uses the following language:

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“The adoption of this principle avoided the necessity of disfranchising any portion of the people of a State by a system of qualifications unknown to their laws. As the States were the best judges of the cir-

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cumstances and temper of their own people it was certainly best to conciliate them to the support of the new Constitution by this concession.”—Curtis’s History of the Constitution, vol. 2, p. 200.

and the places where the elections shall take place. This is clear and unmistakable. And is there any more room for doubt as to the import of the term “manner?” It seems to me not. It cannot relate to the qualification of the electors. This is left where it was at the adoption of the Constitution—with the States themselves. Manner must relate to the manner of conducting the election, whether by ballot or viva voce, to the mode or manner in which the elector shall signify his choice, shall express his will. This was the opinion of Justice Story, in his able and most exhaustive commentary on the Constitution, where we should almost suppose he had these bills under consideration. He says:

Further along, in the same connection, Mr. Curtis says: “Accordingly, although very strenuous efforts were made to introduce into the Constitution of the United States particular theories with regard to popular suffrage, some of the members being in favor of one restriction and some of another, the rule which referred the right in each State to its domestic law was sustained by a large majority of the Convention.”—Page 202.

“What would be said of a clause introduced into the national Constitution to regulate the State elections of the members of the State Legislatures? It would be deemed a most unwarrantable transfer of power, indicating a premeditated design to destroy the State governments. It would be deemed so flagrant a violation of principle as to require no comment.”—Story on the Constitution, sec. 819.

In this view all the commentators that I have been able to consult agree. It was a reference of the whole question to the domestic law—to the law of the State. The House of Representatives was to be composed of members chosen every two years by the people of the several States, the requisite qualifications of the electors of whom were expressly referred to the law established by the State itself. And this provision was sustained by a large majority of the Convention. The advocates of this bill must therefore look to some other provision of the Constitution for the power to pass it. There is no grant here to the Federal Government. It only authorizes the same electors to elect members of the House of Representatives who by the laws of the State are qualified electors of the most numerous branch of the State Legislature. This is what was intended, and all that can be claimed for it. Can authority for this bill be found under article one, section four, clause one of the Constitution?

Mr. Story seems to have adopted very nearly the language of Hamilton on the same subject in No. 59 of the Federalist, where he most emphatically condemns the idea even of introducing such an article into the Constitution. He says:

The times, places, and manner of holding the elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof. The times, places, and manner; “but the Congress may at any time make or alter such regulations.” What regulations may Congress make or alter? Clearly, the times, places, and manner, and nothing else: the times when

In those days no man would have hesitated to condemn it. The Constitution could never have been adopted if it had contained the grant of power to Congress to determine the qualification of voters for officers of the States. Such a work is left for these days of revolution and usurpation—to the mad fanatics who for par-

This bill proposes to regulate the State elections of members of the State Legislature; precisely what Story says would indicate an unmistakable design to destroy the State governments. Again Justice Story says: “Nor can it be said with correctness that Congress can in any way alter the rights or qualifications of voters.”—Ibid., section 820.

“The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”

“Suppose an article had been introduced into the Constitution empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of power and as a premeditated engine for the destruction of the State governments?”

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tisan ends would destroy our Republic of States. These authorities not only show that the power to regulate the qualification of electors is not granted to the Federal Government, but that it ought not to be possessed by it. Mr. Story says:

were undenied by its friends? The gentleman, however, is mistaken when he says that the friends of the Constitution did not deny that this power was conferred upon the United States Government, or that the friends did not deny this construction of those who were opposed to it. It was not only denied in the discussions in the Convention, but it was deliberately denied by Hamilton and Madison in the passage already quoted from the Federalist. What denial can be more explicit than this?

“It would be a most unwarrantable transfer of power, indicating a premeditated design to destroy the State government.” Mr. Hamilton calls it—

“The provision made by the Convention appears therefore to be the best that lay within their option. It must be satisfactory to every State, because it is conformable to the standard already established or which may be established by the State itself.”

“An unwarrantable transposition of power,” * * * * “a premeditated engine for the destruction of the State governments.”

Sir, for myself I most heartily indorse and believe this. This measure originated in hostility to the States, and most certainly menaces their existence. Every step in the direction of this bill and joint resolution is a step toward centralization and consolidation. It evinces a premeditated design upon the life of the States—a design to concentrate all the powers of government in the Federal head. And with this scheme consummated, and the others contemplated by the party in power, there will be very little left of the States; the rights, powers, and all the vast interest confided to them by the people will be crushed and destroyed under the advancing foot of empire. The States cannot long stand against the grasping and growing power of the Federal Government. Mr. Speaker, after the most careful examination and inquiry, I venture the assertion that no friend or advocate of the Constitution at the time of its adoption by the Convention and ratification by the States can be found to have claimed even that the power to prescribe the qualification of voters in the States was conferred upon the Federal Government. It is true that the opponents of the Constitution argued against it on the ground that it might be so construed; that Congress— some future Congress—might undertake to exercise the power of determining what persons should exercise the right of suffrage. The gentleman from Massachusetts [Mr. Boutwell] admits, as I understood him, that this was the charge made against the Constitution by its opponents. Patrick Henry was one of them. He made every argument which his great genius could suggest to stir up hostility to it. But who but the gentleman from Massachusetts would argue a constitutional grant of power against the plain letter of the instrument on the suggestions of those opposed to it and seeking to defeat its adoption merely because those suggestions

And again, (No. 60 of the Federalist,) Mr. Hamilton makes the most emphatic denial, and refers to another previous occasion when he had done do. He says:

“The truth is, that there is no method of securing to the rich the preference apprehended, but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national Government. Its authority would be expressly restricted to the regulation of the times, the places, and the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon another occasion, are defined and fixed in the Constitution, and are unalterable by the Legislature” [of the Union.]

By reference to the fifth volume of Eliot’s Debates it will be seen that the denials and statements in the debates were no less clear and definite. First by—

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“Mr. Wilson. This part of the report was well considered by the committee, and he did not think it could be changed for the better. It was difficult to form any uniform rule of qualifications for all the States. Unnecessary innovations, he thought, too, should be avoided. “Mr. Ellsworth thought the qualifications of the electors stood on the proper footing. The right of suffrage was a tender point, and strongly guarded by most of the State constitutions. The people will not readily subscribe to the national Constitution if it should subject them to be disfranchised. The States are the best judges of the circumstances and temper of their own people.

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“Mr. Madison. The right of suffrage is certainly one of the fundamental articles of republican government, and ought not to be left to be regulated by the Legislature” [of the Union.]

was thought necessary, all that is necessary. This being done, the persons qualified to vote for members of the most numerous branch of the State Legislature can and will meet and elect Representatives. It can make no difference that the electors are determined by the State. Electors qualified to elect and having the right to vote for members of the State Legislature exist, and must always exist so long as the State itself, as such, exists; and Congress can require them to meet at the time and place and cast their ballots in the manner it may see fit to designate. Mr. BOUTWELL. As the gentleman has appealed to me, he will permit me to say a word. He has declared that I was in error in affirming that the debates show no denial by the friends of the Constitution of the position taken by Patrick Henry. I desire to say that I was familiar with the quotations which the gentleman has cited, and which, taken by themselves, do certainly imply that the authors of those remarks did not understand the power for which I contend as being vested in the General Government; but I believe it will be found that in all those cases they were discussing the question of primary jurisdiction, not that of ultimate jurisdiction, for which I have contended. Mr. ELDRIDGE. I cannot yield further; the gentleman has already occupied a couple of hours on this question. But the gentleman from Massachusetts, my colleague on the committee, made one other argument which I cannot fail to notice. He claimed, as I understood him, that the power of Congress to make or alter such regulations as the State might prescribe, was coextensive with the power granted to the State, and that if the Congress could not regulate the qualifications of electors the States did not possess the power to prescribe them. This is a fundamental error—I had almost said blunder. It is basing the argument upon the most fatal heresy of these times—the heresy out of which the evils have grown that threaten the very life of the Republic of States. It reverses the entire order and system of our Government. The gentleman must have forgotten that the Federal Government is a Government of delegated powers—

Mr. George Nicholas, in his opening speech in the Virginia convention, (vol. 3 Eliot’s Debates, p. 42,) made these remarks, showing his construction of it: “As the qualifications of electors are different in the different States, no particular qualifications, uniform through the States, would have been politic, as it would have caused a great inequality in the electors, resulting from the situation and circumstances of the respective States. Uniformity of qualifications would greatly affect the yeomany in the States, as it would either exclude from this inherent right some who are entitled to it by the laws of some States at present, or be extended so universally as to defeat the admirable end of the institution of ­representation.”

In view of these emphatic and distinct avowals of the members of the Convention, how is it possible for the honorable gentleman from Massachusetts to claim that the construction put upon the Constitution by Patrick Henry and others who opposed it was not denied? And will gentleman still contend that the power exists in the Federal Government to regulate the qualification of electors in the States by the silence and acquiescence of the friends of the Constitution? The passage quoted from the debates and attributed to Mr. Madison can have very little weight when compared with his more deliberate and solemn written declarations. In my judgment, the evidence that the power to regulate the qualification of voters was left with the States, and that the Convention so intended from its language, from the declaration of the members, from the concurrent history, from all respectable commentators, is conclusive and overwhelming. Any other conclusion will do violence to the plain letter of the Constitution, and be a falsification of the history and debates upon it. The argument that if this power is with the States, and not subject to the ultimate control and regulation of the national Government, the States have it in their power to refuse to act upon the question, and thereby fail or neglect to send Representatives to Congress and thus destroy the Government, has very little force. Congress having the power to regulate the time, place, and manner of holding the elections, has all the power that

“That the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.”—Tenth Amendment of Constitution.

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The power to determine the qualifications of electors was, in the States, conferred, as we have before stated,

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by the people of the States, in most if not all of them imbedded in their constitutions when the Federal Constitution was formed and adopted. And that power has never been delegated to the General Government, and has not been prohibited to the States. It rests, therefore, where the people of the States placed it; in the States themselves. Sir, the powers and rights and liberties of the States and people do not come down from Congress or the Federal Government. There are some powers with which Congress has not been entrusted. Congress cannot determine just how much of liberty the people shall enjoy, just how they shall speak and move and breathe. All the powers of the Federal Government come up from the States and people, and it never had and never can have the rightful authority to exercise any power not granted in and by the Constitution. The exercise of any other is rank usurpation. I do not suppose it is seriously believed, or will be seriously contended, that the passage of this bill is warranted under the clause of the Constitution, “The United States shall guaranty to every State in this Union a republican form of government.” For Congress to intervene under the pretense that the States to which the bill is to apply have not now a republican form of government is to decide that there are no States now in the Union that have a republican form; for the bill applies alike to all the States. It is to decide that there never have been any States of this Union that have had a republican form. If there be any State that has a republican form, that State ought to be excepted from its operation. I am not aware of any one who has the hardihood to claim that the original States were not republican in form, and if they were, that settles the question of the power of Congress to interfere with them under this provision. The United States is not to guaranty any particular form of republican government. The States certainly have the right to select or choose for themselves the form, only so that it is republican. All are not by the Constitution required to be Massachusetts. Ohio’s form may at least suit her people better, and the United States has no power to dictate or guaranty the one or the other as a choice of particular republican forms. If it were claimed that no State is republican in form that does not allow all its citizens to vote, then we should have no republican States, because no one of the States does allows all its citizens to exercise this privilege. It will not be claimed, I suppose, that the State has not a republican form of government for the reason only that

it denies to its negro citizens what it also denies to our citizens’ wives and daughters. And if citizenship alone confers the right to vote, and a State is not republican that denies the right to an uneducated, half-­civilized colored man, how much more is the State not republican in form that denies the educated, cultivated, and refined woman the right. But, sir, citizenship does not necessarily carry with it the right to vote or hold office under our system. Nor can the denial to a citizen of the right to vote by a State destroy the republican form of its government. It was not so understood at the adoption of the Constitution, and has never been so claimed by any sane man. That the question of who shall exercise the right of suffrage is a delicate and most important question I admit. That the power of determining it ought to be dispassionately and wisely exercised is equally true. On its being so used depends greatly the welfare and happiness of the body-­politic and the permanence and endurance of our republican Government and institutions. But that this power rests in the States, and ought to rest there, I have no doubt. That the rights and liberties of the people are safer with this power in the control of the States than in the control of the Federal Government I certainly believe. And, sir, without meaning any disrespect to the gentleman from Massachusetts, [Mr. Boutwell,] I must say that it seems to me that his bill and resolution for the amendment of the Constitution, and his “cumulative remedies,” as he styled them, for the evils which exist in his judgment with reference to the persons who ought to exercise the right of suffrage, is a felo de se. If the power exists in the Federal Government to pass this bill, whether under any one or all the provisions referred to, then I admit that Congress has the right to control the whole question of suffrage and the qualification of electors for all officers, State and national. There can be no reason for its entering the State and determining the qualification of those who are to elect the officers named in the bill that will not apply to every officer of the State so far as the question of power is concerned. The electors of President and Vice President are not named in section four of the first article. The power claimed, therefore, under the word “manner” in this section can no more apply to them than to the Governor of the State or any other State officer. So that if it covers electors it may as well cover, and does as necessarily cover, all that is contemplated by the amendment proposed by the joint resolution. The amendment 470

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is, then, worse than useless. If it be necessary for the purpose it contemplates it must be a most pregnant admission that the bill is unconstitutional. I submit, however, without stopping to consider it at any length, that so far as the election of electors of President and Vice President is concerned, the bill is in direct violation of clause two, section one, article two of the Constitution, which provides:

such State, &c., the basis of representation therein shall be reduced,” &c.

“But when the right to vote at any election is denied or abridged in such State;” can there be any doubt or mistake that this language recognizes and expressly admits the power to be in the State to abridge or deny the right to some of its inhabitants to vote, subject only to have the basis of its representation reduced thereby? What other meaning can be attached to or construction put upon it? Was the gentleman candid when he denied it? It is too plain to admit of demonstration. It was understood to concede this power in the States at the time it was considered in this House, as every gentleman then on this floor must bear me witness. The gentleman says it was only a punitive provision, in case the States should violate its duty and be otherwise beyond the reach of Congress. This is an absurdity. I assert it was intended as a fundamental provision of this Government, and devised for the very purpose of compelling the States, wherein the power to determine the qualification of voters was conceded to rest, to grant suffrage to negroes. It was understood to be optional with the State to grant this right of suffrage to its negroes or have its representation in Congress proportionately diminished. Hon. Thaddeus Stevens, the late leader of the Republican party in this House, urged this view of the matter with peculiar emphasis. He thought the love of power and the desire for representation in the House of Representatives would be sufficient guarantee that the right of suffrage would not be long withheld from the colored men of the States. The power of the States to regulate and determine the qualification of voters was not questioned, except perhaps by one member on this floor, and no gentleman can truthfully deny the fact. And, sir, I assert that no man who voted for that amendment can consistently contend that the power to determine the qualifications of voters in the States does not exist in the State itself. And no lawyer can doubt that the amendment does distinctly recognize the power to be in the States. The gentleman argues that the State might refuse to obey a law of Congress regulating or prescribing the qualification of voters, and that this section was intended to punish the States for such refusal. How is this possible, I asked the gentleman, and he failed to answer. If Congress has the constitutional power to enact a law, and does so, declaring who shall vote in a State, any act of the State Legislature in conflict with it

“Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors,” &c.

If “manner” be the broad term contended for by the gentleman the whole subject belongs to the State, under this provision: “Each State shall appoint, in such manner as the Legislature thereof may direct,” &c.

And yet by this bill the whole power with reference to the electors is to be substantially taken away from the State Legislature. If “manner,” in the clause previously referred to, allows the United States to prescribe the qualification of electors, I submit the same construction should be given to it in this, and that therefore Congress has no power by this bill to take it away or prescribe qualifications different from those the State may determine. Sir, I do not think the gentleman from Massachusetts gave a proper consideration to the fourteenth amendment, as it is called. I will not consider the question of whether this amendment is a part of the Constitution; for myself I do not believe it is. The gentleman treated it as though he thought otherwise. I will remark, however, that if it was properly ratified and adopted I know of no palliation of the guilt of those gentlemen who have denied the representation of those States without whose action it never could have become and never can be considered as a part of the Constitution. The gentleman denied that there is in this amendment any recognition of the right of the States to determine the question of suffrage or who should exercise it. It seems to me nothing could be plainer. Section two provides “Representation shall be apportioned among the several States according to their respective numbers, &c. But when the right to vote at any election” * * * * “is denied to any of the male inhabitants of

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would be no law; it would be absolutely null and void. The act of Congress in pursuance of the Constitution is the supreme law, and must necessarily annul the act of the State. The question, therefore, recurs, how can the State incur the penalty? And the answer must be, it is impossible. The law of Congress executes itself by destroying and blotting out the act of the State and leaving the citizen free to exercise the right conferred upon him by the law of Congress. This is too plain for argument, and I will not pursue it. But right or wrong, constitutional or unconstitutional, whether for the best interest of the Republic or jeopardizing in an untried and doubtful experiment the happiness and prosperity of the whole people, the measure must be passed into a law. And the gentleman makes his final appeal upon party grounds—an appeal—I say it without intending disrespect toward him—unworthy of himself, unworthy the discussion of grave constitutional questions, and unworthy to be heeded by the honorable gentlemen of this House. It is an appeal not without influence upon the selfish and unprincipled partisan, upon the political gamester who postpones his country to this party. He tells us that the passage of this bill will add one hundred and fifty thousand voters to his party—seventeen hundred in Connecticut, ten thousand in New York, five thousand in New Jersey, fourteen thousand in Pennsylvania, seven thousand in Ohio, twenty-­four thousand in Missouri, forty-­five thousand in Kentucky, four thousand in Delaware, and thirty-­five thousand in Maryland, and he wishes to know if the service of these men who are ready to do battle with his party at the ballot-­box are to be declined. Was ever before such an appeal made by statesman to a great political party just coming victoriously out from a great political contest? Is it a confession that the course of the party is to be such in its administration that this vast accession of recruits will be necessary to preserve its power? Is it a confession in advance that it is to be discarded by those who fought and helped it to win its last great victory, and that its future success and power must depend upon the negro vote? The gentleman felt the reproach of his appeal in support of his bill, and boasted that he was a plain-­spoken, as he showed he was a bold man in braving criticism upon this part of his speech. I confess I thought him bold, not so much in daring the criticism of this side of the House, as in presuming so unworthy an appeal to gentlemen on that. Mr. Speaker, the gentleman from Massachusetts started out by telling us this is “the last of the series of

great measures growing out of the rebellion and necessary for the reorganization and pacification of the country” with which the Republican party has been charged. I think I express the universal sentiment of the people of the country when I say that I thank God and the Republican party that this is the last. But I would like to have gentlemen inform this House and the country how the party became charged with this measure and by what authority they undertake to “reorganize the country;” how the rebellion has invested the Republican party in Congress with the authority to go into the States of Pennsylvania and Ohio and the other northern States with its bills of reorganization? I expected it to do so; I did not suppose it would be satisfied with reorganizing the southern States. I am not disappointed, but where did the party obtain its power, its commission, its charge to reorganize the States that did not rebel? It was not by the election of General Grant, for he was elected upon no such platform. One of the planks of the platform laid down by the convention that nominated him laid down the same doctrine that I have endeavored to maintain— “That the question of suffrage in all the loyal States properly belongs to the people of those States.”*

The Republican party was charged, if charged at all, by this resolution to let the loyal States alone—to let the people of those States regulate the question of suffrage for themselves. The convention unanimously declared that “the question of suffrage in all the loyal States properly belongs to the people of those States,” and thereby virtually that Congress had nothing to do with it. What has caused the party to change front? If the question properly belonged to those States during the elections of last fall, what have the States done since to deprive themselves of the right? If the question did not properly belong to Congress then how has it become invested with the propriety now of disposing of it in those States? Mr. Speaker, if it be possible that the Republican party can commit itself to anything, it is in its support of the so-­called fourteenth amendment, and in and by its action in national convention, committed solemnly to the doctrine that the people of the several States have properly the right to control the question of suffrage in their respective States. And, in my judgment, the Republican members of this House cannot force this measure upon the country at this time without covering

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* [See “1868 Republican National Convention and Party Platform,” this volume, 1B, doc. 91. —Ed.]

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their party with another dishonor, without a shameful violation of party pledges and party faith. Was this declaration of principle the honest sentiment of the party at the time it was incorporated in the platform, or was the placing it there an intended premeditated fraud to induce support of the candidates and to be ignored and disregarded when the victory should be achieved? How many States would the party have carried upon the measure now being urged? With the provisions of this bill in the platform where would have been Pennsylvania and Ohio and Indiana? It alone would have defeated your candidates for President and Vice President with all their great personal popularity. The gentleman from Massachusetts affected some sympathy with foreigners, and intimated that this measure was in the interest of the white man as well as the black, and that it would be a protection of the Irishman, the German, and the Scandinavian. These crocodile tears for the white foreigner will be duly appreciated by us all, and especially by the foreigner, when the gentleman shall have made his speech and cast his vote on the bill being prepared by his party friends to prevent, obstruct, or embarrass naturalization. The gentleman seemed to deplore his inability to present the principles involved in these great measures except in what he called “a party aspect.” It is some satisfaction to know that gentlemen are not utterly insensible of the low plain upon which these schemes are urged and advocated. Party aspect, indeed! These measures have their origin and support in the most intense partyism. Party, party! It is the infernal spirit of party that has controlled, sunk, and degraded so much of the legislation of Congress during and since the war. It was the fell spirit of party against which the almost dying words of Washington warned his countrymen. Party! What crimes have not since that day been committed in its name and by its relentless demand! Party has kept the dissevered fragments of the Union asunder ever since the war ended. Insatiate party has destroyed the republican character of ten States of the Republic and established over them despotisms that would put to shame the most frightful and grinding despotisms of any age or any country. Party has persistently for the last four years sought to subvert or change the form of our government, both State and Federal. It is at the demand of party that Congress has assaulted the executive and judiciary, and endeavored to usurp the powers belonging to these coordinate Departments or force the President and the judges to bow down and do its bidding. It is at

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the demand of party and in its interest alone that power is sought to be taken from the intelligent and cultivated white man and given to the ignorant, uneducated, and servile negro. It is the inexorable demand of party that is bringing the white and black races in this country in fatal antagonism and conflict, which must end in the utter extermination of the weaker race or in the degradation of the other. It is party that is keeping alive the animosities, the malignant and bitter passions engendered by the war, and preventing that forgiveness, reconciliation, and harmony dictated and enjoined by the spirit of Christian charity. Mr. Speaker, I am consoled at my want of preparation and failure to discuss this measure fully and in all its bearings by the fact that there are able gentlemen on this side of the House who will present the objections to it more fully and ably than I could have hoped to. I wish this measure coming from the Judiciary Committee might have been presented and advocated by my distinguished colleague on the committee upon high legal and constitutional grounds only. I wish that party and party considerations might have been ignored in its discussion. The subject is of too much importance, the changes proposed in our system of government vastly too great and far-­reaching in their effects, to be carried upon party grounds or for party ends. Parties, at the longest, do not live long. They are changing and evanescent; they pass away and others take their places; they serve their purpose and are gone. It is doubtful if they do not more evil than good. Our Constitution we hope may live forever. Its blessings have been manifold and showered upon us without stint or measure. Let no partisan parricide lift his hand against it. “Conscience” should “make cowards” of you all. The ghost of the slain Constitution “will not down at your bidding.” Peace, reconciliation, unreserved submission and obedience to the written Constitution; liberty, prosperity, happiness, “on one side;” strife, malignity, party license regulated by no law, anarchy, despotism, “on the other.” ... Mr. KERR. Mr. Speaker, in my judgment, this measure has never been surpassed in importance by any enactments in our entire legislative history. In intrinsic interest, in far-­reaching consequences, if it become a law, it would be difficult to conceive a proposition more momentous. Besides, in reference to the fourteenth amendment of the Constitution, it is an initial measure, and for the first time makes it our imperative duty to

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consider that amendment, and before we make it the basis of legislation to determine, under the sanction of our oath to support the Constitution, what are its true intent and meaning. Mr. Speaker, I have come to its consideration with a profound desire to attain such conclusions as shall at once most truly “support” the instrument and preserve the liberties and promote the highest welfare of the people. Yet, on every material point, I find most of my conclusions to be precisely antipodal to those of the gentleman from Massachusetts, [Mr. Boutwell.] Our several reasons and arguments must answer for our different judgments. I only pray that they shall be fairly and dispassionately considered and weighed by all. I shall then cheerfully abide the result. The most important part of the bill, and that which presents the great questions of power contained in it, reads as follows in its title and first section:

tory in a more specific and authoritative form of what was law before. It gives no support, in my judgment, to the extraordinary propositions contained in this bill. It is manifestly intended only to remove all doubt, if any existed, upon the fact that nativity and naturalization confer, in the language of Justice Story, a general citizenship of the United States and give the country jurisdiction over them, and give rise to the correlative obligations of allegiance and protection; and also to declare all such persons citizens alike of the States wherein they reside. The latter citizenship must also be held to be of that same general character. It is not more specific or certain or better defined, and amounts in law to just what it did before this enactment. Ever since the organization of the Union, and just as much before as since this amendment, any citizen of the United States who voluntarily removed to and became a permanent resident of any State that instant, and by virtue of that act and fact, became also a citizen of that State. But such citizenship alone never gave a right to vote or hold office, and it does not now. There must be some added or acquired qualification under the provisions of the State constitution and laws, which can only be acquired after the residence begins, and generally results from its continuance for a prescribed period. Otherwise, and on the theory of the gentleman from Massachusetts, all such persons, the moment their State residence begins, become full-­fledged citizens with the right to vote and hold office. But the more important part of that section declares:

A bill to secure equal privileges and immunities to citizens of the United States and to enforce the provisions of article fourteen of the amendments to the Constitution. 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 for 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.

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

The title of the bill and the text of this section clearly indicate, and the gentleman’s argument declares, that this bill rests for support, in part at least, on the first paragraph of the first section of the fourteenth amendment. I read it:

This is a limitation on the powers of the States. It needs no legislation to enforce it. It is better enforced by itself, and judicially. But what do the important words “privileges or immunities” mean? They are historic, and have often received judicial and legislative definition and construction. They had their origin in the fourth article of the Articles of Confederation, which reads:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside.”

... As voting and holding office are not essential to citizenship, so the deprivation of either by law is not a deprivation of citizenship; no more so in the case of a negro than of a white woman or child. I therefore hold that the first paragraph in question is merely declara-

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“The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States—paupers, vagabonds, and fugitives from justice excepted—shall be entitled to all privileges and immunities of free citizens in the several States.”

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The purpose and intent of this provision are clear and free from ambiguity, and afford an infallible key to unlock the more mysterious meaning of section two, article four, of the Constitution, which was intended to perpetuate the provisions in the Articles of Confederation, and reads: “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”

In the draft of this section it is to be lamented that certainty and perspicuity of intention were sacrificed for the sake of brevity. The language of the fourteenth amendment seems to have been intended to give Congress the power to enforce the provisions of this section; but the expression “privileges or immunities of citizens of the United States” appears to be restrictive of the object and intent of the words in the section, “privileges and immunities of citizens in the several States.” But for the purposes of this argument, as that view is most favorable to the friends of this bill, I will assume that the two forms of expression are exact equivalents. I then proceed to inquire what do they mean? In their derivation and legally and judicially accepted signification they give no countenance to the assumptions of the friends of this bill. The word “privilege” is defined by Worcester to mean “an exemption or immunity from some general duty or burden; a right peculiar to some individual or body; a peculiar advantage or benefit.” And the descriptive word “peculiar” means “belonging to only one, not common to many.” The term “exemption” has an even more limited signification, being by the same great lexicographer defined to be “freedom or exemption from serving in an office or from performing duties required of others.” It is most erroneous to suppose that the words rights, privileges, and immunities are synonymous. They are not. The word rights is generic, embracing all that may be lawfully claimed, and it is affirmative, but the others are, in their most exact and legal definitions, both restrictive and negative. The gentleman from Massachusetts justly and logically maintains that whatever rights, privileges, and immunities attach to and inhere in the citizen or citizens of the United States must belong to all alike. They must belong equally to man and woman, to adult and infant, to sane and insane, to black and white. But this just and invulnerable position is most fatal to the claim that the right of suffrage is one of the constitu-

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ent elements of citizenship, because if it is it also must belong alike to all. But the truth is, and it is within the observation of all men, and is established by the uniform practice of every State in the Union, and is sustained by an unbroken line of judicial decisions, that no person ever did exercise the right of suffrage in virtue of the naked, unassisted fact of citizenship. But in every instance the right depends, and the franchise of suffrage is exercised, upon some additional fact and cumulative qualification prescribed by the laws of the State, which may as perfectly exist without as with citizenship, (Bates on Citizenship.) The word citizenship has not in any of its elements or meanings under the Federal Constitution, nor have the words “privileges and immunities,” in any of their just interpretations, anything to do with or any power to set aside or disregard any of the distinctions, requirements, or rights based upon domicile or residence in the respective States. Even the infamous and revolutionary measures of reconstruction in the South recognize and do not attempt to disregard this universal truth. But now and in this bill, and by the gentleman from Massachusetts, for the first time in our history, these fundamental truths are all to be ignored or reversed. This section does not require that the laws and usages of one State shall be permitted to prescribe qualifications for citizens to be aimed and exercised in other States in contravention to their local policy. (2 Kent, 71; 19 How. R., 405.) I understand its primary object to be to secure equal privileges and immunities to the citizens of each State while temporarily sojourning in any other State; and its secondary and only other purpose is to prevent any State from discriminating in its laws in favor of or against the citizens of any other State merely because they are the citizens of such other State, or, in other words, for mere sectional reasons. For example, Massachusetts cannot form any tacit or express alliance or friendship with Maine which shall require or justify Massachusetts in giving to the citizens of Maine who shall settle in Massachusetts any privileges and immunities it does not equally give to the same class of citizens from any other State. Our ancestors had formed a sisterhood of States, equal in dignity, rights, and powers, and they merely intended by this provision to prevent any combinations arising out of mutual interests or animosities between certain States from taking the form of legislative discriminations against the citizens of other States. Texas

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cannot, because it dislikes Yankees, withhold from the citizens of New England any privileges and immunities it accords to the citizens of the same class from Louisiana. But Texas can deny to the paupers, vagabonds, or fugitives from justice of New England privileges and immunities which it denies, on grounds of local public policy, to the same classes from other States, and which it denies on the same grounds to persons of the same classes within its own limits, although such persons in New England have been invested with greater rights. This interpretation is reasonable, practical, and free from the dangerous and centralizing tendencies of the one claimed in this bill. It is consistent with the full enjoyment by the States respectively of the sacred and natural right of local self-­government and self-­ protection. It will enable the States to protect the body-­ politic against the dangers and demoralizations which would inevitably result from the other theory. In this view I am fully sustained by that distinguished jurist whom I have before quoted. He says: “The article in the Constitution of the United States declaring that citizens of each State were entitled to all the privileges and immunities of citizens in the several States applies only to natural-­born or duly naturalized citizens; and if they remove from one State to another they are entitled to the privileges that persons of the same description are entitled to the privileges that persons of the same description are entitled to in the State to which the removal is made, and to none other. The privileges thus conferred are local, and necessarily territorial in their nature.” —2 Kent, 71. To the same effect is the opinion of Justice Story:

“The intention of this clause was to confer on them, if one may so say, a general citizenship, and to communicate all the privileges and immunities which the citizens of the same State would be entitled to under the like circumstances.”—Story’s Commentaries on the Constitution, sec. 1806.

Now, if my construction of this constitutional provision is incorrect, and the one claimed by the friends of this bill is correct, then it follows that aliens made citizens by the States are entitled to all the privileges of citizens in any other States to which they may remove, because they were citizens in the State they removed from. But the contrary is both the law and the practice throughout the Union. Such a citizen removing to an-

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other State is then entitled only to such privileges as are accorded by the laws of that State to persons of the same class. Directly pertinent to this inquiry also are the citations already made by me from Mr. Kent. Therefore, if negroes remove from Massachusetts, or coolies from California, to Ohio or Indiana they are entitled there to enjoy the same privileges and immunities which are accorded by those States respectively to negroes or coolies from any other State, “but to none other.” They cannot import into those States the laws of Massachusetts or California. The right to exclude them or to limit them in political rights and privileges is fundamental and necessary to the existence and safety of the State. It antedates all constitutions. It is original in the State. Next, hear the views of Justice Washington: “The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong of right to the citizens of all free Governments; and which have at all times been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended 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, or 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 the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added the elective franchise, as regulated and established by the laws or constitution

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and it declares that any person who takes office contrary to that section shall be held guilty of a misdemeanor, and on conviction shall be imprisoned at hard labor for two years. This penal section in the gentleman’s bill inspires in my mind emotions of disgust and horror. It carries my mind back to ages of barbarism, and recalls the truculent and merciless persecutions, proscriptions, and punishments inflicted by successful chiefs upon their subjugated enemies. It is unworthy of this age and would be an eternal shame to our country. Better instantly remove all disabilities from every ex-­rebel in the country. Practice mercy, not vengeance. Do justice without this indiscriminate cruelty. If you will not do these things, then at least leave the third section for the fourteenth amendment of the Constitution to execute itself by the sufficient aid of the Federal judiciary. It needs no more. Common humanity and decent justice forbid that you shall refuse this much.

of the State in which it is to be exercised.”—Corfield vs. Coryell, 4 Washington’s Circuit Court Reports, page 380.

The gentleman from Massachusetts cited at great length and indorsed the decision of the court of appeals of Kentucky in Amy vs. Smith, (Littell’s Reports.) I will waste but little time on that authority. In most of its reasoning it is in entire harmony with my views and the authorities I am using. So far as it is not, and especially in its attempt to define citizenship, it is not supported by a single respectable authority in the judicial records of the country. It has therefore no intrinsic value. But I give the gentleman, as a full offset to that case, the case of Abbott vs. Bayley, 6 Pick. R., p. 92, from the supreme court of his own State; and I read the material part of the decision in that case. The court says: “The privileges and immunities secured to the people of each State in every other State can be applied only in case of removal from one State into another. By such removal they become citizens of the adopted State without naturalization, and have a right to sue and be sued as citizens; and yet this privilege is qualified and not absolute, for they cannot enjoy the right of suffrage or of eligibility to office without such term of residence as shall be prescribed by the constitution and laws of the State into which they shall remove. They shall have the privileges and immunities of citizens; that is, they shall not be deemed aliens, but may take and hold real estate; and may, according to the laws of such State, eventually enjoy the full rights of citizenship without the necessity of being naturalized.”

... Now, let it be remembered that in all these authorities it is assumed that the privileges and immunities referred to as attainable in the States are required to be attained if at all according to the laws or constitutions of the States, and never in defiance of them. ... It may be that this bill did not have its origin in partisan motives, but I think very few candid observers will attribute it to any other or higher origin. The maintenance of power by the Republican party seems to be the chief aim of this bill. The fourth section of the bill purports to be designed to enforce the third section of the fourteenth amendment, which disqualifies certain persons to hold office,

6 US Senate, Suffrage and Office Holding Amendment January 28, 1869*

The PRESIDENT, pro tempore. The order of the day, the joint resolution (S.R. No. 8) proposing an amendment to the Constitution of the United States, is now before the Senate as in Committee of the Whole, and the pending question is on the amendment reported by the Committee on the Judiciary. Mr. STEWART. Mr. President, I do not propose to occupy the time of the Senate in discussing this great question at any length. It is the culmination of a contest which has lasted for thirty years. It is the logical result of the rebellion, of the abolition of slavery, and of the conflicts in this country during and before the war. Every person in the country has discussed it; it has been discussed in every local paper, by every local speaker; it has been discussed at the firesides; and now we are to place the grand result, I hope, in the Constitution of the United States. . . . This amendment is a declaration to make all men, without regard to race or color, equal before the law. 477

* Cong. Globe, 40th Cong., 3rd Sess., 668 (Jan. 28, 1869).

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... It must be done. It is the only measure that will really abolish slavery. It is the only guarantee against peon laws and against oppression. It is that guarantee which was put in the Constitution of the United States originally, the guarantee that each man shall have a right to protect his own liberty. It repudiates that arrogant, self-­ righteous assumption, that one man can be charged with the liberties and destinies of another. You may put this in the form of legislative enactment; you may empower Congress to legislate; you may empower the States to legislate, and they will agitate the question. Let it be made the immutable law of the land; let it be fixed; and then we shall have peace. ... The PRESIDING OFFICER, (Mr. Ferry in the chair.) The question is on the amendment reported by the Committee on the Judiciary, to strike out— No State shall deny or abridge the right of its citizens to vote and hold office on account of race, color, or previous condition. And in lieu thereof to insert:

The right of citizens of the United States to vote, and hold office shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of servitude. The amendment was agreed to.

7 US House, Suffrage Amendment, Debate on Suffrage Bill January 28, 1869*

Mr. BOUT WELL. Mr. Speaker, I wish to state to the House that I propose to demand to-­morrow the previous question upon the motion to reconsider the vote by which the joint resolution (H.R. No. 402) proposing an amendment to the Constitution of the United States was recommitted, leaving the bill upon the same subject where it now stands. * Cong. Globe, 40th Cong., 3rd Sess., 686–96 (Jan. 28, 1869).

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A Member. Where is that? Mr. BOUTWELL. The bill as well as the joint resolution has been recommitted, and a motion is pending to reconsider the vote recommitting it. I am satisfied, from the discussion already had and from what I know of the feeling of the House, that I cannot consistently bring the House to a vote upon the bill at a very early day. But I desire that the vote shall be taken on the proposition to amend the Constitution at once, for the reason that there are some Legislatures, as I understand, now in session which will terminate as early as the 1st of March. I understand there has been a general agreement that some amendment to the Constitution should be proposed, and I desire that the vote should be taken on that proposition at once. In order that the debate in the House to-­morrow may be directed to the proposed amendment of the Constitution, I ask unanimous consent that the speeches to-­morrow shall be limited to twenty minutes. Mr. BROOKS. Does the gentleman intend to abandon his bill? Mr. BOUT WELL. I do not intend to abandon the bill. I desire to have action at first on the constitutional amendment. ... The SPEAKER. By order of the House this evening will be devoted to debate on the proposed constitutional amendment in regard to suffrage. ... Mr. BECK. Mr. Speaker, I propose to reply to the argument of the gentleman from Massachusetts, [Mr. Boutwell,] who introduced, and in his elaborate and carefully considered speech doubtless set forth, the views of those who advised the proposed law: first, because his is the only speech on that side which represents the views of those who present it; and second, because it is through the politeness of his colleagues, Messrs. Marshall and Eldridge, the Democratic members of the committee, that I am entitled to the floor. Coming as it does from a majority of the Committee on the Judiciary, the leading lawyers of the House and the country, the measure is vouched for by no common authority. I speak of the bill, because it was on that his argument was made, though my remarks will apply with equal force to the amendment, and are so intended. The proposed amendment to the Constitution, unwise as I think it, is one Congress may possibly have a right to propose. Indeed, I suppose Congress may pro-

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pose anything that two thirds of both Houses concur in. The proposition amounts to nothing until the Legislatures of three fourths of the States ratify and approve it. ... The third proposition of the gentleman from Massachusetts is that no State which excludes a portion of its citizens from the exercise of the right of suffrage is republican in form; and as by section four of article four of the Constitution “the United States shall guaranty to every State in this Union a republican form of government,” it is our duty to pass this bill to comply with that guarantee. The distinguished source from which this proposition emanates alone entitles it to serious consideration. If I or any other common member of this House had enunciated and advocated it we would not have been listened to; it would have been treated simply as an absurdity. I suppose it will hardly be denied that the framers of the Constitution knew what constituted a republican form of government, and that each of the thirteen States that by the Constitution formed and constituted the United States were recognized then as having republican forms of government. It is hard to understand how they could have become parties to and have ratified the Federal compact if it had not been so. Mr. Madison, whose views coincided with those of Mr. Hamilton, in the forty-­third number of the Federalist assumed as an unquestioned and undoubted proposition that each of the States then had governments republican in form. ... Let us see wherein these States, having then beyond all question governments republican in form are now less so than they were then; let us see by what act or change they have lost their republican forms of government, so as to authorize the United States to interfere and restore it under her obligation to guaranty it to them. Twelve out of the original thirteen States were then slave-­holding States to begin with. Now slavery is abolished in all of them. They had republican forms of government while they held slaves and excluded the whole negro race from the right of suffrage. Will it be contended that the abolition of slavery has made their forms of government anti-­republican? I presume the gentleman from Massachusetts and his colleagues on the Judiciary Committee will not so contend. Suffrage in nearly all these twelve States was confirmed when the constitution was adopted to free white men, and

in a number of them property qualifications were prescribed as a condition-­precedent to the exercise by the citizen of the right of suffrage. Yet Mr. Madison, in the extract I have read, assumed as an undoubted and indisputable fact that the then existing State governments were all republican in form. Massachusetts by her constitution of 1780, under which she maintained her republican form of government without amendment on the question of suffrage till 1836, limited the right of suffrage thus by article four, chapter one: “Every male person, being twenty-­one years of age, and resident in any particular town in the Commonwealth for the space of one year next preceding, having a freehold estate within the same town, of the annual income of three pounds, or any estate of the value of sixty pounds, shall have the right to vote in the choice of a representative or representatives for the said town.”

That property qualification doubtless deprived half her white citizens of the right of suffrage, yet none of her statesmen of that day for a moment supposed that her government was anti-­republican, or that the Congress of the United States, under the constitution she had helped to create, could set aside her constitution and laws because she had an aristocratic and not a republican form of government. No one knows better than the gentleman from Massachusetts that suffrage was not universal in any of the republics of ancient times. None knows better than he that it was not universal in any of the republics of America when they united in the formation of the Federal Constitution, and none knows better than he that in the changes made by the thirteen original States in their constitutions after the Federal Constitution was adopted a large majority of them limited, and still limit, the right of suffrage to white male citizens; and he knows as well as any man on this floor, and every school-­boy knows, that every State that was admitted into the Union after the formation of the Federal Constitution, prior to 1862, without a single exception, limited the right of suffrage in their constitutions to white male citizens, and that all of those that changed their constitutions in any way prior to 1864 continued the limitation, and confined the right of suffrage to white male citizens. Yet all these States so admitted into the Union, slave-­holding and free, were admitted by a distinct resolution of Congress, in each case declar479

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ing that they were so admitted under the constitutional provision authorizing the admission of new States, because they had each adopted constitutions republican in form. ... I now propose to show that the fourteenth amendment gives Congress no power over suffrage in the States, and that even the Republican party never claimed that it did, but, on the contrary, distinctly avowed in the most solemn form that it did not, pledging themselves to the people of the country that they would so maintain if they were again intrusted with power and place. When General Grant was nominated, the convention which met at Chicago in May, 1868, after the whole meaning and effect of the fourteenth amendment was fully understood, laid before the country a platform of principles which it pledged itself to uphold and be governed by. Congress took a recess, and its Republican members were there en masse, doubtless its most active members, and the following resolution was unanimously adopted, being the second in the series: “The guarantee by Congress of equal suffrage to all loyal men at the South was demanded by every consideration of public safety, of gratitude, and of justice, and must be maintained, while the question of suffrage in all the loyal States properly belongs to the people of the States themselves.”

If that resolution was not intended to delude and deceive the people whose confidence and support they were seeking to obtain because of the principles they were pledging themselves to uphold and perpetuate, this bill cannot be supported by any man who did not publicly disavow the published principles of his party. If the question of suffrage in all the loyal States rightfully and properly belongs to the people of the States themselves Congress cannot legally or properly interfere with it, and it would not only be bad faith but gross usurpation so to do. But independent of that, it is evident, not only from the debates in both Houses of Congress at the time the fourteenth amendment was proposed, but from the language of the amendment itself when considered in reference to the peculiar and anomalous condition of the negro race, to which it more specifically, indeed almost exclusively relates, that the first section of the amendment, even if we leave out of view the second, which, making clear the meaning of the first, fully sustains the position which I in common with the Republican con-

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vention—and we agree but seldom—maintain, that the question of suffrage was not thereby interfered with, but was left where it properly belongs, with the States themselves. Prior to that amendment negroes were not citizens of the United States. They possessed none of the rights or privileges and were entitled to none of the immunities of citizens. They could not sue in the courts of the United States. Passports to travel in foreign countries could not be granted to them because the United States could not protect any but her citizens. A negro born abroad could not be naturalized, that right being limited to free white persons. When the Constitution was adopted they were not regarded in any of the States as constituting any part of the people or citizens thereof, and the only two clauses in the Constitution pointing to the negro race treat them as persons whom it was legally and morally right to deal in as property and hold as slaves. The then civilized world acted on that idea in regard to them. Of course, no State could, after the adoption of the Federal Constitution, by any State legislation, make either a foreigner or other description of persons citizens of the United States, nor entitle them to the rights or privileges secured to citizens by that instrument; and while a State might by its own laws place a negro or any other person on a footing with its own citizens as to all rights, privileges, and immunities enjoyed by them within its own dominion, it could not make him a citizen of the United States so as to confer upon him any of the privileges or immunities of a citizen of any other State. It was because of these well-­settled principles that Massachusetts was unable to afford protection to negroes who were citizens of that State when they were seized and punished in South Carolina, which prohibited free negroes from other States from landing on her soil. It was because they were well established that Dred Scott could not test his right to freedom in the courts of the United States. By section two, article three, of the Constitution the judicial power of the United States so far as it is controlled by the personal status of the litigant is limited to controversies “between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants from different States, and between a State or the citizens thereof and foreign States, citizens, or subjects,” so that it was up to the adoption of the fourteenth amendment impossible for a negro resident in a State that refused him the privileges of State citizenship to assert

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any rights in the courts of the United States; and it was equally impossible for him to obtain any of the benefits of section two, article four, of the Constitution, which provides that— “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”

It was to give to the negro race, nine tenths of which had been held in slavery until the adoption of the thirteenth constitutional amendment, the benefit of the protection which citizenship confers that the fourteenth amendment was adopted, if it be adopted, which, for the purposes of this argument only, I propose to admit. Under it negroes, as well as Indians, Gipsies, Chinese, and all the Mongolian races born in the United States, men and women, young and old, can now sue and be sued in the courts of the United States. They can travel under the protection of the Government in foreign countries; they can move from State to State, locate in any State, acquire, hold, and enjoy property under the protection of the laws of the State upon the same terms as white citizens going there from other States can; they are entitled to the privileges and immunities of citizens of the United States, and those rights are not be abridged by State legislation when such citizen of the United States comes within the local jurisdiction of the State. But as it must be conceded that being a citizen of the United States, whether by birth or naturalization, never gave any man the right against the will of the State to go there and exercise the right of suffrage, the refusal of the State to grant it cannot in any sense abridge his rights or privileges as a citizen of the United States. It is impossible for any privileges to be abridged that a man never possessed. The very idea conveyed by the term abridge is that existing rights, privileges, or immunities shall not be impaired, taken from, diminished or made less beneficial, but it conveys no idea of the acquisition of rights or of the requirement now assumed that new privileges shall be granted. Whatever privilege he possesses by virtue of being such citizen when he goes within the local jurisdiction of a State shall not be taken away, impaired, or abridged. But no new grant is either required or expected from the State. She shall not interfere with his right to sue in the courts of the United States, nor withhold from him the equal protection of her laws; to do so would abridge his privileges. The first section has that extent—no more. States may allow persons to exercise the right of suffrage

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who are not citizens of the United States; most of the northwestern States have done so; some of them now do, or they may refuse to allow it to citizens of the United States, as Rhode Island now does, to those who are naturalized. A grant of the right of suffrage in a republic is an investment of the individual to whom it is granted with the highest rights of citizenship, yet it is by no means an element necessary to establish unqualified citizenship. All the native-­born white females in the United States, and all persons, male and female, under twenty-­one years of age, are as much citizens of the United States and of the States in which they reside, and are as fully entitled to the protection of all the laws, State and Federal, as those males to whom the right of suffrage is intrusted. The paupers in Massachusetts, and those who cannot read the Constitution in the English language nor write their names, all of whom are excluded from the right of suffrage in that State by its constitution, are citizens of the State as much as those who vote. If the gentleman and his friends had given the people of the southern States the same constitution that the people of Massachusetts in 1836 imposed upon themselves, ninety per cent of the negroes there would be excluded from the exercise of the right of suffrage; and while they are fastening negro equality, social and political, upon that people, Massachusetts, in her code of laws passed in 1836, prohibited the marriage of any white person with a negro or mulatto, declared all such marriages null and void, and their children bastards, punishing by a fine of fifty pounds any person who should join them in marriage. I think Massachusetts was right; but with her high pretensions to justice she ought to apply the same rule to others that she does to herself. Mr. Speaker, it seems like child’s play to cite authority to sustain a proposition so plain as that the right of suffrage is by no means a necessary incident of citizenship. It may not be amiss, however, to say that in the discussion of the civil-­rights bill, which makes all negroes born in the United States citizens of the United States, and gives them all the right that citizenship can confer, as well as in the discussion of the rights given to them by the fourteenth amendment, Senator Trumbull, chairman of the Judiciary Committee of the Senate, and all the Republican lawyers in both Houses whose opinions were worth anything, admitted that neither the act nor the amendment conferred, or were expected or intended to confer on them the right of suffrage. All agreed that each State regulated that matter as each might consider that extension or limitation of the right

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most conducive to the welfare of the State. It was in view of these well-­known facts and admissions that I asked the gentleman from Massachusetts, while making his speech, the following questions, which, with his answer, I read from the Globe:

tion which the Federal Constitution throws around its citizens, and such as the State constitutions grant to all their citizens, young and old, male and female, rich and poor, all of which can be done without any changes in the fundamental laws of the States; purposely leaving the question of suffrage as it stands in the several State constitutions, so that the people thereof may extend the right or not as they see fit. Congress doubtless desired that all the States should adopt universal suffrage, and so desiring, determined to so exercise the power it possesses of apportioning representation among them as to make it their interest to do so. It had been heretofore provided that population should regulate representation in Congress, with some modifications. Now it is provided that suffrage shall control; hence the second section of the amendment, which provides:

“I desire to ask if by the first section of the fourteenth amendment it was intended to prevent the States from determining who should and who should not vote, why, when it provides that ‘no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ it did not add, nor makes discriminations among the citizens of the State itself in the exercise of the right of suffrage? “Mr. BOUT WELL. There was the plainest reason in the world. It was not necessary. The article provides, as it stands, that there can be no discrimination by the States among the citizens of the United States, who are as well citizens of the several States and entitled equally to the privileges of citizens.”

The answer not only does not meet, but carefully avoids the question. All may be equally entitled to the privileges of citizens without impairing the absolute right and power of the State to limit suffrage there as it pleases. The women and children, as I have stated, are all citizens of the State and of the United States. The paupers and those who cannot read or write in Massachusetts are all citizens, and their rights, privileges, and immunities cannot be constitutionally abridged; but that does not make them voters in the State. It never entered into the brain of any statesman till a majority of the Judiciary Committee of this House took it up by presenting this bill, that every State constitution, with the exception perhaps of Vermont, is overthrown and annulled by that amendment, and that every State is now carrying on the State government under a constitution which contains provisions inconsistent with and antagonistic to the Constitution of the United States, and are therefore now living in contempt of, if not in rebellion to its authority. If the words—or any others equivalent thereto—suggested in my question had been inserted, despotic and revolutionary as the exercise of such power would have been, being subversive of the freedom and rights of the States, indeed of their very existence as States, still it could have been understood that universal suffrage was to be enforced, the failure to insert some such idea is conclusive that it was only intended to invest this class of people with the protec-

“Sec. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding 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 Congress, the executive and 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.”

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It is contended by the gentleman from Massachusetts that this is only a political punishment to be imposed on such States as refuse to obey the mandates of the first section till such time as Congress can enforce its provisions, which he asserts provides that the right to vote for certain officers cannot be denied or abridged. A more unfounded assumption cannot well be imagined. The right to vote is not only not secured by the first section, as he assumes, it is not even alluded to; nor, as I have shown, is there any language in it which indicates that was so intended. Just the reverse; and as the right to regulate that question was by the first section left the States, the consequences which are to follow their refusal to make suffrage universal are determined in the second.

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If the first section secured the right to vote at all, the second was the most absurd and abortive effort to secure that right to the parties entitled to it that can well be conceived. It is very hard to see how the disfranchised or unenfranchised persons are better protected, or their right to vote in any way forwarded, by a diminution of the representation of the States of their residence in the Congress of the United States. The conclusion of the gentleman on that subject is singularly lame and impotent. This amendment being part of the Constitution is, of course, subject to and governed by the same rules of construction as the original instrument, which is a grant of express powers, or of powers properly and necessarily inferable from the express grant. There is no bill of rights in the Federal Constitution, while nearly all the State constitutions contain them; the amendments to the Constitution being all limitations on the General Government and not applicable to the States. Why is this? Simply because the Federal Constitution could grant no rights; it only received powers, and is authorized to enforce restrictions which the States put upon themselves. Construing the force, effect, and meaning of this amendment as I do, there is no difficulty in carrying it out by appropriate congressional legislation; but if the other view is attempted to be enforced and the existing constitutions and laws of the States are to be set aside by legislation here, as this bill proposes, it will be very difficult to find either an express grant or a properly implied one anywhere in that first section. ... Mr. SHANKS. Mr. Speaker, my purpose in rising at this time is to say that I will vote for the bill and proposed amendment of the gentleman from Massachusetts, and have offered an amendment thereto by inserting the word “property” in the seventh line of the first section of the printed bill, and in the eleventh line of the amendment to prohibit the practice adopted by some of the States of requiring a property qualification for voters as well as for the purposes previously intended by the bill and amendment, that of prohibiting encroachments on the elective franchise on account of race, color, or previous condition of slavery. But, sir, I here wish to state further that I do not think the amendment to the Constitution necessary. In my opinion the bill is ample to reach the case. ... Mr. MCKEE. Mr. Speaker, it is not my purpose to-­ night or at any time hereafter in discussing this subject

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to enter at any length upon a discussion of the constitutional question involved in the bill that is before the House. It is chiefly to the bill that I propose to confine my remarks. I would say, however, in regard to the amendment proposed, that while perhaps it is not such as in all respects meets my approval, and such as may be necessary for the times and for the country, yet in some shape or other I regard it as a necessity in order to secure to every citizen in the land the rights that belong to him. I think that one defect in the text of our constitution as it originally stood was that it failed to embody any declaration as to what constitutes a citizen. That defect has been cured by the fourteenth article of amendment, which has now become the fundamental law of the land. A second defect, in my opinion, in the original instrument, is that there is no declaration in it as to what are the rights of the citizen. Until, therefore, an amendment is ingrafted upon that instrument defining clearly what a citizen’s rights are, we are continually to have trouble because of the different constructions and different legislative enactments by the different States in regard to these questions. In regard to the proposed amendment as several gentlemen have already offered substitutes for the proposition, I have drawn one myself which I propose to offer at the proper time, and I will read it in order that it may be incorporated as a part of my remarks. It differs very little from those which have already been offered in effect, only perhaps changing the amendment offered by the gentleman from Ohio [Mr. Shellabarger] to an affirmative proposition. It is in this language: Every male citizen of the United States of the age of twenty-­one years and upward shall be entitled to the elective franchise in all elections in the State in which he shall have actual residence as shall be prescribed by law, except such as have engaged or may hereafter engage in insurrection or rebellion against the United States, or such as shall be duly convicted of treason, felony, or other infamous crimes; and no State shall make or enforce any law disfranchising any citizen for any other cause than herein mentioned. In my judgment this amendment should be affirmative and not negative, and by that means we will have the right of the citizen to the elective franchise clearly defined, and behind which no State can go. That is all I propose to say in regard to this question of the amendment except to give my assent to the proposition in whatever form the majority of this House may finally submit it.

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And now I propose to pass to the consideration of the bill which has been reported from the Committee on the Judiciary, and in passing to the bill I will simply say in reference to the remark made by my colleague who preceded me, [Mr. Beck,] near the close of his speech, in which speech, in which he uttered the language, “I have no defense to make of my own State, Kentucky,” that as Kentucky stands to-­day, the only State in all this Union that strips utterly two hundred and fifty thousand citizens of every right, I do not believe my colleague would dare come here and offer any defense for her. He followed up that with the declaration that this measure is aimed particularly at Kentucky. Perhaps it may be. There is a necessity in the declaration that it should be aimed at her. Then my colleague followed it up with the further declaration that when this Congress saw fit to strike down that proud State it would be one of the darkest hours of the Republic. Why, Mr. Speaker, I supposed the time had gone by when the Congress or this nation was to be frightened by the cry that Kentucky stands in the way of an act of justice. We have heard that cry ever since 1861, and too often was that cry listened to during the administration of the late lamented Mr. Lincoln. I believe that the time has gone by and gone by forever when the people of this land will be any longer frightened by her threats coming officially from her Governor or from her Representatives upon this floor. I believe furthermore that the time has now come and is upon us to-­day when we are recreant to our duty, recreant to freedom, recreant to justice, recreant to right if we sit quietly in our places here and suffer her to trample the laws of our country under foot and grind into the dust the rights of a quarter of a million of freemen. Now, sir, the fourteenth amendment, upon which this bill is proposed to be based, has been ratified and officially proclaimed as a part of the organic law of the land. I know that my colleague threw out the intimation, “if it were an amendment;” and I know that the doctrine held by the officials of the State of Kentucky is that it has not been adopted; but I believe that it will be a long time in the future before this Government, or any part of it outside of Kentucky, will question the validity of that amendment. The first section of the amendment reads as follows: “Section 1. All persons born or naturalized 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.”

Sir, that provision stands to-­day as a part of the Constitution of the United States; but without a law to enforce it it is a dead letter. All over my own State, all over the State of Maryland, and in many parts of the unreconstructed South to-­day, the chief places are held by men who, by the third section of this fourteenth amendment to the Constitution of the United States, are declared to be not entitled to the right to hold such offices. In my own State to-­day the first section of this amendment which I have read is a dead letter entirely, except so far as it is enforced in the Federal courts of our country. Not a State court in Kentucky to-­day admits the right of two hundred and fifty thousand colored people in that State to testify in any matter concerning their lives, their liberty, or their property in any case in which the matter at issue is between themselves and white persons. Her high officials are enforcing that state of affairs in Kentucky and defying your laws to-­day, overriding your Constitution to-­ day, trampling it into the dust to-­day. Without a law to enforce that constitutional amendment it stands upon your statute-­book to-­day as a simple declaration. ... I have another article here of the same tenor from the Frankfort Yeoman, published at the seat of government and edited by J. Stoddard Johnson, who had the honor of being sent on here by the electors of the State of Kentucky to bear the vote of that State in the presidential election, in which this language occurs. I read the conclusion of the article, dated June 16, 1869:

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“We maintain that said article constitutes no part of the Constitution, for various reasons, and that the courts must so decide; first, because it was not submitted to the States by a vote of two thirds of the Congress of the United States, but only two thirds of a rump; second, because the States of Ohio, New Jersey, and Oregon having rescinded the action of their respective Legislatures ratifying the said amendment before its promulgation, it has not received the ratification of the requisite three fourths of the States—said three States being nec-

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essary to make up that number; and third, because the pretended ratification by the southern States is utterly void and of no effect, the Legislatures ratifying having been elected under the so-­called reconstruction acts, which are unconstitutional, and they, constituting the foundation, falling, the whole superstructure must fall also. But enough for the present.”

That is the spirit of the party to-­day, a party which is dominant in my own State, a party which, as I have said, defies all your laws on this question; a party which refuses to submit to the verdict of the nation, rendered first in the field and then ratified by the voice of the loyal millions at the ballot-­box. ... Mr. Speaker, all over the State of Kentucky for the last two years we have had outrage upon outrage, murder upon murder, assassinations by night and by day by the Kuklux Klan, or Regulators, or whatever you may choose to call them. In the dead hour of the night they have gone to men’s houses, dragged them from their beds, beaten them and murdered them in the presence of their families, taken them out and hanged them; yet, sir, notwithstanding all this, there is not a single case on the record of that State where one single man engaged in this system of outlawry has been either arrested or punished for the commission of these crimes. Can you expect otherwise when the highest officials in the State themselves openly, systematically, and daily violate the laws of the land? First, sir, you must remove those who countenance violations of the law, violations of the statute, and who themselves trample your own laws in the dust. Until you have done that you cannot expect to have peace in that State, the execution of the laws of the land, or any protection of life and property. I might read many extracts in support of what I have said, and to show that these outrages take place almost within gunshot of the Governor’s mansion, and yet nothing is done to prevent them. ... One word more, and I shall conclude. I have spoken chiefly in regard to the third and fourth sections of the bill reported from the Committee on the Judiciary. I have a word to say in regard to the first part of the bill, that relating to the right of suffrage. As I have said, I have no constitutional arguments to make on this matter. If I ever had any doubts in regard to the constitutionality and the right of Congress to legislate on the subject of

suffrage, as I confess I have had, all that doubt was removed when this fourteenth amendment was declared part of the fundamental law of the land; and I am not sure but the doubts which I had upon the question were doubts which I ought never to have entertained. But, sir, when this fourteenth amendment was adopted, which made all these people citizens, and declared that they should be entitled to all the rights and privileges of citizens, I had no longer any doubt as to the constitutional right of the Congress of the United States to declare that these men shall be voters in any and every State on the same footing with white men. You cannot in any manner so forcibly—I might say you cannot in any manner at all—secure to a man the protection of his rights and immunities in any other way in a free republic like this than by giving into his hands the ballot. I have no further constitutional argument to make; but as a matter of justice, as a matter of right, as a matter necessary to enforce that which is already a part of the Constitution of our country, I give my voice and my vote for this measure, believing that while we may secure the same ends by the amendment which is proposed we shall secure it more efficiently by the passage of this bill. In so doing we shall do an act of justice, which, as a party pledged to the rights of man, we owe to every citizen of this land. I believe, furthermore, that every day we hesitate to do this simple act of justice, we, as the representative body of the nation, put ourselves in the position before the world of having declared in favor of a principle which we have not the courage to carry out.

8 US House, Suffrage Amendment, Speech of John Bingham, Debate January 29, 1869*

The SPEAKER. The House now resumes the consideration of the motion of the gentleman from Massachusetts [Mr. Boutwell] to reconsider the vote by which the bill (H.R. No. 1667) to secure equal privileges and immunities to citizens of the United States, and to enforce the provisions of article fourteen of the amendments to the Constitution, and the joint resolution (H.R. 485

* Cong. Globe, 40th Cong., 3rd Sess., 721–29 (Jan. 29, 1869).

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No. 402) proposing an amendment to the Constitution of the United States, were recommitted to the Committee on the Judiciary. ... Mr. BINGHAM. Mr. Speaker, I fully concur with my colleague [Mr. Shellabarger] in all that he has said touching the objectionable features of the amendment as presented by the gentleman from Massachusetts, [Mr. Boutwell.] The House, I have no doubt, will concur with me in saying that the only limitation that the amendment imposes upon the original powers now in the several States of this Union is the limitation that they shall not restrict the elective franchise in the persons of citizens by reason of race, color, or previous condition of slavery. Those three terms are the only terms of limitation in it, and hence it is manifestly true that this power remaining in the States, in no other manner fettered by the proposed amendment, may be exercised to the end that an aristocracy of property may be established, an aristocracy of intellect may be established, an aristocracy of sect may be established; in short, what has been done in New Hampshire in regard to official qualifications may be done in every State in this Union in regard both to the qualifications of officers; that is to say, the States may set up a religious test, and pronounce at once that all who are not of the Protestant faith shall be disqualified either to vote or to hold office, and add thereto a property qualification and an educational qualification. Hence, I believe, if we are going to touch this question by amendment we ought so to amend the proposition of the gentleman from Massachusetts [Mr. Boutwell] that the amendment presented to the people for their approval will inform them that upon its adoption these abuses by States will hereafter be impossible. To that end I have offered an amendment which, in substance, is the same as that proposed by my colleague, [Mr. Shellabarger.] with a single exception. I propose to amend the proposition of the gentleman from Massachusetts [Mr. Boutwell] so that it will read as follows:

State wherein he shall have actually resided for a period of one year next preceding such election, except such of said citizens as shall hereafter engage in rebellion or insurrection, or who may have been or shall be duly convicted of treason or other infamous crime.

I desire to give in passing one reason that controls me in presenting this amendment in this form, as to the term of residence required—one year next preceding the election in the State in which he shall offer to vote— that reason is this: each year there are landed upon our shores hundreds of thousands of adult persons who are aliens of—by the modern invention of forged naturalization papers, the Government of the United States is not protected against the pollution of the ballot-­box by thousands who are not entitled to vote, and yet control the elections of the people. I have something further to say of the additional limitations proposed in the short time within which this debate is limited, and then I shall have done. My colleague, [Mr. Shellabarger,] I regret to say, has deemed it his duty, in addition to what I have offered here, to offer a further exception; allowing the several States of this Union to exclude from the ballot, for all time to come, all who may have participated in the late rebellion. The gentleman—in addition to the provision that all who may hereafter participate in any rebellion, which is my own amendment, and is intended to protect the Government in the future—would make this constitutional provision have a retrospective operation, thus presenting, by our consent, to the eyes of the civilized world a constitutional provision for disenfranchising in some of the States a majority of its male adults because they have participated in the rebellion, while you enfranchise by name the whole body of male adult citizens of sound mind, without distinction of race or color, who heretofore have been deprived of suffrage. The proposition of my colleague to except “all who have engaged in rebellion” would include all the victims of a cruel conscription, a conscription which entered the homes of hundreds and thousands of people of the southern States and forced them to bear arms in the rebellion against the Constitution and laws of their country. Sir, it is the common law of the civilized world that no man is criminal in that which he does by coercion; and for myself, while reason holds a place in my brain, I never will support a proposition which holds such per-

Sec. 1. No State shall make or enforce any law which shall abridge or deny to any male citizen of the United States of sound mind and twenty-­one years of age or upward the equal exercise of the elective franchise, subject to such registration laws as the State may establish, at all elections in the

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sons criminal because, in my judgment, it outrages the enlightened conscience and common sense of mankind. I know the answer is that we do not by this amendment say the States shall do this. My reply is that if we so amend the proposition the States may do this. I submit, sir, that it is not right to affirm to the States the power to do it. We have no more right to disqualify from the ballot the male citizen of sound mind, who by force of conscription bore arms in support of the rebellion, than we have to disqualify you, Mr. Speaker, or to disqualify my honorable colleague. I wish to remark further, when we were exercising the transcendent powers of this nation, the power of self-­ defense in presence of the late rebellion, when all the limitations of the Constitution were silent, we never dared to put upon the statute-­book any such provision as the amendment of my colleague contemplates; that the great mass of the men who participated in the rebellion should not vote in the preliminary work of reorganization. On the contrary, by our statutes we did not disqualify one out of twenty of the adult males of the South who participated in the rebellion. Why? Because the Congress of the United States had no thought of setting up in any of the States an oligarchy by operation of statute law. The Congress while providing by the thirteenth and fourteenth articles of amendment to make all men free avoided any proposition by way of amendment to deny the ballot to any citizen. Let it not be forgotten that when it was proposed to insert in the fourteenth article of amendment the provision that until 1870 those who had participated in rebellion should not vote for members of Congress or for Presidential electors it was struck out by every vote of the Senate save one. Now we are to ask the Senators who thus voted, and whose votes stand thus recorded to so amend the Constitution as to allow the ballot to be denied to all who have participated in rebellion not for a limited period of a year, but for life. Mr. Speaker, I am opposed for another reason to this proposition of my colleague. The interests of this great country demand that we shall so frame the fundamental law of the country that we will take not vengeance for the past, but security for the future. We should so amend our Constitution as to summon back to the standard of the country and to the support of its Government the whole multitude of men who but yesterday were in arms against us. We should so amend the Constitution as that by this work of generous deliver487

ance, by the will of a brave and victorious people, we shall hasten that hour for which all good men pray, when we shall again be one people, with one Constitution and one country. We should frame this amendment so as to carry out the humble petition of the great man whom but yesterday the people lifted by their ballot to the highest office in their gift. “Let us have peace,” says Grant. “Let us have peace!” We shall have it when we so amend the Constitution as to clothe the whole body of the people with the elective franchise, and say that no State shall deprive them of it, leaving the disabilities as to the holding of office standing as they stand in the text of the Constitution to-­day. Was it not the people’s judgment solemnly recorded by the ratification of the fourteenth article of amendment that the only political disability which they would sanction in organized States by reason of and for participation in the late rebellion was that those who violated an official oath to support the Constitution by engaging in the rebellion, or giving aid and comfort to the enemies of the Constitution, should be disqualified for office, civil and military, State and national, until Congress should remove the disability. That was their judgment, and by that judgment we should abide. They intended that there should be neither political nor servile slaves in any State. Let us stand by that judgment and not consent that any of the several States may disfranchise a majority of the male citizens resident therein by reason of the late rebellion. Having done that, sir, our action will be consistent with our past record. Having done that we shall hasten the time when we shall have peace. Those words, “Let us have peace!” ought to be written in the heart and mind of every one of us when we come to deliberate upon this question. “Let us have peace!” ought to be written on the archways of your Capitol, and, if it were possible, ought to be written upon the azure arch which bends above us like the arms of beneficence to which weary men look up for hope and consolation. “Let us have peace” by an act of peace, that we may restore the broken fabric of American empire. “Let us have peace” by the works of peace and the arts of peace, that the land which but yesterday was stained with fraternal blood may grow green and beautiful under the hand of honest toil. “Let us have peace” that we may perfect the holy temple of our liberties until it shall lift its headstone of beauty above the towers of watch and war, filling the whole earth with its glory, and drawing all nations unto it. “Let us have peace,” that by our sublime example we

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may teach the whole world “how good and how pleasant a thing it is for brethren to dwell together in unity.” ... Mr. BOUT WELL. I suppose, under the circumstances in which we are placed, that the wiser way is to allow the proposition of the gentleman from Ohio on my left [Mr. Bingham] to be submitted, and also the proposition of the gentleman from Ohio on my right, [Mr. Shellabarger.] I will yield first to the gentleman from Ohio on my left to offer his amendment. Mr. BINGHAM. I move to amend section one of the proposed article of amendment by striking out all but the words “citizens of the United States” and inserting so that it shall read as follows:

Mr. BOUTWELL. The amendment of the gentleman from Ohio [Mr. Shellabarger] is new to me. The first impression upon my mind is that it is in such form as to defeat just exactly what we are aiming at. Mr. SHELLABARGER. The regulations are simply in regard to the exercise of the right. But the right to vote is secured by the substantial part of the section. Mr. BOUT WELL. I now call the previous question upon the amendment and the amendment to the amendment. The question was upon seconding the demand for the previous question. Mr. BURR. Is it in order to move that this joint resolution and the pending amendments be laid on the table? The SPEAKER. That motion is in order. Mr. BURR. Then I make that motion; and upon it I call for the yeas and nays. The question was upon ordering the yeas and nays. Mr. FARNSWORTH. I move that the House now adjourn. The SPEAKER. The Chair will state that if the motion to adjourn shall be now agreed to this subject will come up as unfinished business immediately after the morning hour to-­morrow. Mr. SCOFIELD. Let the previous question be seconded now; otherwise we will have a long debate on this proposition to-­morrow. The SPEAKER. The first question to-­morrow when the consideration of this subject is resumed, if the motion to adjourn is now agreed to, will be upon the motion of the gentleman from Illinois, [Mr. Burr,] that the resolution and pending amendments be laid upon the table. Mr. FARNSWORTH. I ask unanimous consent that this joint resolution, with the amendments pending thereto, be printed for the use of the House. No objection was made, and the order to print was accordingly made. The question was then taken upon the motion to adjourn; and upon a division there were—ayes one hundred and nineteen, noes not counted. So the motion was agreed to; and accordingly (at four o’clock and forty minutes p.m.) the House adjourned.

No State shall make or enforce any law which shall abridge or deny to any male citizen of the United States of sound mind and twenty-­one years of age or upward the equal exercise, subject to such registration laws as the State may establish, of the elective franchise at all elections in the State wherein he shall have actually resided for a period of one year next preceding such election, except such of said citizens as shall engage in rebellion or insurrection, or who may have been, or shall be, duly convicted of treason or other infamous crime.

Mr. BOUT WELL. As I understand that the gentleman from Ohio on my right [Mr. Shellabarger] can move his proposition as a substitute for that amendment I now yield to him for that purpose. Mr. SHELLABARGER. I move as a substitute for the amendment of my colleague [Mr. Bingham] that which I send to the Chair, being a modification of the amendment of which I gave notice a day or two since. The Clerk read as follows: No State shall make or enforce any law which shall deny or abridge to any male citizen of the United States of the age of twenty-­one years or over, and who is of sound mind, an equal vote at all elections in the State in which he shall have his actual residence, such right to vote to be under such regulations as shall be prescribed by law, except to such as have engaged, or may hereafter engage, in insurrection or rebellion against the United States, and to such as shall be duly convicted of infamous crime.

The question was upon the substitute offered by Mr. Shellabarger to the amendment offered by Mr. Bingham.

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9 US House, Suffrage Amendment, Alternative Versions Rejected, Passage of Amendment January 30, 1869*

The SPEAKER. The House now resumes the consideration of the unfinished business pending at the adjournment yesterday, being the joint resolution (H.R. No. 402) proposing an amendment to the Constitution of the United States, ... Mr. SHELL ABARGER. I withdraw the modifications of amendment which I offered yesterday, so as to leave the amendment as it was originally printed, and I ask that it may be read. The Clerk read the amendment, as follows: No State shall make or enforce any law which shall deny or abridge to any male citizen of the United States of the age of twenty-­one years or over, and who is of sound mind, an equal vote at all elections in the State in which he shall have such actual residence as shall be prescribed by law, except to such as have engaged or may hereafter engage in insurrection or rebellion against the United States, and to such as shall be duly convicted of treason, felony, or other infamous crime.

Mr. ELDRIDGE. I would ask the gentleman from Ohio if he is not willing to strike out from his amendment that exception in regard to persons convicted of crime or conviction of any other thing which may be considered or made to be crime, so that the bill or joint resolution shall only be prospective in its effect? Mr. SHELLABARGER. I do not know that I exactly understand the point of the inquiry. If the gentleman means to inquire whether I would not consent to strike out the exception of that class who must be convicted before they could be disfranchised, I reply that I would not. Mr. ELDRIDGE. If the gentleman will allow me, I will state what I desire. * Cong. Globe, 40th Cong., 3rd Sess., 742–45 (Jan. 30, 1869).

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The SPEAKER. Does the gentleman from Massachusetts [Mr. Boutwell] yield for that purpose? Mr. BOUT WELL. As I understand the proposition as modified by the gentleman from Ohio [Mr. Shellabarger] it is now precisely the proposition which he originally submitted to the House and which was printed, he having withdrawn the modifications which he suggested yesterday. Mr. SHELLABARGER. That is right. Mr. BOUTWELL. On the other hand, the proposition reported by the committee stands without any alteration whatsoever, except that the definite article “the” before the word “race” has been stricken out. Therefore the debate which took place yesterday was appropriate to these two propositions precisely as they stand. If we open the subject to-­day for debate, I do not know how, if the matter is to be left to me, I can regulate it consistently with the business of the House or with the appeals that are made to me on both sides of the House. I suggest, therefore, that it is better that we should come to a vote upon these propositions, which are probably now understood. Mr. ELDRIDGE. I do not wish to make a speech or an argument on the subject. I only wish to suggest to the gentleman from Ohio [Mr. Shellabarger] a modification of his amendment which I would desire. Mr. SHELL ABARGER. I wish now that we may have it distinctly understood how these propositions stand. Am I right in supposing that the proposition of the gentleman from Massachusetts, [Mr. Boutwell,] or rather of the Committee on the Judiciary, stands now just as it was reported, with the exception of the change by striking out the word “the” before the word “race?” Mr. BOUTWELL. There has been no other change. Mr. SHELL ABARGER. And the provisions suggested yesterday in relation to qualifications grounded on intelligence, &c., are now out of the case? Mr. BOUT WELL. They were voted down yesterday by the House two to one. Mr. ELDRIDGE. I desire to make a suggestion. Mr. BOUTWELL. If I yield it will open the matter to debate. Mr. ELDRIDGE. I do not desire to debate, but to suggest to the gentleman from Ohio [Mr. Shellabarger] a modification of the amendment he has proposed. Mr. BOUT WELL. Very well; let the suggestion be made without debate. Mr. ELDRIDGE. I desire to say that every feeling and sentiment of my nature is against ex post facto laws

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and the conviction by act of Congress of any person for a crime which he may have committed heretofore. I desire, therefore, that the gentleman from Ohio shall so modify his amendment as to make it apply to future offenses, to crime hereafter to be committed only, that we shall not by act of Congress convict men of crime and inflict penalties not provided for when the act was committed. Mr. BOUTWELL. I must insist upon my demand for the previous question. Mr. ELDRIDGE. Does that apply to the joint resolution as well as to the amendments which have been offered, so that the House will be brought to a vote upon all the pending propositions? The SPEAKER. It does. Mr. ELDRIDGE. And we shall be obliged to vote upon the amendments which have already been offered, and then upon the joint resolution itself, without opportunity to move further amendments? The SPEAKER. That will be the effect of the previous question, as moved by the gentleman from Massachusetts, [Mr. Boutwell,] if the House shall sustain the call and order the main question. Mr. BINGHAM. I appeal to the gentleman from Massachusetts [Mr. Boutwell] to allow me to make some verbal changes in my amendment before the previous question is ordered. Mr. BOUTWELL. Certainly. The SPEAKER. The gentleman has the right under the rules of the House to modify his amendment before the previous question is seconded. Mr. BINGHAM. The changes I have made in my amendment are merely verbal, not in any manner changing the substance of the proposition which I presented on yesterday. I ask the Clerk to read it as modified. The Clerk read as follows: No State shall make or enforce any law which shall abridge or deny to any male citizen of the United States of sound mind and twenty-­one years of age or upward the exercise of the elective franchise at all elections in the State wherein he shall have actually resided for a period of one year next preceding such election, (subject to such registration laws and laws prescribing local residence as the State may enact,) except such of said citizens as shall engage in rebellion or insurrection, or who may have been, or shall be, duly convicted of treason or other infamous crime.

... The main question was ordered; which was first upon Mr. Shellabarger’s amendment to the amendment of Mr. Bingham. The amendment was read, as follows: Strike out in the amendment of Mr. Bingham the provision proposed to be inserted in lieu of section one of the proposed new article of the Constitution, and insert in lieu thereof the following: No State shall make or enforce any law which shall deny or abridge to any male citizen of the United States of the age of twenty-­one years or over, and who is of sound mind, an equal vote at all elections in the State in which he shall have such actual residence as shall be prescribed by law, except to such as have engaged or may hereafter engage in insurrection or rebellion against the United States, and to such as shall be duly convicted of treason, felony, or other infamous crime.

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Mr. BROOKS. I wish to inquire whether the amendment of the gentleman from Ohio, [Mr. Shellabarger,] as now modified, contains in the fifth and sixth lines this language: “Such actual residence as shall be prescribed by law, except to such as have engaged,” &c.? The SPEAKER. The amendment, as it now stands, has been printed, and is printer’s No. 673. Mr. BROOKS. I rise to a point of order. I submit that no gentleman, not even the gentleman from Ohio, has the right to ingraft upon the instrument framed by Washington, Madison, Hamilton, Franklin, and their compeers such bad English as that contained in the clause I have just read. The SPEAKER. The Chair overrules the point of order. It is not the province of the Chair to decide upon points of grammar, or questions as to what is “bad English.” Such questions must be determined by the judgment of the House. Mr. ELDRIDGE. I desire to suggest to the gentleman from Ohio [Mr. Shellabarger] that the phrase “of sound mind” which he has inserted in his amendment will exclude a very large portion of the Republican party. [Laughter.] Mr. MULLINS. It would exclude all of the party of the gentleman from Wisconsin, [Mr. Eldridge.] The SPEAKER. No debate is in order. The House is acting under the operation of the previous question.

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Mr. GARFIELD. I call for the yeas and nays on agreeing to this amendment. The yeas and nays were ordered. The question was taken; and it was decided in the negative—yeas 61, nays 126, not voting 35; as follows: YEAS—Messrs. Delos R. Ashley, Baldwin, Beaman, Beatty, Benton, Boles, Bowen, Broomall, Buckland, Cake, Clift, Cobb, Coburn, Cullom, Dawes, Delano, Eckley, Eggleston, Ela, James T. Elliott, French, Gravely, Hamilton, Hawkins, Hooper, Chester D. Hubbard, Judd, Julian, Kelley, Kelsey, George V. Lawrence, William Lawrence, Loan, Logan, Maynard, Mullins, Newsham, Norris, Orth, Paine, Plants, Polsley, Price, Prince, Sawyer, Schenck, Scofield, Shanks, Shellabarger, Starkweather, Stokes, Sypher, Twichell, Robert T. Van Horn, Ward, Cadwallader C. Washburn, Henry D. Washburn, William B. Washburn, Welker, Whittemore, and William Williams—61. NAYS—Messrs. Allison, Archer, Arnell, James M. Ashley, Axtell, Bailey, Baker, Banks, Barnum, Beck, Ben­ jamin, Bingham, Blaine, Blair, Boutwell, Boyden, Boyer, Bromwell, Brooks, Burr, Benjamin F. Butler, Callis, Cary, Chanler, Churchill, Sidney Clarke, Cook, Corley, Covode, Deweese, Dockery, Dodge, Donnelly, Driggs, Edwards, Eldridge, Thomas D. Eliot, Ferriss, Ferry, Fields, Fox, Garfield, Getz, Golladay, Goss, Gove, Griswold, Grover, Haight, Halsey, Harding, Haughey, Heaton, Higby, Hopkins, Hotchkiss, Hulburd, Humphrey, Hunter, Jenckes, Johnson, Alexander H. Jones, Thomas L. Jones, Kerr, Ketcham, Knott, Koontz, Laflin, Lash, Lincoln, Loughridge, Marshall, Marvin, McCormick, McCullough, McKee, Mercur, Miller, Moore, Morrell, Mungen, Myers, Newcomb, Niblack, Nicholson, Nunn, O’Neill, Perham, Peters, Phelps, Pierce, Pike, Pile, Poland, Pruyn, Randall, Raum, Robertson, Robinson, Roots, Ross, Sitgreaves, Smith, Spalding, Stewart, Stone, Stover, Taber, Taffe, Taylor, Thomas, Tift, John Trimble, Trowbridge, Upson, Van Aernam, Van Auken, Burt Van Horn, Van Trump, Van Wyck, John T. Wilson, Stephen F. Wilson, Windom, Woodbridge, Woodward, and Young—126. NOT VOTING—Messrs. Adams, Ames, Anderson, Barnes, Blackburn, Buckley, Roderick R. Butler, Reader W. Clarke, Cornell, Dickey, Dixon, Farnsworth, Glossbrenner, Hill, Holman, Asahel W. Hubbard, Rich­ ard D. Hubbard, Ingersoll, Kellogg, Kitchen, Lynch, lory, McCarthy, Moorhead, Morrissey, Pettis, Mal­ Pome­roy, Selye, Stevens, Lawrence S. Trimble, Vidal, Elihu B. Washburne, Thomas Williams, James F. Wilson, and Wood—35.

So Mr. Shellabarger’s amendment to the amendment of Mr. Bingham was not agreed to. ... The question then recurred on Mr. Bingham’s amendment, as follows: Strike out all of article one and insert as follows: Section 1. No State shall make or enforce any law which shall deny or abridge to any male citizen of the United States of sound mind and twenty-­ one years of age or upward the equal exercise of the elective franchise at all elections in the State wherein he shall have actually resided for a period of one year next preceding such election, subject to such registration laws and laws prescribing local residence as the State may enact, except such of said citizens as shall engage in rebellion or insurrection, or who may have been, or shall be, duly convicted of treason or other infamous crime.

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Mr. WARD demanded the yeas and nays. The yeas and nays were ordered. The question was taken; and it was decided in the negative—yeas 24, nays 160, not voting 38; as follows: YEAS—Messrs. Axtell, Baker, Bingham, Brooks, Deweese, Dockery, Eldridge, Garfield, Haight, Heaton, Hotch­kiss, Alexander H. Jones, McCullough, Phelps, Plants, Robinson, Ross, Spalding, Stewart, Stone, Tift, John T. Wilson, Woodward, and Young—24. NAYS—Messrs. Allison, Arnell, Delos R. Ashley, James M. Ashley, Bailey, Banks, Beaman, Beatty, Beck, Ben­ja­min, Benton, Blaine, Blair, Boles, Boutwell, Bowen, Boyden, Boyer, Bromwell, Broomall, Buckland, Buck­ ley, Burr, Benjamin F. Butler, Cake, Callis, Cary, Chan­ler, Churchill, Sidney Clarke, Clift, Cobb, Coburn, Cook, Corley, Covode, Cullom, Dawes, Delano, Donnelly, Driggs, Eckley, Eggleston, Ela, Thomas D. Eliot, James T. Elliott, Ferriss, Ferry, Fields, Fox, French, Getz, Golla­day, Goss, Gove, Gravely, Griswold, Grover, Halsey, Ham­il­ton, Harding, Hawkins, Higby, Hooper, Hopkins, Ches­ter D. Hubbard, Hulburd, Humphrey, Hunter, Jenckes, Johnson, Thomas L. Jones, Judd, Julian, Kelley, Kel­logg, Kelsey, Kerr, Ketcham, Koontz, Laflin, Lash, George V. Lawrence, William Lawrence, Lincoln, Loan, Logan, Loughridge, Lynch, Mallory, Marshall, Marvin, Maynard, McCormick, McKee, Mercur, Miller, Moore, Moor­ head, Morrell, Mullins, Mungen, Myers, Newcomb, Newsham, Niblack, Norris, Nunn, O’Neill, Orth, Paine, Perham, Peters, Pierce, Pike, Poland, Polsley, Price, Prince, Pruyn, Randall, Raum, Robertson, Roots, Saw­ yer, Schenck,

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Scofield, Selye, Shanks, Shellabarger, Sit­greaves, Smith, Starkweather, Stokes, Stover, Sypher, Taber, Taffe, Taylor, Thomas, Trowbridge, Twichell, Upson, Van Aernam, Van Auken, Burt Van Horn, Robert T. Van Horn, Van Trump, Van Wyck, Ward, Cadwallader C. Washburn, Henry D. Washburn, William B. Washburn, Welker, Whittemore, Thomas Williams, William Williams, Stephen F. Wilson, Windom, and Woodbridge—160. NOT VOTING—Messrs. Adams, Ames, Anderson, Archer, Baldwin, Barnes, Barnum, Blackburn, Roderick R. Butler, Reader W. Clarke, Cornell, Dickey, Dixon, Dodge, Edwards, Farnsworth, Glossbrenner, Haughey, Hill, Holman, Asahel W. Hubbard, Richard D. Hubbard, Ingersoll, Kitchen, Knott, McCarthy, Morrissey, Nicholson, Pettis, Pile, Pomeroy, Stevens, John Trimble, Lawrence S. Trimble, Vidal, Elihu B. Washburne, James F. Wilson, and Wood—38. So the amendment was rejected. The question then recurred on ordering the joint resolution to be engrossed. Mr. Woodward demanded the yeas and nays. Mr. BROOKS. I demand a division of the question. The SPEAKER. There can be no division of a bill or a joint resolution, although there may be of a single resolution. Internal improvement bills are specially excepted by the rules, and there may be a division on the engrossment of each item. Mr. BROOKS. Will the gentleman from Massachusetts yield to me to have a vote on my amendment for the enfranchisement of women and children over twelve years of age? Mr. BOUT WELL. The gentleman is not serious in that inquiry. The yeas and nays were ordered. The question was taken; and it was decided in the affirmative—yeas 144, nays 45, not voting 33; as follows; YEAS—Messrs. Allison, Arnell, Delos R. Ashley, James M. Ashley, Bailey, Baldwin, Banks, Beaman, Beatty, Ben­ja­min, Benton, Blaine, Blair, Boles, Boutwell, Bowen, Boyden, Bromwell, Broomall, Buckland, Buck­ ley, Benjamin F. Butler, Cake, Callis, Churchill, Sidney Clarke, Clift, Cobb, Coburn, Corley, Covode, Cullom, Dawes, Delano, Deweese, Dockery, Dodge, Driggs, Eck­ ley, Edwards, Eggleston, Ela, Thomas D. Eliot, James T. Elliott, Farnsworth, Ferriss, Ferry, Fields, French, Garfield, Goss, Gove, Gravely, Griswold, Hamilton, Harding, Heaton, Higby, Hooper, Hopkins, Chester D. Hubbard, Hulburd, Hunter, Jenckes, Alexander H. Jones, Judd,

Julian, Kelley, Kellogg, Kelsey, Ketcham, Koontz, Laflin, Lash, George V. Lawrence, William Lawrence, Lincoln, Loan, Logan, Loughridge, Lynch, Marvin, Maynard, Mc­ Kee, Mercur, Miller, Moore, Moorhead, Morrell, Mul­lins, Myers, Newcomb, Newsham, Norris, Nunn, O’Neill, Orth, Paine, Perham, Peters, Pierce, Pike, Pile, Plants, Poland, Price, Prince, Raum, Robertson, Roots, Sawyer, Scofield, Selye, Shanks, Shellabarger, Smith, Starkweather, Stewart, Stokes, Stover, Sypher, Taffe, Taylor, Thomas, John Trimble, Trowbridge, Twichell, Upson, Van Aernam, Burt Van Horn, Robert T. Van Horn, Van Wyck, Ward, Cadwallader C. Washburn, Henry D. Washburn, William B. Washburn, Welker, Whittemore, Thomas Williams, William Williams, James F. Wilson, Stephen F. Wilson, Windom, and Woodbridge—144. NAYS—Messrs. Archer, Axtell, Baker, Barnum, Beck, Bingham, Boyer, Brooks, Burr, Cary, Chanler, Eldridge, Fox, Getz, Golladay, Grover, Haight, Hawkins, Hotchkiss, Humphrey, Johnson, Thomas L. Jones, Kerr, Knott, Marshall, McCormick, Mungen, Niblack, Nicholson, Phelps, Polsley, Pruyn, Randall, Robinson, Ross, Sitgreaves, Spalding, Stone, Taber, Tift, Van Auken, Van Trump, John T. Wilson, Woodward, and Young—45. NOT VOTING—Messrs. Adams, Ames, Anderson, Barnes, Blackburn, Roderick R. Butler, Reader W. Clarke, Cook, Cornell, Dickey, Dixon, Donnelly, Glossbrenner, Halsey, Haughey, Hill, Holman, Asahel W. Hubbard, Richard D. Hubbard, Ingersoll, Kitchen, Mallory, McCarthy, McCullough, Morrissey, Pettis, Pomeroy, Schenck, Stevens, Lawrence S. Trimble, Vidal, Elihu B. Washburne, and Wood—33. So the joint resolution was ordered to be engrossed and read a third time. ... The question was taken; and it was decided in the affirmative—yeas 150, nays 42, not voting 31; as follows: YEAS—Messrs. Allison, Arnell, Delos R. Ashley, James M. Ashley, Bailey, Baldwin, Banks, Beaman, Beatty, Benjamin, Benton, Blackburn, Blaine, Blair, Boles, Boutwell, Bowen, Boyden, Bromwell, Broomall, Buckland, Buckley, Benjamin F. Butler, Cake, Callis, Churchill, Sidney Clarke, Clift, Cobb, Coburn, Cook, Corley, Covode, Cullom, Dawes, Delano, Deweese, Dockery, Dodge, Donnelly, Driggs, Eckley, Edwards, Eggleston, Ela, Thomas D. Eliot, James T. Elliott, Farnsworth, Ferriss, Ferry, Fields, French, Garfield, Goss, Gove, Gravely, Griswold, Halsey, Hamilton, Harding, Haughey, Heaton, Higby, Hooper, Hopkins, Chester D. Hubbard, Hul492

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burd, Hunter, Jenckes, Alexander H. Jones, Judd, Julian, Kelley, Kellogg, Kelsey, Ketcham, Koontz, Laflin, Lash, George V. Lawrence, William Lawrence, Lincoln, Loan, Logan, Loughridge, Lynch, Marvin, Maynard, McKee, Mercur, Miller, Moore, Moorhead, Morrell, Mullins, Myers, Newcomb, Newsham, Norris, Nunn, O’Neill, Orth, Paine, Perham, Peters, Pierce, Pike, Pile, Plants, Poland, Price, Prince, Raum, Robertson, Roots, Sawyer, Scofield, Selye, Shanks, Shellabarger, Smith, Spalding, Starkweather, Stewart, Stokes, Stover, Taffe, Taylor, Thomas, John Trimble, Trowbridge, Twichell, Upson, Van Aernam, Burt Van Horn, Robert T. Van Horn, Van Wyck, Ward, Cadwallader C. Washburn, Henry D. Washburn, William B. Washburn, Welker, Whittemore, Thomas Williams, William Williams, James F. Wilson, John T. Wilson, Stephen F. Wilson, Windom, and the Speaker—150. NAYS—Messrs. Archer, Axtell, Baker, Barnum, Beck, Bingham, Boyer, Brooks, Burr, Cary, Chanler, Fox, Getz, Golladay, Grover, Haight, Hawkins, Hotchkiss, Humphrey, Johnson, Thomas L. Jones, Kerr, Knott, Marshall, McCormick, Mungen, Niblack, Nicholson, Phelps, Polsley, Pruyn, Randall, Robinson, Ross, Sitgreaves, Stone, Taber, Tift, Van Auken, Van Trump, Woodward, and Young—42. NOT VOTING—Messrs. Adams, Ames, Anderson, Barnes, Roderick R. Butler, Reader W. Clarke, Cornell, Dickey, Dixon, Eldridge, Glossbrenner, Hill, Holman, Asahel W. Hubbard, Richard D. Hubbard, Ingersoll, Kitchen, Mallory, McCarthy, McCullough, Morrissey, Pettis, Pomeroy, Schenck, Stevens, Sypher, Lawrence S. Trimble, Vidal, Elihu B. Washburne, Wood and Woodbridge—31. So (two thirds having voted in favor thereof ) the joint resolution was passed.*

10 US Senate, Suffrage and Office Holding Amendment, Debate February 4, 1869†

The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 402) proposing an amendment to the Constitution of the United States. ... Mr. WARNER. Mr. President, I have proposed an amendment to the joint resolution now before the Senate, in the following words: That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid as part of the Constitution, namely:

Article XV. Section 1. The right of citizens of the United States to hold office shall not be denied or abridged by the United States or any State on account of property, race, color, or previous condition of servitude; and every male citizen of the United States of the age of twenty-­one years or over, and who is of sound mind, shall have an equal vote at all elections in the State in which he shall have actually resided for a period of one year next preceding such election, except such as may hereafter engage in insurrection or rebellion against the United States, and such as shall be duly convicted of treason, felony, or other infamous crime. Sec. 2. Congress shall have power to enforce this article by appropriate legislation.

... I think that it is a proposition too clear for argument that to the people, the whole people, the nation, belongs the decision of the question who shall exercise political power—in other and plainer words, who shall vote and

* [The Senate received Boutwell’s version of the suffrage amendment on January 30, 1869. See Cong. Globe, 40th Cong., 3rd Sess., 740 (1869). —Ed.]

† Cong. Globe, 40th Cong., 3rd Sess., 854, 861–64 (Feb. 4, 1869). 493

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hold office. And I think that it is equally clear that, to be true to our system and to the ideas upon which it is based, we must conclude that all men of sound mind are entitled to these rights. To allow States to determine who of the citizens of the nation shall have political power is to give away the most essential and vital attribute of sovereignty— to concede a power which may be used to build up an aristocracy or to change and destroy our system of government. To give to States the power to disfranchise and disqualify for crime is a very limited and possibly not dangerous concession; but that a citizen living in Massachusetts should lose his right to vote for President by moving to Connecticut, or that different qualifications for voting for President, for instance, should be required in different parts of the country, is so manifestly wrong and so clearly at variance with that provision of the Constitution which declares that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” that it needs but to be stated to be condemned. Now, what are the words proposed by the committee to be put into the Constitution to settle this vital question? They are as follows: No State shall deny or abridge the right of its citizens to vote and hold office on account of race, color, or previous condition.

To propose to put into the Constitution any words which shall control the action of the States in this matter is to concede the great principle for which I argue, that to the nation belongs the determination of the question who shall have political power. Then the only question remaining is, do these words settle it aright? Let us examine the force and scope of this provision. First, it does not determine who shall vote and hold office. Secondly, it does not protect any class of citizens against disfranchisement or disqualification. It simply and only provides that certain classes indicated shall not be disfranchised or disqualified for certain reasons, namely, race, color, or condition. For any other reason any State may deprive any portion of its citizens of all share in the Government. The animus of this amendment is a desire to protect and enfranchise the colored citizens of the country; yet, under it and without any violation of its letter or spirit, nine tenths of them might be prevented from voting and holding office by the requirement on the part of the States or of the United States of an intelligence or property qualification.

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Is this the Dead sea fruit which we are to gather from the plantings of a hundred years? Is this to be the sum of the triumph of the grand struggle of a century past in this country for equal rights, a struggle whose pathway is marked by the graves of unnumbered martyrs, and whose culmination rocked the Republic to its base and reddened a thousand fields with the blood of its best sons? Lame and impotent conclusion. You fail to protect the only classes of your citizens who need protection. Knowledge is power. Wealth is power. The learned and the rich scarcely need the ballot for their protection. The great farmer who has his three to five score laborers has a power and influence which no law can take away. It is his landless and dependent tenants, in their cabins and in their ignorance, who need the ballot for their safety. The millionaire in his money, and the man of education in his knowledge and his brain, have each a power in government greater than a hundred ballots, a power which the Constitution neither gives nor can take away. It is the poor, unlearned man, who has nothing but the ballot, to whom it is a priceless heritage, a protection and a shield. Mr. President, now that the grand opportunity occurs of settling this question of equal rights, I would improve it to put into the organic law provisions which shall determine the qualifications of electors, and give to every citizen the right to vote, thus making suffrage uniform, equal, and universal, and putting it out of the power of the small portion of the people living within the bounds of each single State to make a different rule. Surely none less than the whole people of the nation should have the right to say who shall be their partners in the Government; and, as one of the people, I am in favor of giving equally to all citizens of the Republic of sound mind and unstained by great crimes the right to vote and hold office. Mr. President, I would admit woman, the most beautiful, the purest and best of God’s creations, to an equal voice with us in the Government. As she is now the sharer of all our pleasures, the partner of all our joys, I would have her share with us the powers, the duties, and the responsibilities of government. Suppose, Mr. President, that one of the many sorrow-­stricken women made widows by the late war should walk into this Chamber and say, “Senators, my husband and two sons lie in yonder national cemetery—their graves marked, cared for, cherished gratefully and tenderly by the nation—as the last resting-­place of the heroic defenders of

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its life. I have no husband, no son, no brother, no father, no man left to represent me. I pay taxes; every law you pass affects me and mine, and I demand a voice in this Government.” What answer shall you give her? But I know that woman’s suffrage is not now attainable, and I would not, as a practical legislator, jeopardize the good which is attainable by linking with it that which is impossible. Besides, whenever the women of this country ask with anything like unanimity for the ballot they will get it. While no man puts a higher estimate on the value of intelligence in the people than I do, and while no one would do more than I would to encourage the education of the masses, I repeat that it is the disfranchisement and oppression of the poor and the ignorant which it is our duty to guard against. In protecting the poor and the unlearned you are protecting the great laboring, industrial classes of the country. It is these who have made your State, who have felled your forests, worked your mines, dug your canals, built your habitations and churches and school-­houses and colleges, laid your railroads, made your engines and your implements, beautified and adorned and made pleasant your homes, tilled your soil and filled your granaries, and sent with resistless force the life currents through all the arteries of trade; who have placed the Republic in her present proud rank among the nations, and who mainly filled the ranks of your Army in the late war, and carried your “banner of beauty and glory” to final and glorious victory. Their brawny arms and strong sinews have wrought out our wealth; upon their broad and stalwart shoulders rest the fabric of our Republic, its government, its laws, its institutions, its civilization. Their stout arms bear forward the car of progress, freighted with the highest hopes of humanity and the word of God, and they have a right to a voice in the Government, whether or not their poverty and their toil have given them opportunities to learn to read and write. The irresistible drift of modern civilization is toward a larger and larger enfranchisement of the people, and our end is a pure democracy. Let us proceed to it with firm and decisive steps. Then we will have no disfranchised, disaffected, clamoring classes always ready and ripe for tumult, rebellion, and revolution. Then the will of the people, legally and peacefully expressed, will have a weight and a power which will command and insure universal acquiescence and obedience. We are relaying the very corner-­stone of our temple of liberty. Let us see that its proportions are broad, true,

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and ample, and its material indestructible. Our fathers laid the foundation of our Government upon the rock of truth and justice when they proclaimed to the world, in their immortal Declaration, that “all men are created equal”—not made so by laws and constitutions but by the Creator; but they built badly, though perhaps of necessity, when they countenanced slavery in the provision relating to fugitives. Let us profit by their error, and, enlightened by the experience of eighty years and warned by that experience of the terrible retribution which surely and inevitably follows compromise of truth and justice, follow our principles to their logical conclusion and found this nation on the rock of universal equal human rights, thus settling forever the questions which, never settled aright, have risen again and again to disturb and finally to desolate our beautiful land. Our great Chief Magistrate-­ elect has wisely and nobly said, “Let us have peace.” This is the way to it. The signs of the times are auspicious. From the disturbed and stricken south-­land come with every breeze the evidence of returning reason, loyalty, and good feeling. We are gladdened with the sight of “half forgotten humanity bursting out of the depths in which it has pursued its joyless, sunless course, moaning and murmuring through long centuries, but never quite forgetting its divine origin.” The tide of beneficent migration is rapidly setting toward her sunny and fertile fields. Our people, from lakes to gulf and from ocean to ocean, are full of hope and energy. Let us, their representatives and servants, act up to our and their best impulses, and the nineteenth century will close upon us the freest, the strongest, and the best nation on earth. ... Mr. MORTON. ... Now, Mr. President, I propose to speak for a few minutes in regard to the language of this amendment. I will vote for the amendment as it came from the House of Representatives, or I will vote for the clause as reported by the Judiciary Committee in the Senate if I can get no better form; but I desire to say that it comes far short of what should now be the action of Congress on this subject, in my opinion. The resolution as it came from the House and the amendment reported by the Committee on the Judiciary are in substance the same, differing somewhat in phraseology. The amendment of our committee is:

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The right of citizens of the United States to vote and hold office shall not be denied or abridged by the United States, or any State, on account of race, color, or previous condition of servitude.

It will be observed that this language admits or recognizes that the whole power over the question of suffrage is vested in the several States except as it shall be limited by this amendment. It tacitly concedes that the States may disfranchise the colored people or any other class of people for other reasons save and except those mentioned in the amendment. They cannot be disfranchised by reason of race, color, or previous condition of servitude. In other words, it leaves all the existing irregularities and incongruities in suffrage. I have entertained the idea that when we came to amend the Constitution upon this subject we ought to make suffrage uniform throughout the United States; that the same class of men should be allowed in every State to vote for President and Vice President, and members of Congress, and members of the State Legislatures that elect Senators; that the same class of men excluded in one State ought to be excluded in every other State. In other words, I think suffrage ought to be uniform. In the State of Indiana a man of foreign birth, who has been in the United States one year and in the State of Indiana six months, and who has declared his intention to become a citizen of the United States, is allowed to vote for President, Vice President, members of Congress, and State officers. Just over the line, in the State of Ohio, the same man would not be allowed to vote unless he had been in the country five years and had become fully naturalized. Here is a class of men taking part in the government of the country in one State who are excluded in the next State. I am not discussing the propriety or impropriety of these regulations, but I am speaking of their inconsistencies. In the State of Massachusetts, for instance, they have an educational test; in the State of Rhode Island, if I am correctly informed, there is a property qualification. The population of that State is so numerous that the voting ratio must be reduced by requiring a property qualification. In some States a residence of six months is required; in other States a residence of twelve months is required, and perhaps there may be some other conditions of suffrage prescribed. In the State of New York I believe that colored men are allowed to vote if they are worth $250 in real estate. Now, sir, when we come to amend the Constitution of the United States on this subject, would it not be

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proper to make suffrage uniform? And it is as easy to amend it in the one way, I believe, as it is in the other. This amendment leaves the whole power in the States just as it exists now, except that colored men shall not be disfranchised for the three reasons of race, color, or previous condition of slavery. They may be disfranchised for want of education or for want of intelligence. The States of Louisiana and Georgia may establish regulations upon the subject of suffrage that will cut out forty-­ nine out of every fifty colored men in those States from voting, and what may be done in one of these States may perhaps be done in others. They may, perhaps, require property or educational tests, and that would cut off the great majority of the colored men from voting in those States, and thus this amendment would be practically defeated in all those States where the great body of the colored people live. Sir, if the power should pass into the hands of the rebel population of those States—­ perhaps I should beg pardon now, I should rather call it the Conservative or Democratic population—if they could not debar the colored people of the right of suffrage in any other way they would do it by an educational or a property qualification. Mr. President, I am not sure, on looking further at this amendment, but that the language itself can be dodged without establishing either a property qualification or an educational test. Take the State of Kentucky, Maryland, or any of these States choosing to do so; may they not dodge it? It says the right of citizens of the United States to vote and hold office shall not be denied or abridged by any State or by the United States “on account of ”—“by reason of ” is the language of the amendment of the House—“race, color, or previous condition of servitude.” I should suppose that the words “race or color” would be sufficient. I am somewhat averse to putting the word “color” into the Constitution. I am somewhat averse to making any reference to slavery in the Constitution. Mr. FESSENDEN. “Servitude.” Mr. MORTON. “Servitude” is the word used in the amendment proposed by the committee of the Senate; but “previous condition of slavery” is the phrase employed in the amendment coming from the House of Representatives. Mr. DRAKE. I suggest to the honorable Senator from Indiana that “slavery” is the second word in the thirteenth amendment. Mr. MORTON. That was when it came to abolish it. Mr. DRAKE. Yes, sir.

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Mr. MORTON. But it found admission there for that purpose and no other. Now, Mr. President, why is it necessary to insert these words, “or previous condition of servitude” or “slavery?” It says they shall not be debarred of the right of suffrage on account of race or color or previous condition of servitude. It is because some of these States might say, “We will debar these men from voting, not on account of their race, not on account of their color, but because they have once been slaves.” Suppose that one of these States should say, “We will debar these men from voting, not by reason of color or race or previous condition of slavery, but because they are deficient in natural intelligence, incapable of improvement, and incompetent to take a part in the administration of the Government.” If they put it upon that reason it might be perhaps a strained construction amendment; but we ought not now to be providing an amendment that is susceptible of a double construction. They say they do not disfranchise these men on account of their color, race, or having been slaves, but because they are naturally inferior in point of intellect, and unqualified to take part in the administration of the Government. I am not sure but that in that way the whole provision may be dodged. That is just the position taken by the great body of the southern people. If you will ask them their opinion of the colored race, they will tell you that they are an inferior race, and hardly human beings, and disqualified from taking part in the administration of the Government; and if they put that in their constitutions, and give that as a reason, it becomes a question whether they have not dodged the whole provision. We would deny the truth or soundness of their reason; but they would insist on it, and claim that it is not provided against in the amendment. Now, Mr. President, I would prefer an affirmative amendment, an amendment declaring who shall have the right to vote, not a negation but an affirmation, and one that defines the right of suffrage, and does not leave it open for the construction of different States; and I think that if we are not to have an affirmative definition of suffrage the amendment offered by the Senator from Michigan [Mr. Howard] is perhaps as good a one as has been presented, and certainly better than the one that came here from the House; and I will ask the Secretary to read it. The Chief Clerk. The amendment of Mr. Howard proposes to strike out section one of the House article, and insert:

Citizens of the United States of African descent shall have the same right to vote and hold office as other citizens.

Mr. MORTON. That pertains simply to citizens of African descent. This amendment refers also only to citizens of African descent; but that gives them an affirmative right, says they shall have the same right to vote that other citizens have. It therefore cuts off every possible construction of the amendment as it came from the House of Representatives, or the one offered by the committee, by which they could be debarred from the right of suffrage. It places these men precisely upon the same ground with all others; but it still leaves the States the power of establishing an educational or property test by which they would cut off the great mass of colored men. I think this is the best of the three, but that it would be still better to adopt an amendment declaring who shall have the right to vote, making it uniform throughout the United States, and leaving no question of construction for the States. Mr. WILLIAMS. Mr. President, I send to the Chair an amendment which I shall propose to the report of the Committee on the Judiciary in due time, and I ask that it be read for information. The Chief Clerk. The amendment now submitted proposes to strike out all after the words “article fifteen” and insert: Congress shall have power to abolish or modify any restrictions upon the right to vote or hold office prescribed by the constitution or laws of any State.

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Mr. WILLIAMS. Mr. President, I propose briefly to discuss the merits of this amendment which I have submitted, but I should prefer, if it should suit the Senate, to go on to-­morrow morning. Mr. MORRILL, of Maine. If the Senator will yield to me, I will ask the Senate to take up a bill reported from the Committee on Appropriations yesterday. It will not occupy more than a few minutes at most, which is to make an appropriation to pay the clerks in the Patent Office for the last month and the present. It is House bill No. 1809. The PRESIDENT pro tempore. The proposition is to pass over the special order informally for the purpose of taking up that bill. Does any Senator object? No objection being made, the bill is before the Senate. Mr. DRAKE. I ask to have printed an amendment which I intend to propose to the pending resolution

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from the House of Representatives for the amendment of the Constitution, as a substitute for the first section. The proposed amendment was ordered to be printed. Mr. POOL submitted an amendment intended to be proposed to the joint resolution (H.R. No. 402) proposing an amendment to the Constitution of the United States; which was ordered to be printed.

to be found in the State constitutions at the adoption of the National Constitution, and, as all these, except Massachusetts, recognized slavery, they find that the denial of Human Rights is republican. But the champions forget that slavery was regarded as a temporary exception; that the slave, who was not represented, was not taxed; that he was not a part of the “body-­politic;” that the difference at that time was not between white and black, but between slave and freeman; that all freemen without distinction of color were citizens, and that according to the history of the times, there was no State which ventured to announce in its Constitution a discrimination founded on color, except South Carolina, the persevering enemy of republican government for successive generations, so that if we look at the State constitutions, we find that they also testify to the true definition. Here are words of authority, which the champions forget also. They forget that the Federalist in commending the Constitution, at the time of its adoption, insisted, that, if the slaves became free, they would be entitled to representation. I have quoted the striking words before, and now I quote them again:

11 US Senate, Suffrage and Office Holding Amendment, Speech of Charles Sumner February 5, 1869*

Mr. SUMNER. I send to the Chair an amendment in the nature of a substitute for the joint resolution (H.R. No. 402) proposing an amendment to the Constitution of the United States now pending, being to strike out all after the enacting clause, and insert what I send to the Chair. I send it now merely to move that it be printed. The motion was agreed to. ... Mr. SUMNER. In the construction of a machine the good mechanic seeks the simplest process, producing the desired result with the greatest economy of time and force. I know no better rule for Congress on the present occasion. We are mechanics, and the machine we are constructing has for its object the conservation of Equal Rights. Surely, if we are wise, we shall seek the simplest process, producing the desired result with the greatest economy of time and force. How widely Senators are departing from this rule will appear before I have done. ... Listening to the champions of Caste and Oligarchy under the National Constitution, and perusing their writings, I think that I understand the position which they take. With as much calmness as I can command, I have noted what they have to say in speech and in print. I know it all. I do not err when I say, that this whole terrible and ignominious pretension is traced to a direct and bare-­faced perversion of the National Constitution. ... I know well the arguments of the champions. They insist that the definition of a republican government is * Cong. Globe, 40th Cong., 3rd Sess., 897, 902–4 (Feb. 5, 1869).

“It is only under the pretext that the laws have transferred the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants.”—The Federalist, No. 54, by Hamilton.

The champions also forget that in the debates on the adoption of the national Constitution it was charged by its opponents and admitted by its friends that Congress was empowered to correct any inequality of suffrage. I content myself with quoting the weighty words of Madison in the Virginia Convention:

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“Some States might regulate the elections on the principle of Equality, and others might regulate them otherwise.” * * * * “Should the people of any State, by any means, be deprived of the right of suffrage, it was judged proper that it should be remedied by the General Government.” * * * * “If the elections be regulated properly by the State Legislatures, the congressional control will very probably never be exercised. This power appears to be satisfactory and unlikely to be abused as any part of the Constitution.”—Eliot’s Debates, vol. iii, p. 347.

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The champions also forget that Chief Justice Taney in that very Dred Scott decision, where it was ruled that a person of African descent could not be a citizen of the United States, admitted that, if he were once a citizen, that is, if he were once admitted to be a component part of the “body-­politic,” he would be entitled to the equal privileges of citizenship. Here are some of his emphatic words: “There is not, it is believed, to be found in the theories of writers on government or in any actual experiment heretofore tried an exposition of the term citizen, which has not been considered as conferring the actual possession and enjoyment or the perfect right of acquisition and enjoyment of an entire equality of privileges, civil and political.”—19 Howard, 476.

Thus from every authority, early and late, from Hamilton, writing in the Federalist, from Madison, speaking in the Convention at Richmond, from Taney, presiding in the Supreme Court of the United States, is there one harmonious testimony to the equal rights of citizenship. If in the original text of the Constitution there could be any doubt, it was all relieved by the amendment abolishing Slavery and empowering Congress to enforce this provision. Already Congress, in the exercise of this power, has passed a civil rights act. It only remains, that it should now pass a political rights act, which, like the former, shall help consummate the abolition of slavery. According to a familiar rule of interpretation, expounded by Chief Justice Marshall in his most masterly judgment, Congress, when intrusted with any power, is at liberty to select the “means” for its execution. The Civil Rights act came under the head of “means” selected by Congress, and a Political Rights act will have the same authority. You may as well deny the constitutionality of the one as the other. The amendment abolishing slavery has been reënforced by another, known as article XIV, which declares peremptorily, that “no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States,” and again Congress is empowered to enforce this provision. What can be broader? Colored persons are citizens of the United States, and no State can abridge their privileges and immunities. It is a mockery to say, that, under these explicit words, Congress is powerless to forbid any discrimination of color at the ballot-­box. Why, then, were they inscribed in the Constitution? To what end? There

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they stand, supplying an additional and supernumerary power, ample for safeguard against Caste or Oligarchy of the skin, no matter how strongly sanctioned by any State government. But the champions, anxious for State Rights against Human Rights, strive to parry this positive text by insisting that, in another provision of this same amendment, the power over the right to vote is conceded to the States. Mark, now, the audacity and fragility of this pretext. It is true that “where the right to vote is denied to the male inhabitants of a State, or in any way abridged, except for participation in rebellion or crime,” the basis of representation is reduced in corresponding proportion. Such is the penalty imposed by the Constitution on a State which denies the right to vote, except in a specific case. But this penalty on the State does not in any way, by the most distant implication, impair the plenary powers of Congress to enforce the guarantee of a republican government, the abolition of slavery, and that final clause guarding the rights of citizens, three specific powers which are left undisturbed, unless the old spirit of slavery is once more revived and Congress is compelled again to wear those degrading chains which for so long a time rendered it powerless for Human Rights. Mr. President, I make haste to the conclusion. Unwilling to protract this debate, I open the question in glimpses only. But, even in this imperfect way, it is clearly seen, first, that there is nothing, absolutely nothing, in the National Constitution to sustain the pretension of Caste or Oligarchy of the skin, as set up by certain States, and secondly, that there is in the National Constitution a succession and reduplication of powers, investing Congress with ample authority to repress any such pretension. In this conclusion, I raise no question on the power of the States to regulate the suffrage; I do not ask Congress to undertake any such regulation. I simply propose that, under the pretense of regulating the suffrage, States shall not exercise a prerogative, hostile to Human Rights, without any authority under the National Constitution and in defiance of its positive texts. I am now brought directly to the proposed amendment of the Constitution. Of course, the question stares us in the face, why amend what is already sufficient? Why erect a supernumerary column? So far as I know, two reasons are assigned. The first is that the power of Congress is doubtful. It is natural that those who do not sympathize strongly with the Equal Rights of all should doubt. Men ordinarily find in the

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Constitution what is in themselves, so that the Constitution in its meaning is little more than a reflection of their own inner nature. As I am unable to find any ground of doubt, in substance or even in shadow, I shrink from a proposition which assumes that there is a doubt. To my mind the power is too clear for question. As well question the obligation of Congress to guaranty a republican form of government; or the abolition of slavery; or the prohibition upon the States to interfere with the rights and privileges of citizenship, each of which is beyond question, Another reason, assigned for a constitutional amendment is, its permanent character in comparison with an act of Congress which may be repealed. On this head I have no anxiety. Let this beneficent prohibition once find a place in our statute-­book, and it will be as lasting as the National Constitution itself, to which it will be only a legitimate corollary. In harmony with the Declaration of Independence and in harmony with the National Constitution, it will become of equal significance, and no profane hand will touch its sacred text. It will never be repealed. The elective franchise once recognized can never be denied; once conferred can never be resumed. The rule of Equal Rights once applied by Congress under the National Constitution will be a permanent institution as long as the Republic endures; for it will be a vital part of that republican government to which the nation is pledged. Dismissing the reasons for the amendment, I turn to those which make us hesitate to present it for ratification. There are two. The amendment admits that, under the National Constitution, as it is, with its recent additions, a Caste and an Oligarchy of the skin may be set up by a State without any check from Congress; that these ignoble forms of inequality are consistent with republican government; and that the right to vote is not an existing privilege and immunity of citizenship. All this is plainly admitted by the proposed amendment, thus despoiling Congress of beneficent powers and emasculating the National Constitution itself. It is only with infinite reluctance that I can consent to any such admission, which, in the endeavor to satisfy ungenerous scruples, weakens all those texts, which are so important for Human Rights. The hesitation to present the amendment, is increased, when we consider the difficulties in the way of its ratification. I am no arithmetician; but I understand that nobody has yet been able to enumerate the States whose votes can be counted on to assure its ratification

within any reasonable time. Meanwhile this great question, which cannot brook delay—which, for the sake of peace and to complete reconstruction, should be settled at once, is handed over to prolonged controversy in the States. I need not depict the evils which must ensue.

12 US Senate, Suffrage and Office Holding Amendment, Debate February 8, 1869*

Mr. STEWART. I now move that the Senate resume the consideration of the constitutional amendment. The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 402) proposing an amendment to the Constitution of the United States. ... Mr. FRELINGHUYSEN. ... There have been a number of amendments offered to this proposition. One was offered by the Senator from Oregon, [Mr. Williams,] the effect of which was to take the regulation of suffrage from the States and give it to the General Government. I am not prepared to vote for such an amendment now, and unless it should in the future history of this country become necessary I think suffrage is better where our fathers placed it, guarded as we now propose. Of course the recently reconstructed States are subject to the further conditions as to suffrage lately imposed on the renewal of their relations to the General Government. Another amendment from the same Senator is to make this amendment inapplicable to persons of foreign birth. The reason for this proposition, doubtless, is that those States which are on or near to the Pacific coast dread the immigration of Asiatics. I sympathize somewhat with their views. I am not in favor of giving the rights of citizenship or the right of suffrage to either pagans or heathen. I believe that the history of this country, and its laws as well as the spirit of the people, declared just as clearly that this is a Christian as a free country; and I am not in favor of taking steps backward 500

* Cong. Globe, 40th Cong., 3rd Sess., 978–99 (Feb. 8, 1869).

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into the slough of ignorance and of vice, even under the cry of progress. This subject, however, can be regulated in the naturalization laws. That is the place to attend to it. This amendment only secures the right of suffrage to the citizens of the United States. Another amendment has been offered by the Senator from Massachusetts, [Mr. Sumner,] and I do not, in attempting to make a few observations in reply, accept the challenge so gallantly made to all the lawyers of the Senate. The fact is as I listened to him I almost felt sorry that any one knew that I had ever made a livelihood by the practice of that black art. I certainly do not come to accept that challenge. I have no sling; no smooth pebble from the brook—I come to make a suggestion or two, desiring that they may enter the mind of the Senator, and not that any barbed missile shall do him any injury, of which, however, there is no danger. I listened to his argument judicially, for I had formed an opinion somewhat favorable to the view which he advocated; I had even expressed it in the Senate; but in looking at the whole case I cannot reach his conclusions. The proposition of the Senator from Massachusetts is not that a bill shall be introduced and adopted, the validity and constitutionality of which may be tested or which can be enforced; but he proposes to substitute the legislation of Congress for this amendment. To come to the conclusion that such a course would be wise we must be satisfied that beyond doubt the General Government has the constitutional right as against the States to regulate suffrage. Let us see if there is no doubt as to the correctness of that conclusion. The Convention that framed the Constitution had this matter under consideration and concluded that the right to regulate suffrage was and should remain with the States and not with the General Government, and they thought that they so framed the Government. For brevity I will read from Curtis on the Constitution rather than from the State Papers. Mr. Curtis, in his work, says: “Another difficulty which attended the adjustment of the right of suffrage grew out of the widely differing qualifications annexed to that right under the State constitutions, and the consequent dissatisfaction that must follow any effort to establish distinct or special qualifications under the national Constitution. In some of the States the right of voting was confined to “freeholders;” in others—and by far the greater number—it was extended beyond the holders of landed property, and included many

other classes of the adult male population, while in a few it embraced every male citizen of full age who was raised at all above the level of the pauper by the smallest evidence of contribution to the public burdens. The consequences, therefore, of adopting any separate system of qualifications for the right of voting under the Constitution of the United States would have been that in some of the States there would be persons capable of voting for the highest State officers, and yet not permitted to vote for any officer of the United States; and that in the other States persons not admitted to the exercise of the right under the State constitution might have enjoyed it in national elections.” * * * * * * * * The committee of detail, after a review of all these considerations, presented a scheme that was well adapted to meet the difficulties of the case. They proposed that the same persons who, by the laws of the several States, were admitted to vote for members of the most numerous branch of their own Legislatures, should have the right to vote for the Representatives in Congress. The adoption of this principle avoided the necessity of disfranchising any portion of the people of a State by a system of qualifications unknown to their laws.—Curtis’s History of the Constitution, vol. 2, pages 198, 199, 200.

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Then came another difficulty. They said if we leave this subject to the States, they having the right of naturalization, will naturalize foreigners too freely, and they will vote for national officers. To meet this difficulty the whole subject of naturalization was placed in the hands of the General Government; and with this compromise the subject was adjusted. The convention thought they had given the regulation of suffrage to the States. Then, when we look to the tenth article of the amendment we find that it declares that “the powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively or to the people.” And now, to make it perfectly clear that the national Government has the constitutional right to regulate suffrage, so that we can substitute the proposed law of Congress for the amendment, we ought to be able to turn to the place in the Constitution of the United States where the States do delegate affirmatively to the national Government this right; for, at the date of that amendment, it unquestionably was a right belonging to the States. But, in looking at the Constitution, we do not find any

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such affirmative delegation of power; but on the other hand we do find something that looks very much like an affirmative declaration on the part of the national Government that the right still remains with the States, as the Convention intended, for the second section of the first article says that “the House of Representatives shall be composed of members” voted for by electors having “the qualifications requisite for electors of the most numerous branch of the State Legislature.” Some hold that that constitution spoke only at its date, and that at that time all the States, with the exception of South Carolina, gave the ballot without regard to race, and that hence the qualifications requisite for electors of the most numerous branch of the State Legislature were without distinction of race; but by looking into the debates we find that the shape in which this article was reported by the “committee of detail” was “requisite from time to time in the States,” and when it was reviewed those words were probably considered unnecessary, because a fundamental law speaks in presenti, it speaks to-­day as certainly as the day on which it first took effect. We next come to the fourteenth amendment, and under that I at one time thought, and expressed the impression, that we might find the power to regulate suffrage by legislation, but on examination I think the power is not there. It provides that—

being exempt from arrest. It is a right granted by law. And we thus come back to the old Constitution before it was amended, and ask whether there is any right for the national Government to regulate suffrage in the States granted in that instrument? I think there is not. The word “immunity” does not cover what is claimed. An immunity is an exemption from a duty; not the guarantee of a right. But the second section of the fourteenth article of the amendment is quite conclusive on this subject. It provides— “That when the right to vote at any election for the choice of electors of President, &c., 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 crimes, 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 over twenty-­ one.”

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. “No State shall make or enforce any law which shall abridge the privileges and immunities of the citizens of the United States.”

It is a very significant point that that amendment omits the word “rights.” It does not say that “no State shall abridge the rights, privileges, and immunities of citizens of the United States.” The argument of the Senator from Massachusetts, to which I listened with so much pleasure, was based upon the position that it was the natural right of the African as a man, in a republican Government, to have the ballot. If he be correct in this general position, yet the fourteenth amendment does not aid his argument, as it makes no provision for rights by that name; a privilege is a different thing from a right. It is a right granted by law. The nobles of Great Britain have the privilege of being tried by their peers. The members of Parliament have the privilege of

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In other words, the very amendment contemplates, after its adoption, a state of things in which the States will withhold from a certain class of male adults the right to vote, and it does not attach a penalty or a punishment as for a violation of the amendment, but makes simply a provision as to the mode of representation under that state of things. I cannot, therefore, conclude that the fourteenth amendment confers on Congress the right to regulate suffrage. We want a further amendment. I do not desire to be considered as indifferent to this great subject, because I cannot discover our constitutional power where, in my opinion, it does not exist. The most desirable thing is not to possess the greatest liberty or to have the greatest number of rights. It is of much greater importance to have our liberties and our rights secured, guarantied, chartered, written in the Constitution, so that we can maintain them and leave them to our posterity. Therefore I desire to see the important measure we are now considering made a part of the fundamental law of the land. And while speaking of chartered rights, I will say that there is a class of thoughtful men in society who sometimes are thought to be a little technical, sometimes sticking in the bark, but who only do stick in the bark because they find it is a position where they can the better guard and protect that vitality which is at the heart. They are a class of men who have done as much for civil liberty and human rights as the heroes of history; those men are common-­law lawyers.

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... The PRESIDENT pro tempore. The joint resolution (H.R. No. 402) proposing an amendment to the Constitution of the United States is before the Senate as in Committee of the Whole, ... Mr. ABBOTT. ... I have hitherto made no discrimination among the many forms of amendment which have been offered. They mostly tend toward the same purpose. Nearly any one of them would establish the principle which I think ought to be established under our Constitution. But I prefer to all an amendment of the character suggested by the Senator from Indiana, [Mr. Morton,] because it is affirmative and distinct. We ought to select some phraseology which cannot be misunderstood or avoided. I question whether the amendment of my colleague [Mr. Pool] does not come nearer than any other to what is required; and I therefore hope that it will, with some slight modification, be adopted. I have purposely passed over the subterfuges by which it has been attempted to defeat this amendment, such as that of the Senator from Kentucky, [Mr. Davis,] who sets up the objection that all the States are not represented here, and that therefore this action would be null; and such as that of the Senator from Indiana, [Mr. Hendricks,] who contends that the amendment ought to be submitted to a convention; and also such as that of the Senator from Connecticut, [Mr. Dixon,] who contends that the States are independent, and that therefore suffrage cannot be controlled by the United States within their limits. All these ought to be classed among the trivial expedients of politicians rather than among the weighty reasons which should influence the minds of those who constitute the highest branch of the law-­ making power of the nation. I suppose it were better to brush all these special pleadings away, put them into concealment, and look straight forward to the consummation of this amendment. ... Sir, I now desire to say a few words in regard to the apprehensions expressed during this debate that the Federal Government is making too great encroachments upon the reserved rights of the States, and that this proposed amendment is a special evidence of that tendency in the Government. It is said that we are in danger from the centralization of power; that a great consolidated tyranny may arise which will overawe the

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separate States and finally trample upon the rights of the people. I confess that I do not participate in these apprehensions. Our dangers heretofore as a nation and the dangers which have arisen to safe and just government have not arisen from centralization, but from decentralization. Human liberty and the very existence of the nation have been menaced for many years under the guise of States rights. Why should there be danger to the liberties of the people from the General Government? The lower House of Congress is elected directly from the people, and is as purely a representative body as can be found in the world; while the Senate is elected by the governments of States, and is representative also. The chief executive officer of the nation is elected directly by the vote of the people. The Congress and the Government are but an expression of the whole people’s will. There is no basis in its structure on which to found a tyranny. When the people of these States shall be oppressed, and when the nation itself shall break into fragments, I believe it will be, not from the tyranny of the central power, but from the colliding interests and local animosities of sections, even as the universe is not jarred by the sun which hangs forever firmly in space, but by some planet which may burst from its orbit. I believe that the time has arrived when the power of the General Government should be felt within every foot of its territory. I believe that the time has come when it is the duty of the Government to assert its supremacy and protect life and property everywhere in the United States; and if it has not authority enough for the purpose now, I desire to see it conferred. The Republic must be in America the permanent paramount authority. With one suggestion in regard to the amendment offered by the Senator from Pennsylvania, [Mr. Buckalew,] I close. He proposes to attach to this amendment a proposition, proper in itself, relative to the mode of electing President and Vice President. But I prefer that all appendages to the amendment shall be stripped off; that it shall go out alone and unembarrassed; that its words of light may fill a single article. If any change is to be made in the mode of electing President, let us adopt the plan of the Senator from Massachusetts, abolish the Electoral College, and provide for giving the ballot directly to the candidates. ... Mr. WELCH. Mr. President, I desire to offer a mere fragment of thought, not by any means wearisome in length, but bearing upon a point not, as it seems to me, sufficiently noticed by those who favor the mea-

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sure before the Senate. I should hesitate to prolong this discussion even by the few minutes I shall venture to occupy if the reasons which may be urged for the adoption of the proposed amendment had been completely stated, leaving the general argument of right of Congress to pass this amendment to others. I propose to address myself to the answering of a specific objection to negro suffrage, which has been reiterated in various phraseology during the last three days. This objection, stripped of its verbiage and stated syllogistically, reads as follows: intelligence and virtue are indispensable to the safe exercise of the right of suffrage; the African race in their country is inferior in respect to intelligence and virtue; and consequently it should be denied the right of suffrage. Now, the fallacy of this reasoning ought to be apparent upon its simple statement. The premise with which it starts nobody denies. It is, indeed, an axiom lying at the basis of our republican Government and national prosperity. But intelligence and virtue are not the distinctive characteristics of races; they are not peculiar to any race; they are not monopolized by nor wholly excluded from any people on the round earth. Intelligence and virtue are individual possessions, inconstant qualities varying ad infinitum among the individuals of every people, attaining their highest manifestations in the great and the good and being partially or wholly wanting in the degraded and the vicious. Those constant qualities which mark the different races are mainly physical, consisting of peculiarities of color, feature, figure, and the like; but as these peculiarities are not the qualifications for the voter, nor indicate the presence or absence of such qualifications, they cannot without absurdity be assumed as the ground for withholding or bestowing the right of suffrage. I do not share the prejudice of Senators against race; my prejudices are for or against individuals according to their merits or demerits. But suppose the question of the inferiority or superiority of races be admitted as possible or pertinent to this discussion, we need not shrink from such conclusions as can be reached. In what respects, let us ask, are the southern negroes, for example, inferior to the southern whites? They are certainly in social position far below a large class of white citizens, but they are, on the other hand, the social peers of another class found everywhere throughout the South. But social distinctions, whatever they are, do not confer political privileges in this free land; otherwise American women who are our social superiors would outrank us all. Then, again, as

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to intelligence the freedman holds the same relative position as in regard to social standing. We grant that he is inferior intellectually to the educated whites. It is the legitimate fruit of slavery and not a defect of race. But if he be inferior to one class, he is most assuredly equal or even superior to that other class known as the poor whites; and if his intelligence in general be limited, it is encouraging to know that there are many exceptions, instances of learning and culture, which indicate capacity. The present secretary of State of Florida is a gentleman of talent and learning, and yet he is an African pure and simple. The important question, however, is not as to the comparative, intellectual or social status of the negro, for intelligence and refinement and social elevation alone do not avail to make the genuine American citizen. The crowning virtue of American citizenship is patriotism. Nothing is more clearly written in the history of the immediate past than that intellect becomes the instrument of treason when patriotism is wanting. Just here the southern negro appears to decided advantage. He possesses this indispensable virtue. Intellectually and socially below the dominant class, but equal, at least, to the poorer class of southern whites, he is, if we except the southern loyalists, who are limited in number, infinitely superior to them all as a patriot; and I weigh my words well when I say that if his ignorance were as rayless as the darkest midnight, if he never had a dozen thoughts in all his life and never changed their course, his steady, unflinching love of this Union would render him a far safer depositary of the right of suffrage than he who has compassed all knowledge and all science and hates his country. If, then, the characteristics of race are not the qualifications of voting nor indicates the presence or absence of these qualifications; if that special intelligence which perceives that honesty and faithfulness to our national flag is the best policy is a better quality in the citizen than any degree of intelligence that fails to perceive this; if a love of the Union that has never failed or flinched in time of trial is superior to any general virtues where patriotism is wanting; if all these constitute the qualifications for the exercise of the elective franchise, then I earnestly hope that an amendment will pass which, when ratified by the requisite number of States, will secure to the negro the right of suffrage now, henceforth, and forever. ... Mr. HOWARD. ...

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It will not escape the attention of any man that there is an anomaly in the Constitution of the United States. While to all other Governments that I know of in the world, properly called governments, pertains the faculty of regulating and prescribing the qualifications of voters, it is a very singular fact that no such faculty belongs to the Government of the United States. ... The sole object of this whole proceeding is to impart by a constitutional amendment to the colored man who has become free in the United States the ordinary right of citizens of the United States, and that is the whole of it. . . . More than four millions of that race have become emancipated, and are now enjoying, under an act of Congress and under an amendment of the Constitution of the United States the rights of citizens of the United States. We have made them such. Whether it be for their benefit or our benefit, for their disadvantage or our disadvantage, the fact has become fixed; they are free and are citizens of the United States, endowed with all the civil rights which belong to white men who are citizens of the United States, and the only question now before us and before the country in reference to them is, shall they not only be allowed their civil rights, but shall they for all future time find in the Constitution of their country a guarantee of their political rights as citizens and as political equal with you and me? Sir, it is impossible in the very nature of things that so large a portion of citizens of the United States as the black portion now are can for any considerable length of time remain in our midst without enjoying the right of suffrage. That would be a great anomaly in our condition. It would be a state of things entirely inconsistent with the genius and mild, beneficent, democratic spirit of our Government. ... Mr. DAVIS. Mr. President, my honorable friend from Indiana [Mr. Morton] referred to myself, in connection with other Senators, as having given some support to the doctrine of nullification. I choose, at this late hour of the evening, to disclaim that that is my position. My position is simply this: according to proper language, there is no sovereignty in the United States or in any of the States; the sovereignty rests with the people. The people divided their sovereignty, and they delegated it to two Governments; that is, to two classes of Governments. They delegated a portion of it to the Government of the United States by the Constitution. The rest of the sovereignty of the people of the United States is

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in the people respectively of the States. My position is, that as to the sovereignty and powers delegated by the Constitution of the United States to the Government of the United States, the Government of the United States and the United States are a nationality. Within the scope and operation of all the sovereignty and of all the power delegated by the Constitution to the United States, the United States exercises the full and entire sovereignty delegated to it by the people in the Constitution. My other position in relation to that subject is, that as to the sovereignty not delegated by the Constitution to the people but reserved to the States the States are sovereign; and the States are as much sovereign, within the scope of their reserved sovereignty and powers, as the Government of the United States; and the United States are sovereign within the sphere of the powers delegated to the United States and to the Government of the United States by the Constitution. I hope that my position is understood. That distinction has been taken repeatedly and sustained by the judgments of the Supreme Court. There is not a commentator upon the Constitution of the United States, from the Federalist and Hamilton and Madison down, that does not recognize the same partition of sovereignty and the same exclusive and paramount authority of the States as to all the sovereignty and power reserved by them, and so of the United States in relation to all the sovereignty and powers delegated to the United States by the Constitution. Mr. HOWARD. If the honorable Senator from Kentucky will allow me to say a word, I am not entirely certain that I fully comprehend his idea of sovereignty. He speaks of sovereignty as resting in the people. Let me inquire of the honorable Senator what people he refers to—the whole people of the United States, constituting in and of themselves an imperial popular community? Are those the people in whom the ultimate supreme sovereignty rests, or is it in the people of the several States? Mr. DAVIS. I will answer the question of the honorable Senator. Mr. HOWARD. I should like to have a further explanation. I know the honorable Senator intended to make himself understood and it is very important to me that I should clearly understand him, because it strikes me he is advancing something new. Mr. DAVIS. If the honorable Senator will allow me, I will endeavor to make myself explicit. My position is, that as to powers delegated to the United States and the

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Government of the United States by the Constitution, that portion of the sovereignty belongs to all the people of the United States; that it is a delegated sovereignty from all the people of the United States to that extent. So far as the sovereignty and powers of Government are not delegated by the Constitution to the United States and the Government formed by the Constitution, that sovereignty belongs as exclusively to the people of the States as it did before the formation of the Constitution. Mr. HOWARD. Then I will inquire whence the honorable Senator derives that doctrine? Is it from the history of the American nation, or is it from the Kentucky resolution of 1798? Mr. DAVIS. I will inform the honorable Senator. I derive it from the Constitution; I derive it from the treatises upon the Constitution by the men who made it; I derive it from Hamilton and Madison, from Kent and Story and Marshall, and every other great light and luminary of the Constitution. I will read a paragraph from Madison’s letters on this subject: “It has been too much the case in expounding the Constitution of the United States that its meaning has been sought not in its peculiar and unprecedented modification of power, but by viewing it some through the medium of a simple Government, others through that of a mere league of Governments. It is neither the one nor the other; but essentially different from both. It must consequently be its own interpreter. No other Government can furnish a key to its true character. Other Governments present an individual and indivisible sovereignty. The Constitution of the United States divides the sovereignty; the portions surrendered by the States composing the Federal sovereignty over specific subjects; the portions retained forming the sovereignty of each over the residuary subjects within its sphere.”

In the case of McCulloch vs. The State of Maryland, Chief Justice Marshall decides that all powers of government appertain to sovereignty. He decides explicitly that the charter of a bank of the United States is an exercise of sovereignty, and he says in the most explicit language that all exercise of political power is an exercise of political sovereignty. Now, my position is simply this: that the portion of it yielded up by the people of all the States, as enumerated in the Constitution, is an emanation from the people of all the States, acting by States, to the United States and to the General Govern-

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ment; that so far as sovereignty is not delegated by that instrument to the United States and to the Government formed by the Constitution that sovereignty is retained by the States; and it is as distinctively, as peculiarly, and as exclusively their right now as it was before the formation of the Constitution, and the Supreme Court have so decided in repeated cases. Now, Mr. President, while I am up I will add another word or two. I have taken the position in my argument that Congress has no power to propose an amendment to the Constitution that would revolutionize the essential nature and character of the Government formed by the Constitution. My further position is, that the proposed amendment does revolutionize the distinctive and peculiar character of the Government; that the Government of the United States is not a single Government; that it is a mixed Government of the United States and the people of the States. The honorable Senator from Michigan I presume comprehends me, if I have made myself distinct. I then say that, as a part and parcel of our system of government, the government of the States is as essential as the Government of the United States; that it can no more be dispensed with without a revolution and an overthrow of our mixed system of State and of Federal Government than could the Government formed by the Constitution of the United States be overthrown without a revolution. I say here, and I maintain as a principle asserted by all the men who assisted in forming the Constitution and who have given any exposition on it, and by every able and accepted commentator on the Constitution, that the government of the States is as much a part of our complex and mixed system of government as the Government of the United States; and in conformity to that principle I assert, as a true proposition, that it would no more change or revolutionize our system of government to destroy the Government of the United States than it would to destroy the governments of the States. Now, Mr. President, I advance another step in my argument. I say that a proposition made in Congress to amend the Constitution of the United States by abolishing the United States Government would not come within the scope of the power of Congress to propose amendments to that instrument. I say it would be revolutionary and destructive of our system; and that a power to propose amendments to our system does not involve and cannot carry a proposition to destroy the system. I therefore say that if this proposition was

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to propose an amendment to the Constitution of the United States by which the Government created by that Constitution should be abolished, such a proposition as that would wholly transcend the power of Congress to propose amendments to the Constitution. I assert, as the parallel of that position, that the governments of the States being as necessary, as constitutional, and as proper a portion of our system as the Government of the United States, a proposition to abolish, to destroy, to abrogate the governments of the States it is not competent for Congress to make under the guise of executing the power to propose amendments to the Constitution. That is my position. I say that if the proposition was to create a Presidency for life, with succession to his son, Congress has no power, under the article that is professed to be pursued now, to make such a proposition. Mr. HOWARD. If the Senator will allow me, would it be revolutionary and destructive of the Constitution to extend the presidential term from four years to six, as the confederate government did, or to ten, fifteen, or twenty years, in case the people should see fit to do so? Mr. DAVIS. I will answer that question. If the honorable Senator will put his questions in fewer words I shall be very much obliged to him. The PRESIDENT pro tempore. There is too much noise in the Chamber. Senators are inattentive to the discussion of this new and important question of the sovereignty of the States. Mr. DAVIS. I say the proposition to amend the Constitution by extending the presidential term would not be a revolution; it would not alter the essential nature of our Government; but I will tell the Senator what proposition would be of that character. If he was to propose now, as an amendment to the existing proposition, that Senators should hold their offices during their lives, and upon the death of each Senator his place should descend to his eldest son, such a proposition as that would be revolutionary, and it is not competent for Congress under its power to propose amendments to offer any such proposition as that. It would be no less revolutionary to abolish the State governments than to take either of the steps that I have indicated. It would be a subversion, a revolution, an overthrow of the essential nature and character of our mixed Government, for Congress to destroy the State governments. Congress, therefore, has no power to make such a proposition in the form of an amendment. I object to this so-­called amendment, that it does substantially comprehend such a proposition as that. It

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is substantially a proposition to abolish the State governments. It carries a principle with it which Congress may at any time carry to that extent. If Congress has the power to regulate the whole subject of suffrage, and to regulate the matter of who shall be eligible to office, that is the substance of the aggregation of the State governments when applied to them; and Congress might as well, and with more propriety—it would be a great deal a less stride of power—proceed at once to abolish, absolutely and without qualification, the State governments. I say that Congress has no such power. Chief Justice Marshall, in the opinion in the case of McCulloch vs. The State of Maryland, lays it down that what the people of a State have the power to organize and to institute they have the power to maintain. I ask the honorable Senator from Michigan what people have a right to form a State government for that State? What power is there upon this earth that has the rightful authority to form, to change, to abolish, and to introduce another government instead of the present existing government of the State of Michigan? No other power but the people of that State; and Chief Justice Marshall, in the case that I have referred to, states several times the proposition that a power to organize, to create, on the part of a State, imparts and carries with it a power to preserve its own organization. Then every State having the exclusive power to organize its own State government, according to the positions taken by Chief Justice Marshall in that case, each State government has the power to preserve the State government which it has the right to make. I say that for Congress to interfere with the power of the States to make their governments is as much usurpation of power as it would be for a State to attempt to overthrow the Government of the United States. There may be rebellion and treason against the States as well as against the United States. The Supreme Court decided that principle in the case of Luther vs. Borden. Yea, sir, the President of the United States, the Congress of the United States, the high officers of the United States, when they transcend their constitutional functions and powers and array themselves with arms in their hands to resist the government and laws and authorities of a State commit treason against that State; and they are as much subject to be proceeded against in that State as traitors, and to be punished by its laws denouncing treason as a crime, as Jeff. Davis and his accomplices were subject to be indicted under the laws and Constitution of the United States for having com-

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mitted treason against it. It is as much treason against a State to make unauthorized armed resistance to the execution of its laws as it is treason against the United States to make unauthorized armed resistance to the execution of the laws of the United States. The cases are parallel. If it is true in the one case it is true in the other; and I only regretted that there was not some State that had power enough, and whose government was so organized and filled by men of such will and ability and courage and determination as would have brought some of the highest officers of the Army to be tried for treason against their State governments and to be executed on the gallows. It would have been one of the most wholesome precedents that ever was set. Now let me say a word on another point. The honorable Senator from Connecticut [Mr. Ferry] said the other day that he was gratified that neither myself nor any other Senator who had then participated in the debate took any ground against the fitness and the ability of the negro race to take part in our Government. Sir, there is not a negro in America who understands the principles of our Government. There is not a negro living on the face of God’s earth that can understand the principles of our Government, and that is competent to take an intelligent and a useful part in the administration of that Government. Gentlemen have grown eloquent and pathetic in their denunciation of the brutalizing influence of slavery, assuming that it was the demoralizing effects of slavery that rendered the negro incompetent to take part in our free and complicated system of government. Sir, I have seen what we used to call in olden times the Guinea negro; I have seen a few slaves that were brought direct from Africa; and in appearance and intelligence they were but little above the baboon. All the intelligence, all the attainment, all the civilization of the present race of negroes in the United States, as has been truly said by the Senator from Indiana, [Mr. Hendricks,] they have received from the white man in the condition of slavery. They are indebted to slavery for all they know, all their intellectual and moral elevation from the condition of the most ignorant barbarism. It has been my fortune to know the negro in three conditions, and I think they are the only normal conditions that the negro, as a race, can ever occupy. I have known him as an ignorant savage from Africa with only the faintest lights of reason and intelligence; I have known him as a comparatively intelligent and contented slave, and I have known him as a political vagabond hovering under the shadow of the Freedmen’s

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Bureau. Those are the three normal conditions of the negro race. He was originally in his own country a savage. When he was brought to the United States he was partially civilized to something like the extent to which his natural organization admitted him. He is inferior in physical condition, in mental and moral endowment, to the white race or to the yellow race. Every ethnologist knows it. Every man who is acquainted with the negro practically and from experience knows it. There is but one ethnologist that I have read of who maintains the equality of the races, and he maintains it against all the truth of history. The honorable Senator from Indiana said truly that for two thousand years, yea, for four thousand years, ever since the interior of Africa, with its seventy millions of purely negro population, has been known to the white man there has been no civilization there. They have never invented an alphabet. They have no arts, no sciences, no regularly organized government. They never carried on a regularly organized war. The rudiments of civilization there are of the lowest degree. They are in a condition of brutalized, ferocious, and ignorant barbarism. That is the condition as proven by all history, and by the modern travelers in the interior of Africa, of those whom honorable Senators here have said have been so brutalized by slavery in the United States as to be unfit to take part in our Government. Mr. PATTERSON, of New Hampshire. I should like to ask my distinguished friend a question. I should like to ask him if what he has said of the negro race in its original condition is not equally true of the Saxon race in its original condition? Mr. DAVIS. No, sir. Mr. PATTERSON, of New Hampshire. I wish to know if the Saxon, while wandering in skins in the forests of old Germany, was not as truly a savage as the inhabitant of Ethiopia? Mr. DAVIS. I say he was— Mr. PATTERSON, of New Hampshire. Now the gentleman acknowledges— Mr. DAVIS. Will the honorable Senator put one question at a time, and allow me to answer it? Mr. PATTERSON, of New Hampshire. Very well. Mr. DAVIS. I say that the white race and the black race and the yellow race and the red race in the earliest dawn of their history were alike savages, and that the inhabitant of the forests of Germany was at one time and in one condition of his existence as much a savage as the negro, except that he was endowed by nature

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with superior faculties, with a power of emerging from his condition of ignorance and barbarism, and the other was not. Mr. PATTERSON, of New Hampshire. I should like to ask another question at this point. The gentleman has acknowledged that he has seen the African in three conditions: first, that of an original savage; and second, a somewhat enlightened slave. Now I want to know if that enlightenment does not prove the capacity of the negro for civilization and improvement? Mr. DAVIS. I will answer the honorable Senator that question. The civilization of the negro is always imparted by the white man, and that civilization cannot be continued and preserved except in contact with the white man. The negro has no power to civilize himself. The white man for four thousand years has been to a greater or less extent engaged in the civilization of the negro, and that negro and his posterity have invariably lost that civilization. He has lost it because he could not maintain it. He is not endowed by nature with the faculties and qualities that will enable him to preserve the civilization imparted to him by the white man, much less to originate one for himself. ... The race* is not capable of self-­government. The great problem of this day is whether the white race is capable of self-­government. The present Radical party is not capable of governing this country. It has proved that fact; it confesses that fact; and it seeks to bring in four millions of ignorant, half-­savage negroes to aid it in this great work. Gentlemen will receive no aid from this source. Senators treat the right to vote as if it was the end of all government. The right to vote is not a natural right. It is an artificial right. The political power in every country ought to be vested in that portion of the people who will give it the wisest and justest laws and the most faithful administration of them. All civilized society admits that principle. You exclude Indians from political rights. Why? Because of their incompetency to exercise them. You exclude lunatics from the exercise of political powers and rights because of their incompetency to exercise them; and yet many lunatics, laboring under monomania and partial lunacy, are incomparably better qualified for the exercise of all political power—the right to vote and the right to hold office under our form of government—than any of your negroes. * [That is, the black race. —Ed.]

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But you exclude these persons in classes; and why? Because you cannot discriminate between individuals in classes. I admit that there may be a few negroes endowed beyond their race. You cannot admit them and exclude the whole residue of the race; and if you admit the whole race, you admit a great, incompetent, disturbing power of political government. Therefore, the negroes ought to be excluded as a class. They are not competent to the performance of the duties to which you would assign them. They have proven their incompetency in every condition that they have ever occupied. Why, then, will you force them upon the white people of America? Sir, if I was satisfied that every negro would vote with and for the Democratic party, their policy and their candidates, or for the old Whig party and its glorious principles, I would oppose the bestowal of suffrage upon them as relentlessly as I now do, because my conviction of their utter incompetency to come to the great responsibilities of taking part in the Government and the administration of our Government remains fixed and immutable. There is no state of things, no temporary advantage, no success of power, no continuance of party in power that would bring me to consent to extend the right of suffrage to the negro race. ... I do not doubt that General Grant is a man of good intellect, but he is the most prudent man in his conversations that I have ever heard of, except that Guinea negro to whom I have adverted. [Laughter.] I do not know how much of his force and strength he has made by his silence, but certainly he has made a good deal of it in that way. There is no mistake about that. When he talks I hope he will talk like a patriot and a statesman. I hope he will form and fashion himself and his administration upon the model of Washington. All the justice and moderation and patriotism and success of Washington I desire to be received and to be derived by the incoming President. I was more opposed to Johnson when he was inaugurated as President than I am now to General Grant, because I believed him then to be further from my principles and my views of a constitutional and wise ruler. I was greatly disappointed in Johnson. I believe he has given us one of the wisest, one of the most constitutional, one of the most conservative and able administrations that our Executive has ever had. I honor him in the ending of his days; his sun is setting gloriously, notwithstanding the slight clouds that gentlemen try to throw over it to obscure it; it yet shines in undiminished

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luster, and he will be the great central historical character of this day of our country’s trouble. Let other people worship the rising sun, but I turn my eyes in gratitude and in admiration to the glorious setting sun that is so soon to sink beneath the western horizon, and I pray that his successor may have as much merit and as much proper claim upon the gratitude and confidence of his countrymen as the outgoing President. ... Mr. SAWYER. ... We have heard here on this floor to-­day all sorts of discussions about the ethnological character of the negro, about his intellectual inferiority, about his capacity to engage in the business of government, but we have heard on this floor no assertion that he was not a man. There is no Senator here that dared to rise in this Hall and say that the negro had not the powers of development. Nay, it has been distinctly asserted by several Senators that the negro in contact with the white race has gained a great degree of civilization since he was brought from his native barbarism in Africa. If he has shown himself competent to a certain degree of development, if in the process of time he has come to that condition whereby he can be rendered a freeman with safety to the State, I ask if that does not lead logically and naturally to the inference that his development may be still further carried on, and that he may be capable of making a good citizen, carrying intelligently a ballot? I ask if that citizen who has been able to carry a bayonet in defense of his Government is not likely to be competent to carry a ballot to protect the liberties which his rifle has helped to win? ... Mr. President, the danger of admitting the negro vote because a portion of the negroes are ignorant, the danger of admitting the votes of any class of men because some of that class of men are ignorant, is a danger which is incident to the possession of the ballot by all men. I suppose it will not be claimed by any Senator that one half of the white men in any country exercise the vote on all occasions intelligently; but on that account, because a man happens to be weaker in intellect than his neighbor; because he happens not to have the capacity for administration, the capacity for filling the offices of the counties and towns and of the State, does anybody propose to deprive him of the ballot? No; but when we get to a man whose skin is a little darker than ours, whom we can mark out as belonging to a class, we can assume

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that his color is a badge of inferiority, notwithstanding the numerous exceptions which we can see even under the adverse circumstances under which these people labor. Then when we can establish that mark of color as the mark of a class men wish to discriminate against them and deprive them of the rights of other citizens. Now, Mr. President, the war has made all the slaves citizens. When the war opened the great majority of the black men in the country were slaves. The rebellion came on, and in the process of the rebellion, as a consequence of the rebellion, under the Providence of God they became freemen. By the sense of justice of the American people they were made citizens of the United States. They are citizens of the United States wherever they are found to-­day. Now, whatever class of men we make citizens of the United States, it is, in my opinion, a public danger to keep from participation in the active powers of government. Mr. DAVIS. Are not women citizens? Mr. SAWYER. Women are represented through their husbands or brothers. Mr. DAVIS. Are not our negroes represented? Mr. SAWYER. Through their masters. I know that the theory is that the negroes should be represented by those who have so long represented them in providing for their animal wants and taking the proceeds of the labor of their muscle. I know that it is a favorite theory of the Senator that the negro should be represented in that way; but I claim that we have a right to exact from the male negro citizen his duties toward his country, that we have a right to call upon him to perform his part of the labors and burdens of the citizen. We tax him; the clothes that he wears pay a revenue to the Government; the food that he eats is in many cases taxed for the aid of the Government; almost everything that he consumes is taxed. He pays a tax to the Government; he is liable to be called into the service of the Government. They have, in immense numbers, volunteered to aid the Government in its time of trial. Demanding of the negro citizen the performance of these duties, claiming from him these taxes, I assume that it is our duty to see that he has the same rights that any other man who pays the same taxes enjoys. I do not propose to continue these remarks. I should not have said anything on this question but for the strangeness of the doctrines which have been announced here. Those doctrines, it seems to me, are precisely the doctrines which led to the rebellion itself. They are an exaggerated statement of the State rights

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doctrine, of the doctrine of the resolutions of 1798, and following those doctrines out to their logical consequence you will not only make the States sovereign, but indorse and approve the doctrines of secession. More than that, it will, in my opinion, produce another revolution. It is generally conceded that the war has settled something in regard to that doctrine. We had supposed that the doctrine of State rights in this extreme application which is sought to be put upon it here had been put to sleep by the war; but it seems to have awakened from what we supposed was its tomb, and to show its head in every discussion; and there is a much more pronounced statement of it here by gentlemen representing northern States than can be found at the present time among gentlemen representing southern States. I believe that the vast majority of the people of the State which I have the honor to represent would dissent entirely from the views which have been stated by the distinguished Senators from Kentucky and Indiana. ... Mr. WILSON addressed the Senate in a speech which will be published in the Appendix.

the people, almost a dead letter. This amendment appeals alike to the friends of the colored race and to other citizens of the United States. It allows any State to try, if it chooses, the experiment of woman suffrage. If this amendment shall be adopted, as I trust it will, it will be strong before the people, and will, I am confident, be sanctioned by the votes of three fourths of the State Legislatures. Sir, my colleague has prepared a bill to secure equal suffrage. I shall vote for it if it is presented as an amendment to this bill, or in any other way in which it may be presented. But some of the ablest statesmen and most eminent jurists in and out of Congress question the constitutional authority to enact such a law. A portion, perhaps a large majority, of the Republicans of the country entertain serious doubts of the right to secure equal suffrage by congressional legislation. In this state of the public mind I am for submitting a constitutional amendment to the States and putting forth our full strength to secure its adoption. Let us fling ourselves into the contest with that dauntless resolution that crowns conflict with victory.

Mr. WILSON said:* ... Several amendments have been submitted. As we are all anxious to secure the adoption of one that shall be the most perfect in form, I propose this amendment:

The PRESIDENT pro tempore. The question is on the amendment of the Senator from Oregon [Mr. Williams] to the amendment offered by the Senator from Nevada, [Mr. Stewart.] Mr. HOWARD. Let it be read. The Chief Clerk. The amendment is to strike out the following words of the original amendment:

No discrimination shall be made in any State among the citizens of the United States in the exercise of the elective franchise, or in the right to hold office on account of race, color, nativity, property, education, or creed.

The right of citizens of the United States to vote and hold office shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

This amendment is comprehensive, just, and, therefore, strong. It secures the right to vote and the right to hold office to men of African descent, and it embraces others, against whom tests are made in some of the States. In Rhode Island naturalized citizens cannot vote unless they are the possessors of property. In New Hampshire the Catholic cannot hold office by the constitution, though the people of that State, believing that constitutions were made for man, and not man for constitutions, do sometimes elect Catholics to office. In Massachusetts an educational test is demanded, although it has become, through a sense of justice among * Cong. Globe, 40th Cong., 3rd Sess., Appendix, 153 (Feb. 8, 1869).

And in lieu thereof to insert:

Congress shall have power to abolish or modify any restrictions upon the right to vote or hold office prescribed by the constitution or laws of any State.

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Mr. HOWARD. I ask whether it is in order to offer a substitute for the amendment of the honorable Senator from Oregon? The PRESIDENT pro tempore. It is not in order to amend this proposition, because it is an amendment to an amendment. Mr. TRUMBULL. In voting on this amendment I think we had better have a division or a call of the yeas and nays, that Senators may come in.

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The PRESIDENT pro tempore. The question is on the amendment of the Senator from Oregon to the amendment of the Senator from Nevada. The amendment to the amendment was rejected; there being on a division—ayes 6, noes 38. Mr. DRAKE. I move an amendment to the amendment, to strike out all of section one of the proposed article and insert:

leave to suggest to the honorable Senator from Vermont that if, even in the mechanical construction of the sentence, the one has an advantage over the other, even in so small a matter as that in a constitutional provision, attention should be given to it. I think that upon hearing the two read together the probability is—I say it with all respect and deference—that hearing the two read together the consciousness of the Senator would probably recognize in that collocation of the different branches of the sentence which I have made, one which is apparently more fit for the subject than that which has been presented by the committee. Mr. HOWARD. Mr. President, I think the proposition of the Senator from Missouri is open to the same objection which lies against the amendment of the Committee on the Judiciary. If I understand it rightly there arises from it the same implication which is derived from the language of the committee, namely, that although the United States, that is, Congress, may not deny or abridge the right to vote and hold office on account of race or color or previous condition of slavery, Congress may establish some other test upon the ground that it is fairly implied. Now, sir, I cannot vote myself for any such thing. I will not vote directly or by implication authority to prescribe any such test as that of religious creed, education, property, or anything else, and I should far prefer the amendment which I propose to offer myself at the proper time instead of either of these propositions, for I think the one which I shall offer steers clear of these difficulties entirely. Mr. DRAKE. I would inquire of the honorable Senator from Michigan if he conceives it to be within the range of possibility in constitutional construction that the express denial to the United States or to any State of the right to do one particular named thing could by implication be held to be an affirmation of its right to do another thing? Mr. HOWARD. The question is entirely too general in its terms and does not admit of any definite and exact answer. The clause submitted by the Committee on the Judiciary is this:

No citizen of the United States shall, on account of his race, color, or previous condition of servitude, be by the United States or any State denied the right to vote or to hold office.

Mr. President, I have endeavored very earnestly to express in the briefest possible compass the idea intended to be conveyed by this constitutional amendment. I would ask the attention of the Senate to this form, which I have drawn after repeated attempts, believing that it expressed the whole proposition in less words and in a better collocation of words than any amendment that I have yet seen. Of course, if the Senate should be of opinion that there is some other amendment which expresses it more succinctly than this I shall cheerfully agree to whatever their judgment is. Mr. EDMUNDS. I should like to inquire of the Senator from Missouri what the difference is between his amendment and the one reported by the committee. It is not obvious to my comprehension at this moment, and I should be glad to have him explain it seriously. Mr. DRAKE. I think that there is a difference, if not any otherwise, in the arrangement of the different parts of the sentence. Mr. EDMUNDS. Yes; I see there is a mechanical difference. Mr. DRAKE. There is, I think, more than a mechanical difference. The right to vote or to hold office appearing in the beginning of the amendment proposed by the committee seems to carry with it the idea that there is a right to vote or hold office independent and irrespective of a constitutional or legal grant to that effect. By placing it in the other end of the sentence in the connection in which I have placed it, it seems to me not to convey that idea, but that the sole idea conveyed in it is that the denial of the thing shall not take place pursuant to the antecedent circumstances mentioned in the amendment. It may be, Mr. President, that I am not exactly perspicuous in the statement of it; it may be that there is a line of difference and a shade of distinction, but I beg

The rights of citizens of the United States to vote and hold office shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of servitude.

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As I understand it, the proposition of the Senator from Missouri is tantamount to this. Now, it appears to me very evident that if this clause shall be adopted,

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there is granted to the United States by a plain, manifest indication the power to deny or abridge these rights for some other and any other cause. I cannot give it any other interpretation. I am not perfectly sure, however, that the proposition of the Senator from Missouri is liable to the same objection, because this is the first time I have heard it. Mr. DRAKE. It is not, I think. Mr. HOWARD. I hope, then, that it will be read again. The Chief Clerk again read the proposed amendment. Mr. STEWART. I desire to inquire if he might not be deprived of that right by reason of somebody else’s offenses. In the House a portion of the section was put in the form it is in consequence of the attempt to avoid a difficulty that might arise from a man being deprived of the right to vote by reason of his ancestors having been slaves. I think if the Senator from Missouri will look at the amendment of our committee he will see that the language is not so likely to be misunderstood: The right of citizens of the United States to vote and hold office shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

This, probably, would not only include the citizen himself, but the class to which he belonged. The amendment of the Senator from Missouri is an attempt to get up the same idea in different language; but I do not think the language is as safe as that in the amendment of the committee. The proposition, however, is new to me, and it is somewhat difficult to pass upon language of this kind readily. I think the amendment proposed by the committee is safer. Mr. DRAKE. The right to vote is an individual right; it does not belong to masses of people, but it belongs to each individual. When you frame a constitutional provision which is to bear upon the right of the individual and not upon the right of communities, then I take it that almost every gentleman in the Senate will at once recognize the propriety of making the provision apply to the individual directly, and not to masses. Every man who goes to the polls goes upon his own individual right to vote, and his right to vote cannot be affected one way or the other by the right of any mass of people of whom he may be one. Therefore it is that I object so strongly to the language of the House resolution, the putting of these words at the end of the amendment, “or class of citizens of the United States,” as if my right to vote could

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by any possibility be affected by the right of any other class of citizens of the United States. It is a great deal better to make it as strictly personal and individual in its bearings as it can be made. I believe that if the Senator will so far consider the matter as to scan closely the language of my amendment he will see that it does cover every conceivable case, and is not liable to the objection to the other form of amendment, bringing the words “the rights of citizens” in the foreground of the amendment, and thereby assume that they have a right to vote or hold office without any grand principle of sovereign power as a mere natural right. Mr. STEWART. I think that amendment is just as well as a declaration. I do not see any point in that. The only point is whether we have made an affirmative proposition sufficiently clear that it cannot be evaded. The House of Representatives put in the latter portion of their proposition the words, “class of citizens,” for the reason that a person might be deprived of his right to vote on account of the servitude of his ancestors or on account of the servitude of his class, although he might not have been himself in actual servitude. Consequently they thought it sufficient to put on the last clause, so as to say that the rights of citizens of the United States shall not be denied or abridged on account of their race, their color, or their previous condition, meaning the class to which they belong. This is the broad expression of the proposition. The amendment of the Senator from Missouri is a particular proposition, and I think it narrows the amendment and does not improve the measure. Mr. EDMUNDS. If I could persuade myself that the amendment reported by the committee does imply, as the Senator from Missouri supposes, that there exists now any citizen of the United States—which is a subject to which the sentence relates—without the right to exercise political privileges, then most certainly I should think that it was a great deal better than any amendment which did not imply such an existing right, because I am one of those, and I may as well say it now as ever, who believe that the fourteenth amendment which we have already adopted has undertaken to secure to citizens of the United States all the privileges and immunities that belong to citizens as such, including, of course, and comprehending all belonging to the class. There is no qualification or limitation, but words the most comprehensive possible in a statute or in a constitution are used. I believe that every citizen of the United States in respect to whom political rights can be asserted at all is entitled now to exercise political privileges; and

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therefore if there is any man in the United States who was before that amendment entitled to exercise political privileges, that amendment extended to all the citizens similarly situated, without arbitrary and mere fanciful distinctions, such as color, nativity, education, or of religion, an equal right; because if there is any vitality at all in that article, which was so much studied here, and which at last has commanded the assent of three fourths of the States, it is that it gave the great and comprehensive word “privileges” to all citizens alike, and that it made secure to them privileges that belonged to the highest class of community. This is worth thinking of while we are discussing even these amendments, because now we are coming to the real consideration of this question, having finished for the morning at least the orations which have been delivered, splendid and instructive and delightful, but after all lacking the precise considerations which belong to law or constitution-­making. Now, where shall we find ourselves if we cut loose from this anchor which now holds us to an orbit of liberty, and go sailing away after the assent of three fourths of the States to something else upon the assumption, upon the admission, as our enemies will claim, that there is nothing in the Constitution of the United States, as it now stands, which preserves to any citizen the right to exercise political privileges? How long will it be before no citizen under the Constitution of the United States will be secure in the exercise of political privileges if he is not now? Who is able to say where the twenty-­eight or twenty-­nine independent States are to be found who will agree to any further addition to that instrument? And what is to become of your privileges and mine, as secured under the Constitution of the United States, during this uncertain and doubtful future which lies before us, no man can tell. It is true, sir, undoubtedly, that wheresoever that party which we call the Republican party holds sway in the States they will as a rule gladly accede to it if it shall be thought that it adds anything either in principle or in form to the security of the great rights which belong to human nature and civilization. Mr. STEWART. Allow me call the attention of my friend from Vermont to a provision of the Constitution which prevents this from being so regarded:

Mr. SUMNER. Is there any word of human conception broader than “privilege?” When that was given, did it not give everything? Mr. STEWART. I merely say that if you pass this there is an express constitutional provision that it shall not be a presumption that it excludes any privilege already belonging to the citizen. Mr. EDMUNDS. My friend cannot have understood the point of the argument I was suggesting, by bringing forward such a reason as an answer to it. What I am calling the attention of the Senate to is the argument, if I may so speak, of a judge or a lawyer of a construction. Now, if having last year passed one statute this year you pass another on the same subject, do you not by a certain implication, at least in the moral sense, raise and put forth the idea that the old statute did not answer the purpose that you are now seeking for? What my friend has said in relation to the inherent and inalienable rights of human nature are not to be prejudiced by anything in the Constitution. My point is, that by putting something in the Constitution, which we now propose to do, we shall have raised the intellectual question, not the human one, whether we are not concluded by now attempting to make in this amendment that the amendment we made before did not reach the same end. I do not say that that is a sound argument. We may go on making amendment after amendment that have the same legal scope and effect, it is true; but it so happens in the course of human affairs that the world will not accept that idea. The country will believe—and the country in a large degree influences judicial as well as political proceedings—that we are satisfied in both Houses of Congress that the Constitution of the United States as it now stands does not contain any security of political privileges to any man. I do not wish to make that concession. Mr. DRAKE. Will the honorable Senator from Vermont allow me to inquire whether I understand the scope of his argument? Mr. EDMUNDS. I do not know that you do. Mr. DRAKE. That is exactly what I do not know myself, and I wish to ascertain. The question with me is, on which I wish to get information from the honorable Senator, whether he considers that the first section of the fourteenth article of amendment to the Constitution does now confer upon citizens of the United States the right to vote in the States in which they reside? Mr. EDMUNDS. Decidedly, Mr. President. I con-

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

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gratulate my friend from Missouri, after this long, sleepless night, on his having understood my proposition perfectly. Mr. DRAKE. Then I must be permitted to say, Mr. President, that I do not think the proposition is a sound one. Mr. EDMUNDS. That, sir, is a question of opinion about which my friend from Missouri will permit me to differ from him, I have no doubt. This fourteenth article, if he will allow me to call his attention to it, was certainly intended to do something. I may make use of the same argument that I was suggesting a moment ago against the wisdom of passing this one. It was intended to make it a subject in addition, was it not, touching the political privileges and rights of citizens of the United States. We have already in the Constitution an express declaration that the privileges and immunities of the citizens of the several States should be guarantied to them in whatever State they might take up their residence. I am not using the language but the substance of the section with which my friend is well acquainted. We had that already. We had the article abolishing slavery. What, then, did we lack? What was the fourteenth article designed to secure? What was there left in the range of the rights of citizenship under the Constitution as it stood before the fourteenth article, except exactly that which is covered and comprehended in the broadest of language contained in the fourteenth article, that the privileges and immunities of citizens of the United States shall not be either abridged or denied by the United States or by any State; defining also, what it was possible was open to some question after the Dred Scott decision, who were citizens of the United States. Mr. HOWE. Will my friend allow me to ask him if that language secures the right to vote to men does it not also to women and children? Mr. EDMUNDS. Not necessarily. Mr. HOWE. Why not? Mr. EDMUNDS. For a reason that my friend will find better stated, in a legal point of view than I can state it, in a decision of the supreme court of the State of Kentucky, pronounced about twenty-­five or thirty years ago, when Kentucky was in the pride of her judicial renown, as she was in her political, and when her courts could not be accused—as I do not know that they now can be—of any special leaning toward liberty and the rights of citizenship. He will find it there decided that in order to be a citizen, in the general and comprehensive sense

of the term, such as the fourteenth article defines it to be, a person must have of necessity, as an essential and indispensable ingredient in citizenship, the highest political privileges that belong to any class in society. Then the court proceeded to say that although that is true, the highest privileges belonging to any class in society are not extended to females, and therefore the qualification as to females is made in this general right upon the same legal principle that it is made as to idiots and insane persons, not that a female is necessarily like either, but I am speaking in a mere legal sense, as a court would construe it. So, therefore, without at this hour in the day taxing the patience of those who listen to me by going into the legal and logical argument that can be made and that is made by the courts to deny the right to vote to females, while they assert and maintain that it is an essential and indispensable constituent of the right of manhood citizenship, I refer my friend to those judicial decisions to show that there is comprehended in the very name of citizen in this country, truly and rightly considered and adjudicated, the same great and all-­embracing powers that in ancient times applied to a Roman citizen. Mr. HOWE. But I wish, if my friend will allow me, to ask him if the decision of the supreme court of Kentucky, to which he refers, pronounced twenty-­five years ago, is not reversed by this very clause of the Constitution, which says that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the States in which they reside. Mr. EDMUNDS. Not reversed at all; for that is exactly what the decision holds. It holds that everybody, subject to the qualification I have named, is a citizen of the country for that purpose; that there belongs to everybody who, as a part of the highest class in community, may exercise political privileges, equal political rights; and therefore, as the case was in Kentucky, a male person cannot be a citizen unless, being a citizen, he has breathed into him at the same moment with the fact that he is a citizen the right to vote. That is perhaps a sufficient definition of citizenship in the narrow sense we are now speaking of, as distinguishing between the rights of citizens, rather than defining what they are. A citizen is a person in community who, other things being equal, is invested with all the privileges that belong to the highest class in community, by whatever name you may call them. 515

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I admit that this method of argument to show that a citizen must necessarily possess the privileges that belong to the highest class, and that that is the true definition of the term, and at the same time to hold that that does not comprehend an adult female, is a somewhat artificial and, philosophically speaking, a somewhat unsound argument; but I say that judicial decisions have determined that these are the qualities that inhere in the very nature and definition of citizenship as applied to the political subjects which relate to any citizenship at all, and that this qualification, as I call it, is equally well settled. We may, therefore, set aside, for the purpose of considering what I am speaking of, the question whether by a true and philosophical construction of the definition of the term “citizen,” a female would be entitled to vote or not. That is not the question now before us. I should not cry very much if we could extend the true and philosophic idea of citizenship to giving females the right to vote. I think they would vote quite as well as we do if they would only go and do it. The great difficulty that I have on that question—but I am not going into a dissertation on it—is that I am very much afraid when it is extended to them all the bad women will vote and the good women will stay at home. It is somewhat so with men. The non-­voting class in a community, as you and I well know, sir, who are entitled to vote, as a rule are those who, when they would go and vote, would exercise the most salutary and beneficial influence upon society; and they commit crime, in a certain sense, against society if they do not do it. You never see a bad man or a wicked man or a man who is a tool in the hands of somebody else absent from the polls on election day. He is there and counts to the last vote. It is not so with the other class of the community. That is a defect in the men who compose and should rule and control our institutions. But that is apart from my present purpose. All that I wish to say, and I may as well say it now as to wait until the last moment when we come to the final vote, is that I deprecate the attempt on the part of the Republican party to pass this constitutional amendment because we get no aid from anybody else. Those who carry the name of Democrats, who talk the most before the people about the equality of men and the largest liberty, the freedom of the ballot, and all that, are found resisting, if they can, the security of that liberty or the extension of that ballot. I say, then, that I deprecate the party which is charged with securing these rights to the citizens of the United States, departing, as

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it seems to me, from a safe and secure position, resting on “the Constitution as it is,” as the Democratic phrase used to be, where I believe under the authority of a law of Congress, not enlarging the Constitution but merely enforcing its guarantees, you can give the ballot to every man in the Union, and sailing away upon an unknown sea of experiment and hope and uncertainty in time and in result, and leaving the country to suppose, and leaving the courts to suppose when it comes to them, that you have given a legislative interpretation against the existence of any such privilege under the Constitution as it is. You will, therefore, have given up a reasonable and a moral certainty that you have in your grasp for an uncertainty that you chase it will go further and further away. I am in favor, as undoubtedly every man who hears me knows, of the object that these amendments wish to attain. Mr. WARNER. I will ask the Senator from Vermont how long he thinks it would be before the construction which he gives to the Constitution, namely, that the right to vote and hold office inure to citizenship, would be so far enforced as to practically give to every citizen the right to vote and hold office? Mr. EDMUNDS. I think that depends upon the courageous fortitude and the vigorous, aggressive assertion of that right under the Constitution that the two Houses of Congress may show. I believe if we were to pass a law under the fourteenth article of amendment which should assert and put into practical operation what I believe to be the true spirit and life of it, that it would not be two years, or one year, before in three fourths of the States—more than you can get in one year or ten years for any new amendment of the Constitution—it would be an accomplished fact. Mr. HOWE. What do you want of a statute? Mr. EDMUNDS. We do not want anything of a statute except merely to put into practical operation by the will of the law-­making power of the nation, and by, therefore, the administrative functions of its officers, the life that is contained in the Constitution, just as we want a law to enforce a hundred provisions of the existing Constitution, and as we have it. Mr. HOWE. But I wish to ask my friend if the function that he speaks of is not in the individual voter himself, and his right being secure of that, if the local law does not provide all the opportunities to enforce it; whether those two things do not make the right complete? Mr. EDMUNDS. Unquestionably the right is complete. I hope my friend does not suppose that I am ar-

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guing to show that anything remains to give a right to a citizen to vote, if that article can bear that construction. What I say is, that, as it seems, in the States these qualifications and exclusions are kept up, as I am proud to say they never were in mine, it needs the sharp stick of intervention to put the Constitution in force, as it required the sharp stick of intervention to put it in force in South Carolina when Mr. Hoar went down there in order to give some rights to citizens and was driven away. It requires intervention, sir, not intervention above the law, or in spite of the law, but intervention in the name of the law, and with the law as the sword. Mr. FOWLER. Before the Senator leaves that point I should like to ask him a question to see whether I understand him. Turning to the first section of the fourteenth article I find that it provides that the individual shall possess all the rights and privileges of the highest class, and then that all persons born or naturalized in the United States shall possess all the rights that the highest class possess, including the right to vote. Is that his interpretation of that article? Mr. EDMUNDS. I have substantially answered that question. I should weary the patience of the Senate were I to repeat it. Mr. FOWLER. I do not wish the Senator to repeat it. I simply wanted to know whether that was his interpretation. I could not understand him. Mr. EDMUNDS. I would be happy to answer my friend again at length if the time and patience of the Senate would permit me; but I have substantially answered that already, and I will only occupy the attention of the Senate for a moment or two more. As I was saying, sir, what I deprecate is—although I am heartily, as I suppose every person who hears me is in favor of the object that we are seeking to obtain— that it appears to my humble apprehension that in endeavoring to reach that object, to attain that great and beneficent practical end, we are turning our back upon the point of destination and walking directly away from it. That is the difficulty with me. We are making progress backward; because as will be claimed, not as I confess with true argument and philosophy, but with a claim that it will be found impossible to resist, we are going away from that which is secured to us to that which is far from being secure, but is among the most uncertain of all things. Now, sir, where is the great stress at this moment to reach the practical end? In all the southern States where the great body of this disfranchised class or race now

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are—I mean disfranchised practically—they have acquired a right to vote under local constitutions, to say nothing of the fourteenth article; and they will never lose it except through a convulsion as great as any we have lived to witness. History does not record an instance where any class or race, however inferior gentlemen may suppose them to be, however ignorant they may be, have ever given up or lost political privileges they had once attained, except through the convulsions of revolution and anarchy. These people, therefore, in these ten States will maintain the practical exercise of the right to which they have recently been admitted, and there is no danger whatever except through the convulsion to which I have referred, and against that you have the constitutional power of the whole nation which you are bound to exercise, that they will go backward. On the contrary, as they assist to mold the institutions their own institutions will assist to elevate them, as they have all other men who entered upon the race of civilized life. They will go forward if you let them alone, instead of going backward. Where, then, is the pressing necessity? There are a few thousand disfranchised in New York; there are a few thousand in Connecticut; there are a few thousand in Maryland and Kentucky; a few here and a few there, a mere fraction in the great mass of the nation. Not that I would not do everything to give them the practical rights that their brethren have in other States, but I say the pressure upon us now, as a practical question, is not so great, as it seems to me, as to drive us away from the experiment of congressional intervention under the Constitution that we have broad enough and strong enough to uphold it, to the untried, and to me the somewhat hopeless experiment of undertaking to reaffirm the same doctrine in new language and under new conditions. If we wait for a constitutional enactment to give them fresh rights, we shall wait, in my opinion, until every person who is now forty years old will have passed away, and we shall find ourselves at the end of five years or ten years further, so far as our action goes, from attaining the point of universal liberty and equality than we are now. That is all I desire to say, and I am sorry I have been obliged to say so much. Mr. DRAKE. Mr. President, I would not protract this debate a moment longer if it were not that the honorable Senator from Vermont, it seems to me, has taken an exceedingly erroneous and detrimental view of the first section of the fourteenth article of amendments to the

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Constitution. We have arrived at the stage of the debate upon this great question when it is exceedingly important that we should understand precisely what we are about and express our views with the utmost perspicuity that we are capable of, for now is the time when we are to select the language that is to go into this amendment. The honorable Senator from Vermont takes the position that the fourteenth article of amendment does in fact now, at this moment of time, confer the right to vote upon all citizens of the United States. I am constrained to differ from the Senator from Vermont in that view; and I think it will be apparent to the Senate, by a very brief examination of the terms of that section, that no such claim can be rightfully based upon it. Let us look at the first sentence of that section:

tor, I take to be the one that he considers to cover the right to vote. It reads thus: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

To make the argument of the Senator from Vermont good, it must be that he holds that a privilege of a citizen of the United States is to vote. Mr. EDMUNDS. Is it not one of yours? Mr. DRAKE. It is; but I am a citizen also of Missouri, and under her constitution entitled to vote. I say a citizen of the United States merely is not entitled to vote anywhere in the United States. There is not a spot of land in the United States where a man is entitled to vote merely because he is a citizen of the United States. He must comply with the terms of the local constitution or the local law. Mr. SUMNER. May I put a question there to my friend? Mr. DRAKE. Certainly. Mr. SUMNER. Does the Senator take into view the clause of that amendment by which Congress is expressly empowered to enforce the amendment? Mr. DRAKE. I do. Mr. SUMNER. Is there not a source of power in that? Mr. DRAKE. There is a source of power to enforce all that is written in that amendment. Mr. SUMNER. That is, to enforce the immunities and privileges of citizens. Congress has plenary power to enforce those immunities and privileges. What more can it have? What amendment can you invent now that will give Congress so much as it has there? Mr. DRAKE. Mr. President, there is the very assumption again that the word “privileges” embraces the right to vote; and that is the very thing I am disputing. I say again, and I call upon any Senator here who can do it to show me where in the United States a man can vote merely because he is a citizen of the United States. I say, fearlessly, nowhere within the limits of the territory of the whole United States. There is, wherever he may be, a local constitution or a local law which prescribes something more than to be a citizen of the United States in order that he shall vote. Every Senator here knows that fact as existing in his own State, and therefore it is that it is impossible that the word “privileges” as contained in this section of the Constitution can embrace the right to vote because a man is a citizen of the United States.

“All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside.”

Does the honorable Senator contend that that sentence is the one which confers upon men the right to vote? If he does, then every State provision with regard to voters is completely overridden and put out of sight. Where they require a man to reside in a State twelve months that is abrogated and annulled by this sentence, if that be operative to confer the right of suffrage; because the very moment that a man takes up his residence in a State, it may be upon the very morning of the day of election, he can go to the polls and deposit his ballot, notwithstanding the declaration of the constitution of that State that he shall have resided there one year, or two, as is the case in some States. I do not think that the honorable Senator from Vermont will claim that that sentence of the first section of the fourteenth article confers upon any man the right of suffrage. It is simply, and never was intended for anything else than, a definition of what constitutes a citizen of the United States and a citizen of a State—a question that had been debated in this country about which judicial decisions pro and con had been given, and about which the opinions of Attorneys General of the United States had been given; and yet it was never settled, and probably never would be settled until settled just in this way. Now, sir, let us look at the next portion of that sentence which, from the remarks of the honorable Sena518

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Mr. PATTERSON, of New Hampshire. I should like to call the attention of the gentleman to one point, as I do not wish to speak myself on this subject. If the construction which the Senator from Vermont puts upon this first section of the fourteenth amendment is true, will it not abrogate the educational provision with regard to the right of suffrage in Massachusetts? Will it not abrogate the religious test which is in the letter of the constitution of New Hampshire for office-­holding, and the requirement of residence also? Mr. DRAKE. I would say with regard to that, that there is just one conclusion to which the constitutional lawyer must come if the construction claimed by the Senator from Vermont is correct; and that is that every single provision contained in every constitution of every State of this Union is wiped out by that single sentence, except the mere requirement that the man shall be a citizen of the United States, and that it imposes that requirement upon every man in every State, notwithstanding the constitution of the State may admit men to vote who are not citizens of the United States. If it be true in any sense whatever that that language of the Constitution referring to the privileges of citizens of the United States means the right of every citizen of the United States to vote, then every single provision in every State constitution in this country, except that merely, is completely wiped out by that section. I do not think that that is a correct construction of this sentence. I think we have more to do. I think that sentence referred only to the privileges and immunities which attach to men as citizens of the United States. Mr. EDMUNDS. What are those? Mr. DRAKE. Personal, sir; the right to life, liberty, property, and the pursuit of happiness. Mr. EDMUNDS. Do you think, then, that a citizen of the United States would have a right to acquire real estate in your State except he took it by or in conformity to your law? Mr. DRAKE. No, sir; that is a mere matter of local form. Mr. EDMUNDS. A mere regulation. Mr. DRAKE. A mere regulation as matter of local form. Mr. EDMUNDS. So is the residence of the voter. Mr. DRAKE. But this does not have the effect of wiping out that regulation. Mr. EDMUNDS. It does if it is construed in that way. Mr. DRAKE. If it is to be construed as giving the right

to vote, then, as I said before, it does wipe out everything else, and we stand here then before the whole country claiming that a constitutional amendment, which was adopted without any man in the nation ever saying that it meant that thing, does sweep out from the constitutions of all the States all the requirements of age, of residence, of property, of education. Everything of that kind is swept away by that one clause, and all men who are citizens of the United States are entitled to vote wherever they may happen to be at the time of the election. Mr. EDMUNDS. I hope the Senate will not be frightened out of any fair construction of the fourteenth article, or any other article, by the tremendous consequences which my friend from Missouri has painted. I do not think it would be very frightful if it should happen that the clause in the constitution of New Hampshire which requires a certain religious test—I do not know whether it is Mahommedan or Christian or what it may be—for holding office, or the clause in any other State constitution which limits the right to vote to persons of a particular race, were swept away. The question is, after all, what is the fair, legal construction that can be fairly put upon language which is to be interpreted favorably and beneficially for the enlargement of the rights of men. The argument that the Senator from Missouri has addressed to us is based purely upon consequences that he supposes to be absurd or inconvenient which are to flow from that construction. He, like a wise dialectician, evades and turns his back upon the meaning of the words that are contained in the article. He is careful not to tell you, sir, how broad the word “privilege” is. He is careful not to tell you the true scope and definition of citizenship; but he swims away in a cloud of eloquence that always surrounds him to these ghastly consequences of a Methodist being entitled to hold office in New Hampshire, and a man who cannot read being entitled to vote in Massachusetts. Mr. PATTERSON, of New Hampshire. If the gentleman will allow me, I will read that sentence in our constitution. Speaking of a member of the Legislature it says: “He shall be at the time of his election an inhabitant of the town, parish, or place he is chosen to represent; shall be of the Protestant religion, and shall cease to represent such town, parish, or place immediately on his ceasing to be qualified as aforesaid.”

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I will say that although that is in the letter of the Constitution, and goes far back, having a history which is not at all disgraceful to New Hampshire, it is now a dead letter. I have myself sat in the Legislature with a Catholic, an able, patriotic, noble man, who hazarded his life on many a battle-­field for the preservation of the country. But it is there, having its origin far back in the history of the State. Mr. EDMUNDS. I did not intend to open any question of reproach to the Commonwealth of New Hampshire. I have no doubt that she framed her institutions according to the spirit of the time when she entered upon political life. I cannot stop now to discuss either the history or the present wisdom or the effect of that clause. I only referred to it in reply to my honorable friend from Missouri. Now, sir, to condense, the key to this whole question between my friend and me is here: if it is one of the essential privileges of citizenship, as my friend knows that it is to him and to me, to vote, to exercise political power, then the Constitution says that the privileges which belong to him and me shall not be denied or abridged by any State. Mr. Drake rose. Mr. EDMUNDS. If the honorable Senator will be quiet for a minute, if he will “possess his soul in patience,” as I know he can, I shall soon be through. The Constitution does not say that the privileges and immunities of a particular class, a chosen few, shall not be denied or abridged. It does not declare that in the State of New Hampshire the privileges and the immunities of Protestants shall not be abridged or denied. It does not say that in Massachusetts the privileges and immunities of those who can read and write and know how to defend themselves shall not be denied; but it is a comprehensive term as well in the objects over which it rests as in the subject of which it speaks; and the difficulty which my friend has suggested, that it wipes away every regulation of the exercise of rights in the States because it gives those rights, is purely imaginary. Every lawyer knows, every statesman knows, every intelligent man in the country knows that it is one thing to have a right which is absolute and inalienable, and it is another thing for the body of the community to regulate equally and fairly the exercise of that right. My friend admits that one of the privileges mentioned in that instrument to me is the privilege of liberty, and yet I may be daily deprived of my liberty under the regulations of the State, which apply to us all alike. If I

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am deprived of it, rightfully or wrongfully, I can only get restored to it by the process of the law under the regulations that legislation shall provide. My friend admits that one of the privileges of a citizen of the United States is to hold property. Where is he to hold it? He must hold it in some State or Territory, must he not? Now, then, is he to acquire it in spite of the State law by an instrument unwitnessed, unsealed, unsigned? By no means. He must conform to the regulation of the local law which declares that his deed must be witnessed by two witnesses, must be sealed, must be acknowledged, must be delivered. And yet no man here thought of supposing that a privilege of a citizen was denied, although it is confessedly by my friend agreed to be a privilege, from the fact that the States regulate the exercise of it. Just so is the right to vote. I am a citizen of the State of Vermont. I am entitled by the confession of all in this argument, I suppose, to exercise political privileges there; and yet the law of Vermont declares that in order to exercise political privileges there I must reside in a certain place and for a certain length of time. Does anybody suppose that that denies the inherent and inalienable right that belongs to me under the constitution of Vermont? By no means. The whole argument of my friend is set aside by a simple recurrence to the sole principle that he supposes, because this right exists, it exists without the possibility of regulation. That is the whole of the argument. Now, as I say, everybody knows that a right may be perfectly secure and yet may be subject to regulation. All that he has described—residence, time, everything—is merely that regulation of minutiae which tends to uphold and secure rather than to destroy this great right and privilege that belongs to the citizen in a republican or democratic government to participate in the selection of its rulers. Mr. DRAKE. Will the Senator, before he sits down, allow me to ask him one question? I do not wish to protract the debate. I wish simply to ask one question of the honorable Senator. I have no remarks to make upon it. I wish to inquire of the Senator whether, when he votes at the polls in the State of Vermont, he votes there as a citizen of the United States or as a citizen of Vermont? Mr. EDMUNDS. Both. Mr. DRAKE. Then both being done, one would not suffice. The citizenship of the United States would not suffice. Mr. EDMUNDS. The Constitution answers that question. It declares that because I am a citizen of the United States I am a citizen, for that reason, of the State

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of Vermont, if I reside there. That is the very language of it. Mr. HOWARD. I wish to say but one word on this subject. I feel it a duty to make a single remark. As many of the Senators well know, I served on the joint Committee on Reconstruction, who reported the fourteenth amendment to the Constitution to the Senate and to the House of Representatives; and I am not unfamiliar with the object of that amendment. It was discussed at great length before the committee, and by the committee, as well as in the Senate; and I feel constrained to say here now that this is the first time it ever occurred to me that the right to vote was to be derived from the fourteenth article. I think such a construction cannot be maintained. No such thing was contemplated on the part of the committee which reported the amendment; and if I recollect rightly, nothing to that effect was said in debate in the Senate when it was on its passage. One word further. The construction which is now sought to be put upon the first section of this fourteenth article, it seems to me, is plainly and flatly contradicted by what follows in the second section of the same article. After declaring in the first section that—

the right and power of each State to regulate the qualifications of voters. Mr. SUMNER. The Senator is aware that that was denied at that time, and it would not have passed the Senate had anybody attributed to it that meaning. That I am able to say. It could not have passed the Senate. The Senator knows very well that there was an amendment, as it came from the House of Representatives, that was susceptible of such an interpretation; and I felt it my duty to oppose it, which I did at great length and most elaborately, precisely on the ground that it did abandon to the States the power to discriminate against colored persons; I refused to support that amendment, and I associated myself with others in that refusal. The Senator from Illinois [Mr. Yates] took part in that discussion and he was associated with me in consultation to defeat the amendment. We did defeat it, and on that ground; that it conceded to the States the power to discriminate against colored persons. We said we would have nothing to do with any such proposition. Then this article was brought forward, and it was sustained on that avowed ground, that it did no such thing. Mr. CRAGIN. Will the Senator from Michigan allow me to make a suggestion to set the Senator from Massachusetts right? The Blaine amendment, to which he refers, was in the reconstruction acts, and not in the constitutional amendment. Mr. SUMNER. I beg the Senator’s pardon; it was a constitutional amendment that came here with a two-­ thirds vote from the House of Representatives. Mr. HOWARD. I have but another word to say. The occasion of introducing the first section of the fourteenth article of amendment into that amendment grew out of the fact that there was nothing in the whole Constitution to secure absolutely the citizens of the United States in the various States against an infringement of their rights and privileges under the second section of the fourth article of the old Constitution. That section declares that—

“All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside;” And after declaring that—

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;” The second section goes on to say:

“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 Congress, the executive and judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State,” &c.

Plainly and in the clearest possible terms recognizing the right of each State to regulate the suffrage and to impart or to declare the necessary qualifications of voters for members of the House of Representatives, electors of President and Vice President, and members of the State Legislature. Sir, can anything be clearer? Here is a plain, indubitable recognition and admission on the very face and by the very terms of this fourteenth amendment of

“The citizens of each State shall be entitled to all privileges and immunities of citizens of the several States.”

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There it was plainly written down. Now, sir, it seems to me, that unless the Senator from Vermont and the Senator from Massachusetts can derive the right of voting from this ancient second section of the fourth article upon the ground that the citizens of each State are entitled to all the privileges and immunities of citizens of

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the several States, they must give up the argument; and I assert here with confidence that no such construction was ever given to the second section of the fourth article of the Constitution. Nobody ever supposed that the right of voting or of holding office was guarantied by that second section of the fourth article of the old Constitution. The commentators upon the Constitution apply it simply to the right of purchasing, owning, holding, and enjoying property by the citizen of one State, lying and being situate in another State, of receiving property by descent, &c.; relating to those personal rights and privileges connected with property which it was intended by the Convention which framed the Constitution to make common and uniform among the citizens of the United States; but never applying it to political rights of any description, either of voting or of holding office. Now, sir, the first section of the fourteenth article, in the first place, makes the declaration that—

ment did not confer the right of voting upon anybody, I say I am surprised that such a position should be taken at this late hour in the debate. There is no doubt upon the question. It was the understanding of Congress and of the people of this country that that amendment did not confer and did not seek to confer any right to vote upon any citizen of the United States. That amendment was passed after the passage of the civil rights bill. That law had not been carried out. It had not been enforced. It was passed also for the purpose of deciding once and forever that the emancipated slave was a citizen of the United States. There were other reasons which entered into the consideration of that question. But that it conferred the right to vote was distinctly disclaimed on this floor in the caucus which has been alluded to here to-­night; and, for one, I am not willing to have it go out from this Senate that we passed that amendment understanding that it conferred any right to vote. I wish to say, Mr. President, that this new development in this debate is calculated to defeat any action of Congress on this subject. It is calculated to defeat the proposed constitutional amendment. I do not presume that that is the object of the Senator from Vermont; but I do believe that the debate will be prosecuted upon this line of argument for the purpose of defeating the amendment, and I want the country to understand it. It is for that reason mainly that I rise to enter my protest against any such construction being put upon that fourteenth article of amendment as derived from the understanding of those who passed it in this branch and the other branch of Congress. ... Mr. HOWARD. I now offer the amendment to which I referred during the discussion as a substitute for the pending amendment. It is as follows:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside,”

That had not previously been enacted. Then follows the inhibitory clause, which was deemed so important by the committee, that— “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

The immediate object of this was to prohibit for the future all hostile legislation on the part of the recently rebel States in reference to the colored citizens of the United States who had become emancipated, and who finally were declared to be citizens by the civil rights bill passed by Congress. It was to secure them against any infringement or violation of their rights by those southern Legislatures. That is the whole history of it. ... Mr. CRAGIN. Mr. President, I did not think that I could possibly be tempted to say anything in reference to the question now under consideration; but the position taken by the Senator from Vermont greatly surprises me. When I remember the struggle that we had here in the passage of the fourteenth amendment; when I remember that it was announced upon this floor by more than one gentleman, and contradicted and denied by no one so far as I recollect, that that amend-

Citizens of the United States of African descent shall have the same right to vote and hold office in States and Territories as other citizens, electors of the most numerous branch of their respective Legislatures.

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... Mr. EDMUNDS. I hope the Senate will not agree to that amendment. It does not, as it seems to me, stand on any principle. It limits constitutional privileges to persons of African descent, selecting one particular and peculiar nationality. It does appear to me that there is nothing republican in that. It may do as an expedient for to-­day. It may be said that it covers all that to-­day embarrasses people in the United States, and we ought

A. Drafting, doc. 12

to put into the Constitution, if we are to put anything in, something which will be broader than one race and be longer in its duration and application than any limited period of time. I do not wish to occupy time, of course, but these are objections which to me are perfectly insuperable to the amendment of the Senator from ­Michigan. The PRESIDENT pro tempore. The question is on the amendment to the amendment. Mr. HOWARD called for the yeas and nays; and they were ordered. Mr. FERRY. I am in favor of the proposition of the Senator from Michigan, because it meets and remedies the one existing evil with regard to which there is yet an omission in the Constitution of the United States. I think that when we propose to amend the Constitution we should carry our actions just so far as the evil extends, the necessity for remedying which exists, and that we should not project beyond that into theoretical amendments. Now, the amendment of the Senator from Michigan reaches to the full extent of the evil, the wrong done to a certain class of citizens which is now proposed to be remedied. There, for the present, I am willing to stop. If a new evil shall develop itself in any future step of the history of the nation, then it will be time enough to meet that. ... Mr. WILLIAMS. I should like to inquire of the Senator if the amendment reported by the committee does not leave the entire power in the hands of the States to provide any educational or property or other qualification that they see proper for voters? Mr. EDMUNDS. Very likely it does under one construction; but it does not invite it. It does not undertake to take one particular class of people in this country who happen to have been born in one zone of the earth rather than another, and say that they, and they alone, shall be entitled to the political privileges that are accorded to the electors for the most numerous branch of the Legislature. That is the answer. I do not maintain that under the amendment as it has been reported absolute security is obtained for the ignorant and unintelligent and poor negro or poor anybody else. I do not know whether it ought to be or not; but the point of this specific amendment is claimed to be—that is said to be the virtue of it—that it enfranchises securely and completely the African. I say it does not do anything of the kind. I say it undertakes to dispose of him in the fundamental law, when you leave the native of every other

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country under the sun, the descendant of every other race under the sun, entirely to the mercy of the States. Sir, if this question is important enough for the national will to be invoked and the consent of all the States to be invoked and the consent of all the States to be invoked in adjusting a fundamental law as to the principle upon which political rights are to be secured and based, then, I say, and I shall be excused for the expression, that it is little less than an outrage upon the patriotism and good sense of a country like this, made up of the descendants of all nations, to impose upon them an amendment of that kind. Mr. WARNER. I hope this amendment will not be adopted. I hope the Congress of this country will not single out one race for protection; but that we shall go at once to the broad, grand, affirmative proposition which shall secure the object the Senator from Vermont so well states—that of securing to all the citizens of this country their rights. I think this proposition to single out one race is the weakest one that can be put before the country. If we want to strengthen it and give it a chance of adoption, we ought to amend it and insert the Irish and Germans. I think to single out one race is unworthy of the country and unworthy of the great opportunity now presented to us. We ought to go to the root of the matter by putting in the fundamental law a provision which will make the Constitution beyond doubt mean what the Senators from Vermont and Massachusetts now understand it to mean. Mr. PATTERSON, of New Hampshire. I hope that this proposition will be adopted; for of all the amendments which have been offered I think it is the best. Our object is to meet a wrong done to a class of black native citizens; to give them the same privileges that other citizens of the United States possess. The Constitution gives to the United States the right to establish a uniform system of naturalization; so that Europeans and Asiatics coming to our coast may be naturalized upon the same conditions in California and in New York. So by the passage of this proposition we shall relieve these black citizens, native to the soil, from the wrong which is done them, without doing any wrong to the Asiatics who may flow in upon our western shores. I prefer, for one, to leave that question open, so that if a war springs up in Asia and these increasing tides of immigration from Asia pour upon our Pacific coast in such numbers as to endanger the welfare of those States, they may have it in their power to guard themselves against the threatened evils, and then, if any evil should result, it will be in our

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power to remedy it. “Sufficient unto the day is the evil thereof.” Let us meet this evil, and not in attempting to meet it provide others that we know not of. The PRESIDING OFFICER, (Mr. Welch in the chair.) The question is upon the amendment of the Senator from Michigan. Mr. WARNER. If it is in order, with a view to test the sense of the Senate on the subject, I will move to substitute for the pending proposition— The PRESIDING OFFICER. An amendment is not now in order. There is an amendment to an amendment pending. Mr. WILSON. Is it not in order to move to amend the original resolution before we vote to strike it out? Mr. EDMUNDS. No; this is an amendment proposed; we are not striking out anything. The PRESIDING OFFICER. The question is on the amendment of the Senator from Michigan to the amendment of the committee. Mr. YATES. I wish to ask the Senator from Michigan what answer he has to make to the question of the Senator from Vermont, which to me will be an objection; and that is, if the colored people are to have the same qualifications as electors for the most numerous branch of the Legislature, whether in Connecticut, for instance, the negroes could vote at all? Will it not enable the State Legislature to decide as to the qualifications of the electors? I should like to have an answer to that question. Mr. HOWARD. The effect of my amendment will be to put the citizens of African descent upon precisely the same ground as other citizens in respect to voting and holding office. The qualifications for voting and holding office in the States are matters of course pertaining to the State Legislatures. Mr. EDMUNDS. The State constitution you mean. Mr. HOWARD. The constitutions or Legislatures, as the case may be. It is a State power; a State right, at least. I do not now propose to disturb that right any further than it may be affected by that amendment. If the States see fit to enact qualifications which will exclude large portions of citizens that exclusion will operate equally upon the whites and the blacks, and must necessarily do so. Mr. STEWART. I should like to ask the Senator from Michigan if they could not do this under his amendment: suppose that in a section of country where there is a great prejudice against colored men voting the community should resolve to attached a qualification

of $10,000 of real estate to the electors of the most numerous branch of the State Legislature, allow everybody to vote for all the other officers, but put this qualification so high that a select few would elect that lower branch, would they not do that to avoid the colored vote altogether? Mr. HOWARD. I should not apprehend any such result. Mr. STEWART. They could do that. Mr. HOWARD. They could do many other very absurd things if they saw fit to attempt them. Mr. WILLIAMS. They could avoid one amendment as well as another. Mr. HOWARD. Of course they could avoid one amendment as well as another. Mr. TRUMBULL. What do you mean by “African descent?” Mr. HOWARD. I mean by African descent what is popularly known as such. Certainly I cannot give the honorable Senator from Illinois any knowledge or instruction on that subject. By one of “African descent” is understood a person who has African blood in his veins. Mr. TRUMBULL. Ever so little? Mr. HOWARD. No, sir; not ever so little. That is a matter to be decided sometimes by a court of justice. It is a popular phrase, well understood by everybody. It designates what is commonly known as the negro, or some person having colored blood in his veins to the amount of at least one eighth. I believe it is settled by the courts of justice that when the quantity becomes less than one eighth, in law and in jurisprudence he is called a white man. Mr. TRUMBULL. That is so in some States; in others it is not. Mr. WILSON. I desire to make a suggestion. We are trying to get the best proposition; and I suggest that we amend the proposition of the committee by striking out the words “or previous condition of servitude” and inserting certain other words, so as to make it read: The right of citizens of the United States to vote and hold office shall not be denied or abridged by the United States or by any State on account of race, color, nativity, property, education, or religious belief.

The PRESIDING OFFICER. It is not in order now to offer that amendment, an amendment to an amendment being pending. 524

A. Drafting, doc. 13

Mr. WILSON. I know it is not in order to offer it at present; but I merely suggest it as an amendment which I think is better than the others, and which covers all the points. ... The PRESIDENT pro tempore. The question is on the amendment of the Senator from Michigan to the amendment of the Senator from Nevada. Mr. EDMUNDS. Let it be reported. The Chief Clerk. The amendment is to insert:

Mr. WILSON. I desire to submit an amendment, to strike out section one and insert the following: There shall be no discrimination in any State among the citizens of the United States in the exercise of the elective franchise in any election therein, or in the qualifications of office in any State, on account of race, color, nativity, property, education, or religious belief.

Mr. ANTHONY. It is now within half an hour of the usual time of meeting for to-­morrow, and in order to make the Journal read correctly there should be an adjournment, and I think, Mr. President, something is due to the officers of the Senate. We are enabled to go out and refresh ourselves, and we are enabled occasionally to get a few minutes’ sleep. These gentlemen, who serve us faithfully, have been here twenty-­four hours continually, except during the recess. I think we ought to adjourn until twelve o’clock.

Citizens of the United States of African descent shall have the same right to vote and hold office in States and Territories as other citizens electors of the most numerous branch of their respective Legislatures.

Mr. HENDRICKS. Senator Dixon desired me to say that he was paired off with my colleague [Mr. Morton] and the Senator from Maine, [Mr. Fessenden.] Mr. MORRILL, of Maine. On this question? Mr. EDMUNDS. On the general result. Mr. HENDRICKS. I do not know exactly. Mr. FESSENDEN. I think it may be considered a pair on this. I will not venture to vote on this question, as Mr. Dixon is absent. The PRESIDENT pro tempore. I was requested to state that on the passage of the resolution the Senator from Maine [Mr. Fessenden] and the Senator from Indiana [Mr. Morton] had paired with the Senator from Connecticut, [Mr. Dixon.] They would vote for, and Mr. Dixon against the passage of the resolution. The question being taken by yeas and nays, resulted—yeas 16, nays 35; as follows: YEAS—Messrs. Anthony, Chandler, Cole, Corbett, Cragin, Ferry, Harlan, Howard, Norton, Patterson of New Hampshire, Sumner, Thayer, Tipton, Wade, Welch, and Williams—16. NAYS—Messrs. Abbott, Bayard, Buckalew, Cameron, Cattell, Doolittle, Drake, Edmunds, Frelinghuysen, Har­ ris, Hendricks, Howe, Kellogg, McCreery, McDonald, Morgan, Morrill of Maine, Morrill of Vermont, Nye, Patterson of Tennessee, Ramsey, Rice, Saulsbury, Saw­ yer, Sherman, Spencer, Stewart, Trumbull, Van Winkle, Vickers, Warner, Whyte, Willey, Wilson, and Yates—35. ABSENT—Messrs. Conkling, Conness, Davis, Dixon, Fessenden, Fowler, Grimes, Henderson, Morton, Os‑ born, Pomeroy, Pool, Robertson, Ross, and Sprague—15. So the amendment to the amendment was rejected. ...

13 US Senate, Suffrage and Office Holding Amendment, Appointment of Electors, Passage of “Dual” Amendment February 9, 1869*

Mr. STEWART. I move that the Senate proceed to the consideration of the constitutional amendment. The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 402) proposing an amendment to the Constitution of the United States; the pending question being on the amendment of Mr. Wilson, to strike out section one of the proposed article of amendment reported by the Committee on the Judiciary and to insert: There shall be no discrimination in any State among the citizens of the United States in the exercise of the elective franchise in any election therein, or in the qualifications for office in any State, on * Cong. Globe, 40th Cong., 3rd Sess., 1029–44 (Feb. 9, 1869). 525

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account of race, color, nativity, property, education, or religious belief.

ballots go down into the box. Would that not, I submit to Senators, be a discrimination touching the exercise of the elective franchise on account of nativity? ... Education in any degree whatever, either as a qualification of suffrage or officeholding, a standard of intelligence above the most groveling and besotted ignorance is to be beyond and above the power, above the prerogative of the States. ... The PRESIDENT pro tempore. The question is on the amendment of the Senator from Massachusetts [Mr. Wilson] to the amendment proposed by the Senator from Nevada, [Mr. Stewart.] Mr. CONNESS. On that amendment I call for the yeas and nays. The yeas and nays were ordered; and being taken, resulted—yeas 31, nays 27; ... So the amendment to the amendment was agreed to. ... Mr. MORTON. I desire to renew the amendment I offered in regard to electing electors directly by the people. I think it was not correctly understood when the vote was taken upon it before. There certainly can be no objection to the amendment. It is very important. It is to be submitted separately; the one is not made dependent upon the other; and it will certainly add strength to the whole measure before the people. It will popularize the whole thing. I therefore offer the amendment again, and desire to have a vote of the Senate upon it. The PRESIDENT pro tempore put the question on the amendment; and declared that the noes appeared to have it. Mr. MORTON. I ask for the yeas and nays. The yeas and nays were ordered. Mr. CAMERON. I should be glad to hear the amendment read. The Chief Clerk read the amendment; which was to insert as an additional article the following:

Mr. WILSON. I do not wish to take up the time of the Senate in discussing this proposition. I simply ask a vote upon it, and I should like to have the vote taken by yeas and nays. ... The yeas and nays were ordered; and being taken, resulted—yeas 19, nays 24; ... So the amendment to the amendment was rejected. ... Mr. WILSON. I desire to offer an amendment to the amendment. It is a modification of the proposition that was acted on a short time ago. It is to strike out all of section one of the article reported by the committee, and to insert: No discrimination shall be made in any State among the citizens of the United States in the exercise of the elective franchise or in the right to hold office in any State on account of race, color, nativity, property, education, or religious creed.

I will simply say that this amendment is more comprehensive, fuller, and juster than any amendment that has been offered, I think, and therefore I think that it is strong enough, and I hope the Senate will adopt it. ... Mr. CONKLING. ... Had the Senator considered how far this may revolutionize and undo the constitutions, the enactments, and the customs of the States? Take the test of property. No discrimination in the exercise of the elective franchise in case of any election shall be made on the score of property. What becomes of all the elections held under provisions of municipal charters, which are participated in by freeholders or tax-­payers alone? ... But again, no discrimination whatever in the exercise of the elective franchise—I emphasize the expression “in the exercise of the elective franchise”—shall be made on account of nativity. Will some Senator tell me what the effect of this would be upon the reforms now suggested in reference to naturalization? . . . Suppose the State of New York requires that naturalized citizens shall produce their certificates of naturalization when their names go down upon the registry, and when their

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Article XVI The second clause, first section, second article of the Constitution of the United States shall be amended to read as follows: each State shall appoint, by a vote of the people thereof qualified to vote for Representatives in Congress, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress;

A. Drafting, doc. 14

but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector; and the Congress shall have power to prescribe the manner in which such electors shall be chosen by the people.

The Chief Clerk. The resolution now is:

Be it resolved, &c., (two thirds of both Houses concurring,) That the following articles be proposed to the Legislatures of the several States as amendments to the Constitution of the United States, either of which, when ratified by three fourths of said Legislatures, shall be held as part of said Constitution.

Mr. HARLAN. I wish the Senator who has offered this amendment would explain what he intends to effect by it; in what mode it changes the present manner of electing electors. ... Mr. MORTON. As the Constitution now is, it provides that—

... Mr. CHANDLER. I desire to ask if the two amendments can be voted upon separately, for I wish to vote for one and against the other. The PRESIDENT pro tempore. They cannot be separated. The whole proposition is now one resolution, and it cannot be divided. ... The PRESIDENT pro tempore. On the passage of this resolution the yeas and nays must be taken to ascertain whether the constitutional two thirds required is obtained. The Clerk will therefore call the roll. The question being taken by yeas and nays, resulted—yeas 39, nays 16; ... The PRESIDENT pro tempore. Two thirds having voted in the affirmative, the joint resolution is passed.

“Each State shall appoint in such manner as the Legislature shall direct, a number of electors equal to the whole number of Senators and Representatives.”

In other words, it is now left to the Legislature. The Legislature may elect the electors themselves, as was always the case in South Carolina. That is a very dangerous power, placing it in the power of one State, in a close presidential election, where the election might turn upon the vote of that State, with a Legislature elected perhaps a year before, to meet and repeal the law permitting the election of electors to the people and appoint them by a direct vote of the Legislature, as in the case of South Carolina. Mr. HENDRICKS. Florida so elected last year. Mr. MORTON. Yes, sir. This amendment requires these electors to be appointed directly by the people, and leaves to Congress the mode of regulating that appointment or selection just as Congress may now regulate the election of Representatives. Mr. CONKLING. It makes no change except to guaranty an election by the people. Mr. MORTON. That is all; to guaranty an election by the people. ... The Chief Clerk proceeded to call the roll on the amendment. Mr. HENDRICKS, (after first voting in the affirmative.) I am not sufficiently satisfied that this ought to be adopted at this time. Therefore, I change my vote; I vote “nay.” The result was then announced—yeas 37, nays 19; ... So the amendment was agreed to. ...

14 Elizabeth Cady Stanton, “Women and Black Men,” Revolution (New York, NY) February 11, 1869, p. 88

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The proposed amendment for “manhood suffrage” not only rouses women’s prejudices against the negro, but on the other hand his contempt and hostility towards her as an equal. In the heat of debate in the late “Woman’s National Suffrage Convention” at Washington, Mr. Downing, a colored man (with such a woman as Lucretia Mott in the chair), distinctly said that in his opinion Nature intended that “the male should dominate over the female everywhere.” Young Dr. Purvis also remarked that woman was the black man’s worst enemy. And as this is the feeling among the majority of all colored men, we would ask the women of the nation if they think the enfranchisement of Africans, Chinese,

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and all the ignorant foreigners the moment they touch our shores, will tend to liberalize legislation for women? Black men have been citizens in the District of Columbia two years. Have they made any move for the enfranchisement of women there? Nay, nay, they are at this moment more hostile to woman than any class of men in the country. Just as the democratic cry of a “white man’s government” created the antagonism between the Irishman and the negro, which culminated in the New York riots of ‘63, so the republican cry of “manhood suffrage” creates an antagonism between black men and all women, that will culminate in fearful outrages on womanhood, especially in the southern states. While we fully appreciate the philosophy that every extension of rights prepares the way for greater freedom to new classes and hastens the day for liberty to all, we, at the same time, see that the immediate effect of class enfranchisement results in greater tyranny and abuse of those who have no voice in the government. Had Irishmen been disenfranchised in this country, they would have made common cause with the negro in fighting for his rights; but when exalted above him, they prove his worst enemies. The negro will be the victim, for a generation to come, of the prejudice engendered by making this a white man’s government. While the enfranchisement of each new class of white men was a step towards his ultimate freedom, it increased his degradation in the transition period and he touched the depths of human misery when all men but the negro were crowned with citizenship. Just so with woman, while the enfranchisement of all men hastens the date for justice to her, it makes her degradation more complete in the transition period. It is to escape the added tyranny, persecutions, insults, horrors, that will surely be visited upon woman, in the establishment of an aristocracy of sex in this republic, that we raise our indignant protest against this wholesale desecration of woman in the pending amendment, and earnestly pray the rulers of this nation to consider the degradation of disfranchisement. Our republican leaders see that it is a protection and defence for the black man, giving him new dignity, self-­respect, and making his rights more sacred in the eyes of his enemies. It is mockery to tell woman she is excluded from all political privileges on the ground of respect; because the laws and constitutions for her, in common with all

disfranchised classes, harmonize with the degradation of the position. E. C. S.

15 US House, Suffrage Amendment, Nonconcurrence with Senate Proposal February 15, 1869*

Mr. BOUT WELL. I move to suspend the rules for the purpose of taking up from the Speaker’s table the amendments of the Senate to the joint resolution (H.R. No. 402) proposing an amendment to the Constitution of the United States. Mr. BROOKS. I demand the yeas and nays on that motion. The yeas and nays were ordered. The question was taken; and there were—yeas 126, nays 31, not voting 65; ... So (two thirds voting in favor thereof ) the rules were suspended, and the amendments of the Senate were taken up and read, as follows: Line two add the letter “s” to the word “article.” Line three strike out the word “an” and add “s” to “amendment.” Line four after “State” insert “either of.” After line six insert “first amendment.” Strike out the first section and insert in lieu thereof: No discrimination shall be made in any State among the citizens of the United States in the exercise of the elective franchise or in the right to hold office in any State on account of race, color, nativity, property, education, or creed. At the end of the resolution insert the following: Second amendment: Article —. The second clause, first section, second article of the Constitution of the United States shall be amended to read as follows:

* Cong. Globe, 40th Cong., 3rd Sess., 1224–26 (Feb. 15, 1869). 528

A. Drafting, doc. 15

Each State shall appoint, by a vote of the people thereof qualified to vote for Representatives in Congress, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative or person holding an office of trust or profit under the United States shall be appointed an elector; and the Congress shall have power to prescribe the manner in which such electors shall be chosen by the people. Amend the title of the resolution by striking out “an” and adding “s” to “amendment.”

Mr. BOUTWELL. Here is a proposition in regard to electors which has not been considered in this House. The proposition concerning suffrage has been materially changed. I have considered whether it is practicable to concur in the amendments of the Senate with an amendment, but I have come to the conclusion that that, as a matter of business, is impracticable. I see no way in the present condition of things except to non-­ concur in the action of the Senate, and to ask for a committee of conference; and I make that motion. Mr. BINGHAM. I move to concur, Mr. Speaker; and if the gentleman will allow me to state, I ask the attention of the House to the fact that the additional amendment by the Senate, not heretofore considered in the House, leaves the apportionment of electors among the States as it always has been under the Constitution; that is to say, according to the number of Senators and Representatives to which each State shall be entitled, but it provides they shall hereafter be chosen by the popular vote. It provides further that the Congress of the United States shall have power to prescribe the districts and time of election, excluding all officers of the United States or all persons who hold office of honor or trust under the United States from the position of electors. It substantially leaves the Constitution in respect to the apportionment of electors as it is but gives the people the direct choice of them, subject to the control of Congress. ... The SPEAKER. The motion to concur takes precedence of the motion to non-­concur. Mr. BOUT WELL. I wish to state the particular objection I have to concurring in the amendment of the Senate. Mr. BINGHAM. I will yield to the gentleman for that purpose. 529

Mr. BOUTWELL. Mr. Speaker, I think there are two fatal objections to the proposition coming from the Senate. I could enumerate many others of great magnitude; but in regard to the proposition concerning suffrage, if there is any one purpose we have had in view in regard to this amendment of the Constitution it has been to secure to the slave class the right to vote. Now, then, this amendment, as it comes from the Senate, says there shall be no discrimination in the right to vote or hold office on account of race, color, nativity, education, property, or creed. But the point I make against this proposition is that it leaves it open to the States to declare by law that persons who have been held in slavery, or whose mothers were slaves, shall neither vote nor hold office; and this amendment to the Constitution, if adopted, would furnish no means by which that evil could be remedied, because the slave class, as is well known, are of no specific color and are of no particular race, and can only be described by the use, in substance, of that phrase, which gentlemen here seem to avoid, but which has grown out of the historical fact of the age, and which we must meet by the use of language explicit and clear. We must say that there shall be no discrimination on account of the previous condition of slavery. There is no security in the proposition, as it comes from the Senate, for this great class of American citizens. And this is but one objection to the first amendment of the Senate. ... Mr. BINGHAM. If the amendment should be concurred in, and it should afterwards be ratified, I will undertake to say, as a Representative of the American people, that it would be henceforth out of the power of any State of the Union to discriminate against any class of natural-­born citizens of the Republic on account of slavery or servitude. For one, having reflected much on this subject, I am now ready to pass a law which shall be effective and enforcing it in our own courts, against any such despotism being attempted by any State in the union, in the event of the adoption and ratification of this amendment. I will add further, Mr. Speaker, that when you come to consider an amendment to the fundamental law the question is, what is the grievance to be remedied, what is the injury, what is the wrong you wish to redress? I ask the gentleman from Massachusetts to consider that there is not a State constitution in America which disqualifies from office any human being on account of

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previous condition of servitude. The disqualification is on account of color, on account of the accident of birth, on account of want of educational qualifications, on account of creed, and on account of want of property; and all these grievances are remedied and covered by this amendment, every one of them. One reason why I ask the House to concur is that this Congress is in the last days of its existence, and every man knows that unfinished business does not survive, but perishes with it. By refusing to concur with the Senate you may never have another opportunity of presenting this question to the consideration of the American people. ... As to servitude, that is embraced in the words color, race, and nativity. . . . Every man knows that it would be a violation of the letter and spirit of the proposed amendment, and the thirteenth and fourteenth articles already ratified. ... Mr. BOUTWELL. I now demand the previous question. The previous question was seconded and the main question was ordered. The SPEAKER. The first question is upon the motion of the gentleman from Ohio [Mr. Bingham] to concur in the amendments of the Senate. Mr. SCOFIELD. Are the two amendments divisible? The SPEAKER. They are. Mr. SCOFIELD. Then I ask that the amendment of the Senate with regard to suffrage be first voted upon separately. Mr. SPEAKER. The question will first be taken upon concurring in the amendment of the Senate with regard to suffrage. A two-­thirds vote is necessary to decide this question in the affirmative. Mr. ELDRIDGE. I call for the yeas and nays. The yeas and nays were ordered. ... The question was taken; and there were—yeas 37, nays 133, not voting 52; ... So (two thirds not voting in favor thereof ) the amendment was not concurred in. The SPEAKER. The question recurs upon concurring in the remainder of the Senate amendments. The amendments were not concurred in.

16 US Senate, “Dual” Amendment on Suffrage, Office Holding, and Electors; Vote to Recede and Adopt Suffrage Amendment Proposed by House February 17, 1869*

Mr. STEWART. I move that the Senate take up the message from the House of Representatives asking for a conference on the constitutional amendment. ... The motion was agreed to. ... Mr. STEWART. I propose to move to recede from our amendment and concur in the House resolution. ... Mr. WILSON. I feel constrained to vote against the motion submitted by the Senator from Nevada. I had hoped, such is the importance of the subject, that early in the session Congress would have passed a constitutional amendment providing for the equality of citizens of the United States in their right to vote and their right to be voted for. But early action was not taken, and when the proposition came from the House of Representatives I thought it very imperfect. In the lights of to-­day it seems to me that we are putting in peril the rights and privileges of citizens in portions of the country. We are having a contest over the action of the State of Georgia. There the black man voted and was permitted to hold office. The Legislature, without raising the question as to their right to vote, raised the question as to their right to hold office, and turned out the colored members. That question is here, and Georgia is not represented in this body on account of that fact. Now, sir, the amendment of the House of Representatives leaves out the question of holding office. I should have been well content to take that amendment had it applied to holding office as well as to voting. The amendment that came from the Committee on the Judiciary, I think, was a far better one, for it provided not only for voting, but for holding office. I should be content to take that amendment. My own amendment to the Constitution, adopted 530

* Cong. Globe, 40th Cong., 3rd Sess., 1284–318 (Feb. 17, 1869).

A. Drafting, doc. 16

by the Senate, I am sorry to find, is too broad, comprehensive, and just to be sustained by the country. ... I should cordially concur in this motion to recede if it did not, in my judgment, give an encouragement to the men in Georgia who have smitten down colored representatives in the Legislature, and if it would not be an inspiration to that class of men, that while they must concede suffrage to three quarters of a million of colored men they may refuse to permit them to sit on juries or to hold office. ... Mr. SHERMAN. The Senator from Nevada makes a double motion. A vote must be taken on both branches of that motion when a division is asked for, and consequently there is no final vote. He makes a motion to recede and to agree. We take the question first on the motion to recede, which is one half of his motion. Mr. HOWARD. Then the motion is divisible. Mr. SHERMAN. It is divisible. Then we take a vote on the motion to agree, which requires a two-­thirds vote.* There is no difficulty in coming at it. ... The PRESIDENT pro tempore. The question is on receding from the amendments made by the Senate. Mr. WILLIAMS. I call for the yeas and nays. The yeas and nays were ordered; and the Secretary proceeded to call the roll. ... The result was announced—yeas 33, nays 24; ... So the Senate resolved to recede from its amendments. The PRESIDENT pro tempore. The question now is on the latter part of the motion of the Senator from Nevada. Will the Senate agree to the proposition of the House of Representatives? ... The question being taken by yeas and nays, resulted—yeas 31, nays 27; ... The PRESIDENT pro tempore. Two thirds of the Senate not having voted in the affirmative, the resolution is rejected. * [Because the second vote on Stewart’s motion was on the House’s proposed amendment in a form not yet addressed by the Senate, Article V of the Constitution required a two-­thirds vote by the Senate. —Ed.]

Mr. STEWART. I move that the Senate proceed to the consideration of Senate joint resolution No. 8, proposing an amendment to the Constitution of the United States. ... The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (S.R. No. 8) proposing an amendment to the Constitution of the United States. Mr. HOWARD. Let the resolution be read. The Chief Clerk. The resolution when last up was amended to read as follows: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two third of both Houses concurring.) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid as part of the Constitution, namely, Article XV. The right of citizens of the United States to vote and hold office shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legislation.

Mr. STEWART. I move to insert the word “by” before the words “any State;” so as to read, “shall not be denied or abridged by the United States or by any State.” The amendment was agreed to. ... The PRESIDING OFFICER. The joint resolution having been read three times, the question is, Shall it pass? Mr. STEWART and others. On that question let us have the yeas and nays. The PRESIDING OFFICER. It must be taken by yeas and nays, as it requires a two-­thirds vote. ... The question being taken by yeas and nays, resulted—yeas 35, nays 11; ... The PRESIDING OFFICER. Two thirds of the Senate having voted in the affirmative, the joint resolution is passed. 531

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have urged them to some act which seemed likely to jeopard party. Then Sir Oracle was never more sententious, more full of “wise saws and modern instances” than they. The inch they were willing to move ahead was hardly visible to the naked eye. How they lectured us on the “too fast” and “too far” policy! Now in an emergency which calls for the most delicate handling, they tear up not one admitted abuse, but include in the grasp half a dozen obstinate prejudices, which no logic of events has loosened. For the first time in our lives we beseech them to be a little more politicians—and a little less reformers—as those functions are usually understood. Perhaps we seem to some too urgent and pressing in this matter. Our urgency comes from an ill-­defined conviction that we are living now in the easiest hour for the accomplishment of a Constitutional Amendment in this particular. Not that we have any fear of the final result. In time this measure must come. There our faith is fixed, rooted as the everlasting hills. But beside that the next year will be one extraordinarily busy in office-­seeking and change, we feel confident that the next Administration will be a reactionary one—it will do what in it lies to tone down public anxiety and enthusiasm. Gen. Grant will break no pledges, because he has made none. But he will be felt as belonging to the stand still party. ... WENDELL PHILLIPS.

17 Wendell Phillips, “The Senate and the Proposed Amendment,” National Anti-­Slavery Standard (New York, NY) February 20, 1869, p. 2

We see the action of the Senate touching the Constitutional Amendment with great anxiety. The House had passed a simple measure, one covering all the ground that the people are ready to occupy. It answered completely the lesson of the war. Its simplicity gave it all the chance that exists for any form of Amendment being ratified. Why was it not left in that shape? Leaving out of sight the manifest risk of attempting too much, the very fact of the little time left before the session closes, was warning enough to clutch at anything satisfactory and to run no risk of possible disagreement between the Houses. We wait further knowledge before indulging any conjectures as to the motive for this strange course of the Senate; before even suspecting that it grew out of any concealed hate toward the whole measure and was indeed a trick to defeat it. Whoever, in either House, gratifies some personal whim to the extent of defeating or even postponing this measure will incur the gravest responsibility. We exhort every man who professes himself a friend of liberty to drop all undue attachment to any form of words and to coöperate, heartily, earnestly, with the great body of the members in carrying through as promptly as possible, any form which includes the substance of a Constitutional protection to the votes and right to office of the colored race. That is the work of the hour. That is the lesson the war has burned in on the brain and conscience of the Nation. To include with this, “Nationality, education, creed,” etc., is utter lack of common sense. Such a total forgetfulness of the commonest political prudence as makes it hard to credit the good intentions of the proposers. Our disappointment is the greater because we had reason to believe that the Senators who have this matter in charge, would be the last men to forget themselves at such a crisis. They have been timidly “practical,” ludicrously tied up to precedents, when, in times past, we

18 US House, Suffrage Amendment, Addition of Language Protecting the Right to Hold Office February 20, 1869*

The rules being suspended, the joint resolution (S.R. No. 8) proposing an amendment to the Constitution of the United States was taken from the Speaker’s table, and read a first and second time. The question was upon ordering the joint resolution to be read a third time. The joint resolution, which was read, was as follows: * Cong. Globe, 40th Cong., 3rd Sess., 1425–28 (Feb. 20, 1869).

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Mr. BOUT WELL. I cannot yield for debate. If the gentleman will allow his amendment to be read I will yield for that purpose. Mr. BINGHAM. I desire to move that the first section of this proposed amendment be amended so as to read as follows:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two third of both Houses concurring.) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three fourths of said Legislatures, shall be valid as part of the Constitution, namely,

The right of citizens of the United States to vote and hold office shall not be denied or abridged by any State on account of race, color, nativity, property, creed, or previous condition of servitude.

Article XV. Sec. —The right of citizens of the United States to vote and hold office shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of servitude. Sec. —The Congress, by appropriate legislation, may enforce the provisions of this article.

I ask the gentleman to allow me to have a vote on the amendment I have indicated. Mr. BOUT WELL. Mr. Speaker, the House will remember that two votes have been taken in this body rejecting a proposition, I think, substantially like that which the gentleman from Ohio [Mr. Bingham] desires now to submit. Mr. BINGHAM. The gentleman will allow me to interrupt him. The House will bear witness, Mr. Speaker, that when this question was last before us to be voted on the gentleman from Massachusetts notified the House that the proposition omitted the words “or on account of previous condition of servitude,” which phrase is now inserted; and I beg the gentleman to consider that the vote which was given by this House rested upon that suggestion, and in so far as it did I honor the gentlemen who gave that vote, though I was constrained to differ with the gentleman in his legal conclusions. Mr. BOUTWELL. The proposition of the gentleman from Ohio does contain words which were omitted from the amendment as it came from the Senate; but it is also coupled with provisions which, I believe, have been distinctly rejected by this House. At any rate, they were argued before the House by the gentleman from Ohio and myself, as well as others, and the House did not accept the proposition which he then submitted. Under the circumstances in which we are placed I consider it to be my duty to keep the House as closely as possible to the differences between the two branches upon the proposition now before us; and those differences have finally resolved themselves into this: the House, by two votes, has declared its desire that the amendment to be submitted to the people should contain only a provision by which the equal rights of the people in the matter of voting would be secured, with all the legal consequences and rights of that provision, among which, as I understood then and understand

Mr. Boutwell took the floor. Mr. WOODWARD. I desire to move an amendment to the joint resolution, not to the proposed amendment to the Constitution. Mr. BOUT WELL. I cannot yield now for that purpose. Mr. BINGHAM. I appeal to the gentleman from Massachusetts [Mr. Boutwell] to allow me to offer an amendment. Mr. BOUT WELL. I will hear the gentleman from Pennsylvania [Mr. Woodward] first. Mr. WOODWARD. My amendment is to the resolution, not to the proposed constitutional amendment. It is in effect precisely that which was offered in the Senate, limiting the submission of this amendment to Legislatures to be elected hereafter, not to those now elected. Mr. BOUT WELL. I cannot yield to allow such an amendment to be offered. I have no idea that Congress has the right, under the Constitution, to select future Legislatures to act upon proposed amendments. Mr. WOODWARD. If the gentleman will allow me the opportunity I will answer his argument. Mr. BOUT WELL. I decline to yield further at this time to the gentleman from Pennsylvania, [Mr. Woodward.] I now yield to the gentleman from Ohio, [Mr. Bingham.] Mr. BINGHAM. I desire to offer an amendment to the first section of the proposed article in the very words heretofore agreed to in the Senate by a vote of 40 to 16. The object is to save this great act of justice from the limitation imposed upon it. 533

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now, is the right to hold office. The only difference, then, between the House and the Senate is upon the question whether the proposed constitutional amendment shall declare, in express language, the right of all the people to hold office as well as to vote. ... Mr. LOGAN. I desire to move to strike out the words “and hold office,” so that the resolution shall be left in the precise language in which it was sustained by the House and went to the Senate. Mr. SPEAKER. Does the gentleman from Massachusetts allow it to be offered? Mr. BOUTWELL. I do. Mr. RANDALL. Does the gentleman from Illinois think that they are capable of voting and not of holding office? Mr. LOGAN. Mr. Speaker, I will state to the House the reason why I make this amendment. I believe the resolution as it passed the House to be a proper one, and that we should not adopt such a one as comes to us from the Senate. The Constitution of the United States does not prohibit the right to hold office except in one particular place, where it provides that the President and Vice President of the United States shall be native-­ born citizens. The language of the Constitution in all other cases is “person.” Now, sir, I believe, further, that the intention of the Constitution of the United States was to leave to the States to determine what persons should hold office. I believe it has been properly left there by the Constitution, and that [it] should be allowed to remain there. That it is necessary to put in the words “and hold office” to give the colored people the right to vote is all imagination. There is no law for it whatever. It has grown out of the action of the Legislature of Georgia, and there is no law for it. What we should do, in my judgment, is to give all men without regard to race or color the right of suffrage, and when we give them the right to vote they will take care of the right to hold office. Let us pass the resolution as we passed it before, and let it go to the Senate. If they fail to give the right of voting to these people; if the men who have been advocating manhood suffrage for forty years now refuse to put it in the Constitution; if they will trample down the principles they have been advocating for over forty years, let the responsibility rest on them. ... Mr. BINGHAM. I now move my amendment, to strike out in line three the words “by the United States

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or,” and to insert in line four the words “nativity, property, creed;” so that it will read as follows: The right of citizens of the United States to vote and hold office shall not be denied or abridged by any State on account of race, color, nativity, property, creed, or previous condition of servitude.

Mr. BOUTWELL. I yield ten minutes to the gentleman from Ohio. Mr. BINGHAM. I can hardly hope in ten minutes to state all I ought to say in connection with this matter. ... As to the proposition of the gentleman from Illinois, [Mr. Logan,] and the suggestion of the gentleman from Massachusetts, [Mr. Butler,] I agree with both of them. If you will so amend the Senate amendment as I have proposed you will extend equal protection to the great body of American citizens, native-­born and naturalized, black and white. The proposition of the gentleman from Illinois is eminently proper, wise, and just if the amendment be extended to all classes of citizens, as I propose, and I shall vote for it. The suggestion of the gentleman from Massachusetts, in the event that the proposition shall be so amended as to include all classes of citizens, has great significance, one that the great body of the people will take care of, that electors, subject only to the limitations now imposed by the national and by State constitutions as to age and residence, shall have equal right, in the exact words of the gentleman from Massachusetts, “to be elected to the several offices.” ... Why, equality of the law is the very rock of American institutions, and the reason why I desire to amend this proposition of the Senate is that as it stands it sweeps away that rock of defense by providing only against State usurpation in favor of colored citizens, to the neglect of equal protection of white citizens. While colored citizens are equal in rights with every other class of citizens before the majesty of American law, as that law stands written this day, I am unwilling to set them above every other class of citizens in America by amending the Constitution exclusively in their interest. The import of my amendment is to protect all classes alike, and I ask a vote upon it. ... I ask leave of this House to insert the additional words “nativity, property, creed.” By the Senate amendment as it now stands you will strike down the constitution of Ohio and the constitutions of twenty other

A. Drafting, doc. 19

States, in that they unjustly and wrongfully discriminate among citizens on account of color. If my amendment shall be adopted you will strike down as well the constitutions of other States, as for example the State of Rhode Island, which wrongfully and unjustly discriminates this day by property qualifications against naturalized citizens of the United States as compared with native-­ born citizens, and I use the words of her constitution. I would have inserted the other word “education,” but I know that the general sense of the American people is so much for education, that chief defense of nations, that if they will not take care of that interest they will take care of nothing. ... The Clerk reported the first amendment offered by Mr. Logan, to strike out the words “and hold office.” Mr. RANDALL. I demand the yeas and nays on that amendment. The yeas and nays were ordered. The question was taken; and it was decided in the negative—yeas 70, nays 95, not voting 57; ... So the amendment was disagreed to. ... The result having been announced as above, the question recurred on the amendment of Mr. Bingham, . . . so that it will read as follows: The right of citizens of the United States to vote and hold office shall not be denied or abridged by any State on account of race, color, nativity, property, creed, or previous condition of servitude.

Mr. KELSEY and Mr. WHITTEMORE demanded the yeas and nays. The yeas and nays were ordered. The question was taken; and it was decided in the affirmative—yeas 92, nays 70, not voting 60; ... So the amendment was agreed to. ... The joint resolution, as amended, was then read the third time. The question was upon the passage of the joint resolution. Mr. ELDRIDGE. Upon that question I call for the years and nays. The yeas and nays were ordered. The question was taken; and it was decided in the affirmative—yeas 140, nays 37, not voting 46;

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... So (two thirds voting in the affirmative) the joint resolution was passed.

19 US Senate, Suffrage Amendment, Call for Conference with House February 23, 1869*

Mr. STEWART. I now move to take up the constitutional amendment. The motion was agreed to; and the Senate proceeded to consider the amendments of the House of Representatives to the joint resolution (S.R. No. 8) proposing an amendment to the Constitution of the United States. The PRESIDENT pro tempore. The Senator from Nevada moves that the Senate disagree to the amendments of the House of Representatives and ask for a committee of conference. ... The PRESIDENT pro tempore. The question now is on disagreeing to the amendment of the House of Representatives, and asking a committee of conference; on which question the yeas and nays have been ordered. The question being taken by yeas and nays, resulted—yeas 32, nays 17; ... So the motion was agreed to. The PRESIDENT pro tempore. How shall the committee be appointed? Mr. STEWART. By the Chair. The PRESIDENT pro tempore. If no objection be made that course will be pursued. Mr. Stewart, Mr. Conkling, and Mr. Edmunds were subsequently appointed the committee of conference on the disagreeing votes of the two Houses on the amendments to the joint resolution (S.R. No. 8) proposing an amendment to the Constitution of the United States.† * Cong. Globe, 40th Cong., 3rd Sess., 1481 (Feb. 23, 1869). † [On February 23, the Senate received notice that the House had appointed George S. Boutwell, John A. Bingham, and John A. Logan to the conference committee on S.R. No. 8. See Cong. Globe, 40th Cong., 3rd Sess., 1495 (1869). —Ed.]

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ready to vote upon the report of the committee. I demand the previous question unless some gentleman desires to debate the report, which I hope will not be the case at this late hour of the session. The SPEAKER. The Chair will state that it requires a two-­thirds vote to agree to the report. ... Mr. BOUT WELL and Mr. NIBLACK called for the yeas and nays on agreeing to the report of the committee of conference. The yeas and nays were ordered. The question was taken; and there were—yeas 144, nays 44, not voting 35; ... The Speaker. The Chair votes in the affirmative upon agreeing to the report of the committee of conference, which in the opinion of the Chair requires a two-­ thirds vote. Upon this question the yeas are 145, nays 44. Two thirds having voted in the affirmative, the report is agreed to.

20 US House, Suffrage Amendment, Removal of Language Protecting Office Holding, Passes without Debate February 25, 1869*

Mr. BOUT WELL. I rise to make the following privileged report: The committee of conference on the disagreeing votes of the two Houses on the joint resolution (S. No. 8) proposing an amendment to the Constitution of the United States having met, after full and free conference, have agreed to recommend and do recommend to their respective Houses as follows: That the House recede from their amendments and agree to the resolution of the Senate, with an amendment, as follows: In section one, line two, strike out the words “or hold office;” and that the Senate agree to the same. GEORGE S. BOUT WELL , JOHN A. BINGHAM, JOHN A. LOGAN, Managers on the part of the House. WILLIAM M. STEWART, ROSCOE CONKLING, Managers on the part of the Senate.

21 US Senate, Suffrage Amendment, Debate and Passage February 26, 1869†

The PRESIDENT pro tempore. A special order is before the Senate, being the report of the committee of conference on joint resolution (S.R. No. 8) proposing an amendment to the Constitution of the United States. The report of the committee of conference was read, as follows:

... Mr. BOUTWELL. I propose to let the House understand what this report of the committee of conference is. It is the original proposition of the Senate with the words “and hold office” stricken out; so that if the report be agreed to the proposed amendment will read:

The committee of conference on the disagreeing votes of the two Houses on the joint resolution (S.R. No. 8) proposing an amendment to the Constitution of the United States having met, after full and free conference have agreed to recommend, and do recommend, to their respective Houses as follows: That the House recede from their amendments and agree to the resolution of the Senate, with an amendment, as follows:

The right 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.

I am happy to be able to say, as the report shows, that it is unanimous so far as the managers on the part of the House are concerned, and I presume that the House is * Cong. Globe, 40th Cong., 3rd Sess., 1563–64 (Feb. 25, 1869).

† Cong. Globe, 40th Cong., 3rd Sess., 1623–41 (Feb. 26, 1869).

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In section one, line two, strike out the words “or hold office;” and that the Senate agree to the same. WILLIAM M. STEWART, ROSCOE CONKLING, Managers on the part of the Senate. GEORGE S. BOUT WELL , JOHN A. BINGHAM, JOHN A. LOGAN, Managers on the part of the House.

the Constitution as presented is entirely satisfactory to me, but because I think that it is at present the best that can be obtained. I must content myself, therefore, with the best I can get and run the risk of the future. ... Mr. EDMUNDS. ... I felt obliged to decline to sign this report on the ground, among others, that it had gone entirely beyond any authority that the committee had to treat upon the subjects of disagreement between the two Houses. But suppose that, as we sometimes do in this body in order to attain what gentlemen may suppose to be a great end, we fly in the face of the law, break down the barriers that parliamentary propriety and the success of good legislation have imposed upon us by our own consent, and disregard the law, where do we find ourselves then on the merits of this proposition? What are the failures that we are attempting to redress by a change in the fundamental law of the nation? What is the grand moving cause that impels us to withdraw from the States of this Union who have hitherto exercised it entire power over the political question of the right of suffrage and the right to hold office? Is it not that in many of these States there are large classes of citizens who are practically ostracised from the Government, and who therefore reside in a community that, while it has the shadow and pretense of republicanism, has none of its reality? Most certainly it is; and therefore you intend to interpose the nation’s will, found in the assent of three fourths of the States, to compel a real republicanism and a real democracy in these States; and what are the steps on this report that you propose to take to do it? You propose to take the very steps—I repeat what I said a moment ago on that subject—you propose to take the very steps that all history has demonstrated to be deadly to a republic. To be sure the instances are not frequent, for few peoples have been so wanting in intelligence and in a knowledge of the philosophy of a republican government as ever to institute a distinction between the right of a citizen to participate, if he is to participate in the government at all, entirely; and if you give him the right to have a voice in the government, that voice cannot have any live expression unless it enables him to choose from among his fellow-­ citizens the man who suits him for his representative, instead of confining him, as this amendment does, to a chosen aristocratic class, saying to a citizen of a free re-

Mr. STEWART. I call for the reading of the joint resolution as it will read if amended. The Chief Clerk read as follows: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two thirds of both Houses concurring.) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which when ratified by three fourths of said Legislatures shall be valid as part of the Constitution, namely:

Article XV. Section 1. The right of citizens of the United States to vote shall not be denied or abridged on account of race, color, or previous condition of servitude. Sec. 2. The Congress by appropriate legislation may enforce the provisions of this article.

... Mr. BAYARD. . . . The committee of conference have, then, presented to the Senate, by way of amendment, precisely the same proposition that, by a vote of 31 against 27, the Senate of the United States rejected, I think, last Tuesday week. I do not know, I cannot tell, what may be the motives which actuated the votes of honorable Senators then. They may change those votes to-­day; but if those votes remain this amendment is lost, because it is the same which has already been rejected. It is for them to explain to their own constituents and explain to the people of the United States the grounds and reasons of the change of a vote given after a full discussion before, after the Senate had receded from all its own amendments, when the direct proposition came before them; and that same amendment is the amendment now proposed to us to be adopted. Mr. HOWARD. The question is upon concurring in the report of the committee of conference. I shall vote to concur in the report not because this amendment to 537

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public, “You have rights of manhood, you have rights of equality, but you shall exercise those rights in choosing some one of us to rule over you instead of some one of your fellow-­citizens whom you prefer.” ... You will find, if you let the thing run on, that the example of Georgia will be imitated in all the other States, and you will have set up in this Republic a class aristocracy depending not upon intelligence, upon which some philosophers say a distinction may be made—I do not go into it—depending not upon faith or creed, upon which some enthusiasts suppose a distinction may be made, but depending upon the mere accident of the complexion of a human being, whom you say, as far as you go, is entitled to equal rights and privileges as a citizen of the country. ... Mr. WILSON. ... Do not tell me, sir, that the right to vote carries with it the right to hold office. It does no such thing. If there is nothing said about it the fair inference is that it does, but if there is a provision in a State constitution otherwise silence does not annul or overthrow that constitutional or legal declaration. No man in the world has a right to hold an office. The people have a right to vote, and they have the right to put terms and conditions to the offices that they make. ... I do not believe in anybody’s right to make terms and conditions founded on race or color that cannot be overcome; but many of the States have done it, and silence will not overthrow what they have done. I believe, however, that if the black men have the right to vote they and their friends in the struggle of the future will achieve the rest. Therefore I am willing now to give them the right to vote if I cannot get for them the right to be voted for. I will take that if I cannot get any more. ... Mr. DAVIS. The honorable Senator from Nevada, who has just taken his seat, has made two appeals to his party that must bring them up to the work; they cannot escape it. In the first place, he says that unless the proposed amendment is passed now some of the Legislatures of the States will go out of office and existence and new Legislatures will have to be elected, and therefore the amendment cannot be passed. The honorable Senator from New Jersey gives him another item, which my

honorable friend seizes upon in the fervor of the moment and uses with a great deal of force to bring his friends in this Chamber up to the work. He says that in the next Congress there will not be two thirds of the House who will be such Republicans as to be willing to pass this amendment. That presents the party in such a strait that it must upon compulsion do the work now. ... But the case would not be so desperate as the honorable Senator stated. The party in the House would only have to resort to its ordinary tactics, and the tactics that have been practiced in this body also. They would only have to expel a lot of the Democratic members from the two Houses to give them the requisite majority of two thirds, and they would be in full possession again. They would only have to send back Mr. Stockton, from the State of New Jersey, and put in his stead his competitor when he was recently elected. They would only have to contest the seats of a couple of members from the State of Kentucky and a few members from other States and expel them from their seats, and then, instead of the people, the Republicans of the House elect their successors; and in that way they would put themselves in complete possession of two thirds of both Houses of Congress. I present this view to comfort my honorable friend from Nevada and also the honorable Senator from New Jersey, and to assure them that their case is not so desperate as it seems to be and is entirely within the reach of the medicines that they have heretofore applied to similar conditions both in the House and in the Senate. [Laughter.] One word upon this amendment. . . . If it was my principle that the negro was a proper depositary of the right of suffrage I would unhesitatingly vote in favor of extending the proposition and giving him the right to hold office, which I deem to be a right of less force and efficiency than the right to vote. But Mr. President, I deny that the negro has the proper capacity to exercise this right, and for that reason I vote inflexibly against—I oppose in every form that I can; I have from the beginning, and I will to the end— not restoring, but to giving him in the first instance the right to either vote or to hold office. . . . I hold that he is incapable of a wise and safe exercise of either of those rights in our Government. The denial of those rights is not in conflict with natural right, because there is no natural right to vote or to hold office in any Government. I would not concede to him either of those rights, 538

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because I believe that they would prove in their exercise mischievous to the well-­being of society at large, white and black, and not less to the negro population than to the white population. ... The PRESIDENT pro tempore. The question is on concurring in the report of the committee; and on this question the yeas and nays must be called.

The question being taken by yeas and nays resulted— yeas 39, nays 13; ... The PRESIDENT pro tempore. On this question the yeas are 39, and the nays are 13. Two thirds of the Senators present having voted in the affirmative, the report is agreed to.

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B. Ratification

Introduction to Part 2B 1. Missouri, State Legislature Ratifies Partially Reported Fifteenth Amendment (Mar. 1, 1869) 2. “Changing the Constitution by Telegraph,” Daily State Register (Mar. 13, 1869) 3. “Ratifying the Amendment,” Daily Evening Bulletin (Mar. 4, 1869) 4. President Ulysses S. Grant, First Inaugural Address (Mar. 4, 1869) 5. Indiana, Democrats Resign to Prevent Vote (Mar. 3–6, 1869) 6. Michigan, Ratification of the Fifteenth Amendment, Minority Dissent and Protest (Mar. 5, 1869) 7. “The Amendment of the Constitution Regarding Suffrage,” New York Times (Mar. 8, 1869) 8. Kentucky, Gov. John Stevenson’s Message to the Legislature, Majority and Minority Reports, Rejection of the Fifteenth Amendment (Mar. 10–12, 1869) 9. South Carolina, Statement of House Minority, Ratification of the Fifteenth Amendment (Mar. 11 and 15, 1869) 10. Georgia, Gov. Rufus Bullock’s Message to the Legislature, House Passage and Senate Rejection of the Fifteenth Amendment (Mar. 10–18, 1869) 11. New Jersey, Gov. Theodore Randolph’s Message to the Legislature, Note on Rejection of Amendment (Mar. 24, 1869) 12. Ohio, House Debate, Rejection of the Fifteenth Amendment (Mar. 25 and Apr. 1, 1869) 13. US Congress, The Requirement Bill: Requiring Virginia, Mississippi, and Texas to Ratify the Fifteenth Amendment as a Condition of Readmission, New York Herald (Apr. 10, 1869) 14. Ex parte McCardle (1869) 15. Texas v. White (1869) 16. “The Fifteenth Amendment,” New York Times (Apr. 12, 1869) 17. New York, Ratification of the Fifteenth Amendment (Apr. 14, 1869) 18. Annual Meeting of the American Equal Rights Association, Remarks of Stephen Foster, Elizabeth Cady Stanton, and Frederick Douglass, New York, NY (May 12–13, 1869)

19. Indiana, Remaining Republican Legislature Ratifies Amendment (May 14, 1869) 20. “The Amendment in Indiana,” Boston Daily Journal (May 20, 1869) 21. “Wendell Phillips Advocates It—Ratification by Rhode Island,” New York Times (May 30, 1869) 22. Virginia, Gov. Gilbert Walker’s Message to the Legislature, Ratification of the Fourteenth and Fifteenth Amendments (Oct. 5 and 8, 1869) 23. Elizabeth Cady Stanton, “All Wise Women Should Oppose the Fifteenth Amendment,” Revolution (Oct. 21, 1869) 24. Tennessee, Gov. Dewitt Senter’s Message to the Legislature, Committee Reports, Rejection of the Fifteenth Amendment (Oct. 13, Nov. 15 and 16, 1869) 25. US Congress, The “Georgia Bill,” Debate and Passage (Dec. 16, 20, and 21, 1869) 26. New York, “Ratification of the Fifteenth Amendment Rescinded,” New York Times (Jan. 6, 1870) 27. Kansas, Gov. James M. Harvey’s Message to the Legislature, Repassage of the Fifteenth Amendment (Jan. 12, 1870) 28. Ohio, Legislature Reverses Prior Vote and Ratifies the Fifteenth Amendment (Jan. 3 and 14, 1870) 29. Iowa, Gov. Samuel Merrill’s Message to the Legislature, Ratification of the Fifteenth Amendment (Jan. 11 and 27, 1870) 30. California, Gov. H. H. Haight’s Message to the Legislature, Rejection of the Fifteenth Amendment (Jan. 5 and 28, 1870) 31. Georgia, Gov. Rufus Bullock’s Message to the Legislature, Ratification of the Fourteenth and Fifteenth Amendments (Feb. 2, 1870) 32. “The Amendment Complete,” Boston Daily Journal (Feb. 4, 1870) 33. New Jersey, Legislative Debate, Rejection of the Fifteenth Amendment (Feb. 7, 1870) 34. President Ulysses S. Grant, Message to Congress Announcing the Ratification of the Fifteenth Amendment (Mar. 30, 1870) 35. Frederick Douglass, Letter to a Ratification Celebration (Apr. 5, 1870)

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Introduction to Part 2B

Having managed to beat the clock and pass the Fifteenth Amendment before the end of their lame-­duck third session, congressional supporters of the suffrage amendment now faced a new deadline—the end of the current Northern states’ legislative sessions. Advocates hoped those legislatures would schedule an immediate vote and avoid the potential political backlash that might accompany delaying the vote until their next session. Southern states, ironically enough, posed less of a problem. Most of those states had new constitutions that allowed black suffrage and new governments that had ratified the Fourteenth Amendment. There was good reason to believe they would support an amendment that would impose the same nondiscrimination voting rules on the North that they had already imposed on themselves. Finally, although Texas, Virginia, and Mississippi had not ratified the Fourteenth Amendment and thus remained excluded from the Union, these states might find continued resistance pointless. Refusing to ratify the Fourteenth Amendment might have seemed an option at a time when the South was unified and enjoyed the political support of a Democratic president. By 1869, however, the South was more divided, and the newly elected Republican president Ulysses S. Grant supported the Fifteenth Amendment. These three outlier states thus faced significant political pressure to join their Southern colleagues in ratifying the proposed amendment and rejoining the Union. But political pressure is not forced ratification, and Southern states might still have refused to ratify, if for no other reason than symbolic resistance. It also was possible that the Northern states would lose the race to ratify before the end of their current legislative sessions. Should that happen, Democrats would have the opportunity to regroup and use the intervening time between sessions to rally popular opposition to the amendment. In fact, black suffrage remained a controversial proposition in the North; state electorates had repeatedly rejected black suffrage amendments to their state constitutions, and Democrats had gained seats in elections where the issue had been on the ballot. In their 1868 party platform, Republicans themselves had sworn their allegiance to the right of states to decide the issue of black suffrage for themselves (part 1B, doc. 91). Democrats could—and would—use the 1868 Re-

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publican platform as a bludgeon against advocates of a national suffrage amendment. Joining them in opposition would be women’s rights advocates like Elizabeth Cady Stanton and Susan B. Anthony, who opposed any suffrage amendment that did not include women. In short, although the prospects for a quick ratification were good, any delay might lead to a protracted battle and possible defeat. As it turned out, there was a delay as well as a battle. The ratification effort began inauspiciously. Missouri and Kansas, whose legislatures hoped to ratify before the end of their current session, voted immediately upon receiving telegraphed news of the amendment’s passage. Unfortunately, however, Kansas law did not allow for such an informal notification process, and its legislature would have to vote to ratify all over again at its next session (doc. 2). Missouri’s mistake was even worse: the telegraphed notice contained only Section One of the two-­sectioned amendment (doc. 1). Like Kansas, Missouri would have to revisit the issue during its next session. Unlike its predecessor, the Fifteenth Amendment enjoyed the support of the sitting American president. In his first inaugural address, President Ulysses S. Grant briefly noted that it was “very desirable” to ratify the amendment and end the public “agitation” over suffrage (doc. 4). Supportive newspaper editorials assured reluctant voters that the proposed amendment covered only voting, not holding office, and that all other conditions for suffrage other than race remained under state control (docs. 3 and 7). The abolitionist Wendell Phillips, who had opposed the Fourteenth Amendment because of its narrow scope, now used the narrow scope of the Fifteenth as a point in the amendment’s favor. In a speech encouraging the Rhode Island legislature to ratify the proposal, Phillips assured Republican lawmakers that ratifying the amendment would not force the state to add Democratic-­voting “foreigners” to the voter rolls. “[N]ativity,” Phillips declared, “is not race” (doc. 21). Most readmitted Southern governments quickly ratified, including the majority-­black state assembly of South Carolina (doc. 9). By mid-­March 1869, the Fifteenth Amendment had received about a dozen ratifications (Nevada, West Virginia, North and South Caro-

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lina, Illinois, Louisiana, Michigan, Wisconsin, Maine, Massachusetts, and Arkansas, as well as attempted ratifications in Missouri and Kansas) and a handful of rejections, including Delaware, Kentucky (doc. 8), and Georgia (doc. 10). In Kentucky, Governor John Stevenson insisted that the amendment “utterly absorbs the reserved rights of the States” and that “[i]ts purpose is to annihilate the State governments” (doc. 8). In New Jersey, Governor Theodore Fitz Randolph suggested that the legislature hold off voting on the amendment and send “the whole subject to the people of the State” (doc. 11). The New Jersey legislature apparently agreed. Having delayed consideration until after the fall elections, the state rejected the amendment in February 1870 (doc. 33). In Indiana, outnumbered Democrats bolted the state assembly and resigned in order to deny Republicans the required quorum for legislative action (doc. 5). In response, the Indiana governor called a special session of the rump legislature and, on May 14, 1869, the remaining Republicans voted to ratify the amendment anyway (doc. 19). Whether Indiana’s ratification was actually legal became a matter of national debate (see, e.g., doc. 20). Joining Democratic voices in opposition to the Fifteenth Amendment were those of women’s rights leaders like Elizabeth Cady Stanton and Susan B. An­ thony. While Congress was debating the language of the Fifteenth Amendment, Stanton published an essay in the Revolution warning Congress not to pass an amendment that gave blacks—but not women—the right to vote. According to Stanton, such an amendment would create “antagonism between black men and all women” that would “culminate in fearful outrages on womanhood, especially in the southern states” (see part 2A, doc. 14). The growing rift between Stanton and black suffrage supporters broke into the open during the May 1869 annual meeting of the American Equal Rights Association (doc. 18). On the meeting’s first day, radical abolitionist Stephen Symonds Foster condemned Stanton and Susan B. Anthony for allowing the white supremacist George Francis Train to publish antiblack essays in their publication, the Revolution. Frederick Douglass, who shared the convention’s platform with Stanton and Anthony, also criticized the Revolution for publishing essays that used racist terms like “Sambo.” By the second day of the convention, the divide between Stanton and Fifteenth Amendment supporters seemed unbridgeable. “[N]ot another man should

be enfranchised,” Stanton demanded, “until enough women are admitted to the polls to outweigh those who have the franchise.” Stanton simply “did not believe in allowing ignorant negroes and ignorant and debased Chinamen to make laws for her to obey.” In the months that followed, Stanton continued her opposition to the Fifteenth Amendment, insisting that the proposal was “invidious” to women and “reflect[ed] the old idea of women’s inferiority, her subject condition.” How could it be, Stanton wrote in her essay “All Wise Women Should Oppose the Fifteenth Amendment,” that “the rights of native-­ born American women of property and education, who possess all the requisites for good citizens” were not held as “sacred in the eyes of their sires and sons as are those of ignorant natives and foreigners?” (doc. 23). Most opponents of the Fifteenth Amendment, of course, opposed giving either women or blacks the right to vote, insisting that suffrage was a matter reserved to the states by the Tenth Amendment. As Democrats had once argued in opposition to the Thirteenth Amendment, the Fifteenth Amendment involved a subject that was beyond the legitimate scope of Article V amendments (see, e.g., doc. 24). Embracing the antebellum theory of a “constitutional compact” between the states, California governor H. H. Haight insisted that Article V could be used to limit the powers of the federal government but not those of the states. Insisted Haight, “The clause of amendment to the Federal Constitution, although general in its language, should be construed in its relations to what was really the subject matter upon which it was to operate. It was a right to amend the Constitution, and this latter was simply the powers delegated to the Federal authority. Those powers might, by amendment, be modified, but the power to amend is properly and legitimately confined to this” (doc. 30). According to Haight, should Congress declare the suffrage amendment ratified, “it would be a mere brutum fulmen, destitute of any validity whatever.” Haight’s almost Calhounian vision of inalienable state powers and rights is a reminder that the Civil War had not resolved many of the antebellum debates regarding the nature of the federal Constitution and the role of constitutional federalism. Although Republicans had settled in their own minds whether the original Constitution permitted states to secede, they remained divided over the scope of national power and the reserved rights of the states (see, for example, the disputes 542

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between Thaddeus Stevens and John Bingham regarding national power during the Fourteenth Amendment framing and ratification debates). For their part, Democrats continued to embrace antebellum ideas of a “constitutional compact” and state autonomy (see, e.g., doc. 9). Although Northern Democrats agreed with Republicans that states had no right to secede from the Union, they nevertheless believed that their Southern counterparts might reasonably have come to a different conclusion (see part 1B, doc. 78). Democrats also continued to insist that the Republican Congress had violated the Constitution by proposing amendments (and reconstruction statutes) in the absence of representatives from functioning Southern state governments. The case Ex parte McCardle presented the Supreme Court with an opportunity to judicially resolve at least some of the issues of postbellum federalism—in particular, the constitutionality of the Reconstruction Acts. However, when Congress repealed the jurisdictional statute that had allowed the Court to hear McCardle’s claim in March 1868, the Court acquiesced by withholding their opinion (see part 1B, doc. 88). More than a year later, on April 12, 1869, Chief Justice Salmon P. Chase finally issued a brief, unanimous opinion holding that the Supreme Court no longer had jurisdiction to hear the case (doc. 14). Whether Congress acted with the intent of preventing the Supreme Court from deciding the constitutionality of congressional reconstruction was, according to Chase, none of the Court’s business: “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words. What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause” (doc. 14). The Supreme Court’s acquiescence in McCardle did not, however, signal an unwillingness to address some of the most basic questions of postbellum constitutional federalism. The same day the Court handed down its opinion in McCardle, it also decided Texas v. White (doc. 15). A case ostensibly about the validity of a Confederate state government’s sale of bonds, White involved some of the most disputed constitutional issues of the Civil War and Reconstruction. According to Article III of the federal Constitution, cases like White, which invoked the original jurisdiction of the Supreme Court, required

that a state be an actual party in the case. Thus before the Supreme Court could consider the merits of the case, it first had to decide whether Texas was, in fact, a “state” capable of invoking the original jurisdiction of the Supreme Court. This was a potentially explosive question, as Congress at that particular moment was operating under the assumption that the still-­excluded state of Texas was not a state in the Union.1 In other words, the Supreme Court’s resolution of the jurisdictional issue in Texas v. White potentially implicated the continued exclusion of Texas, Virginia, and Mississippi, as well as the original issue in McCardle—the constitutionality of the Reconstruction Acts. In a five to three decision, the Supreme Court ruled that Texas was a state in the Union, the Court did have jurisdiction to hear the case, and the Confederate Texas government did not have the legal authority to sell government bonds (thus, the current state government could sue for their recovery). Echoing the nationalist constitutional theories of Abraham Lincoln (see vol. 1, 1D, doc. 8) and Daniel Webster (see vol. 1, 1B, doc. 23), Chief Justice Chase declared that “[t]he Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States” (doc. 15). Chase rejected the antebellum constitutional compact theories of John C. Calhoun and declared secession illegal: When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

Accordingly, the state’s secession ordinances “were absolutely null” and “utterly without operation in law.” Although Chase acknowledged that Texas remained excluded from Congress under the provisions of the 1. Texas had refused to ratify the Fourteenth Amendment and thus did not satisfy the conditions for readmission established by the First Reconstruction Act. 543

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Reconstruction Acts, he demurred on the question of the constitutionality of congressional reconstruction: “Nothing in the case before us requires the court to pronounce judgment upon the constitutionality of any particular provision of these acts.” It was enough that “these [Reconstruction Acts] themselves show that the governments which had been established and had been in actual operation under executive direction were recognized by Congress as provisional, as existing, and as capable of continuance.” Just to drive the point home that neither Ex parte McCardle nor the current case suggested that the Court accepted the constitutionality of the Reconstruction Acts, Chase emphasized, “We do not inquire here into the constitutionality of this legislation so far as it relates to military authority, or to the paramount authority of Congress. It suffices to say that the terms of the acts necessarily imply recognition of actually existing governments, and that, in point of fact, the governments thus recognized in some important respects still exist” (doc. 15, emphasis added). Chase’s opinion drew a rebuke from dissenting Justice Grier, who insisted that it was for Congress—not the courts—to determine the status of Texas. Given “the truth of history for the last eight years,” wrote Grier, “[p]olitically, Texas is not a State in this Union. Whether rightfully out of it or not is a question not before the court.” In fact, only two days before the Supreme Court issued its decision in Texas  v. White, national newspapers announced the passage of a new Reconstruction Act—one that required Virginia, Mississippi, and Texas to ratify the Fifteenth Amendment before their representatives would be readmitted to Congress. As reported in the New York Herald, the new Act was the Republican response to Democratic claims that “without the votes of Virginia, Mississippi, Texas and Indiana the fifteenth amendment must fail of ratification” (doc. 13). The generally conservative New York Times, although supportive of the Fifteenth Amendment, criticized Congress’s attempt to coerce its ratification: [T]his new measure leaves the people no voice in the matter,—no freedom of action whatever, and without such freedom of action all pretence of vote is sheer mockery. They are to be coerced into voting for the amendment, by act of Congress. They are to be excluded from the Union, not because they are not loyal, not because they have failed to do any act indicating their fitness to return, or to comply with any of the conditions originally prescribed,

but because they fail to join in forcing negro suffrage upon the Northern States. If the Constitution is thus amended it will be the sheerest folly to talk of its having been done by the will of the people or by the action of the several States. It will have been changed by act of Congress—nothing more and nothing less. (doc. 16)

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Congressional Republicans were themselves divided over the wisdom and fairness of the new Requirement Act. In speeches published in the New York Herald, Lyman Trumbull and Roscoe Conkling both condemned the new ratification requirement as a “breach of faith” with the people of the Southern states. In response, Indiana’s Oliver P. Morton argued that these states had been offered readmission if they ratified the Fourteenth Amendment, “but they had refused to accept the offer, and had stood out in hostility to the government, and now it was the right of Congress to impose whatever conditions it pleased” (doc. 13). The Requirement Act had its intended effect. By October 1869, Virginia had voted to accept the new offer and ratified both the Fourteenth and Fifteenth Amendments (doc. 22). A few months later, Mississippi and Texas did the same. In December 1869, two months after Virginia’s ratification, Congress passed a similar requirement bill for the readmission of Georgia. Before doing so, however, Congress first kicked Georgia out of the Union. Georgia had ratified the Fourteenth Amendment the previous summer on July 21, 1868 (part 1B, doc. 99). According to the First Reconstruction Act, any Southern state voting in favor of a successfully ratified Fourteenth Amendment “shall be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom on their taking the oath prescribed by law, and then and thereafter the preceding sections of this act shall be inoperative in said State” (part 1B, doc. 74). Accordingly, once the Fourteenth Amendment was officially proclaimed ratified, the Union military overseer of Georgia’s district, General George Meade, declared that Georgia had “complied with the acts of Congress,” and he returned the state to civilian control (part 1B, doc. 100). Although those acts contained a “fundamental condition” requiring that the readmitted states continue to allow black suffrage, they were silent regarding freedmen’s right to hold office (part 1B, doc. 93). When the Georgia legislature met in September 1868, a coalition of white Republicans and

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Democrats voted to expel newly elected black officials from the state House and Senate.2 When the Fortieth Congress returned for its third session, in December 1868, the Senate responded to the Georgia legislature’s action by challenging the credentials of Georgia senator Joshua Hill and refusing to allow him to take his seat (part 2A, doc. 2). While the Fortieth Congress considered whether a loyal government existed in Georgia, in March 1869 the (now) all-­white Georgia legislature considered whether to ratify the Fifteenth Amendment. Georgia governor Rufus Bullock, who had opposed the expulsion of black officeholders, delivered a message to the legislature mocking the assembly for its sudden eagerness to vote on the amendment and restore their standing with the Republican Congress (doc. 10). Bullock warned that the proposed amendment must be understood as protecting both black suffrage and black office-­holding— almost baiting the legislature to reject the amendment (an act that would likely trigger federal intervention). The Georgia House moved first, voting to ratify on March 11, 1869, but adding a proviso declaring that “the proposed amendment does not confer upon [‘the colored man’] the right to hold office” (doc. 10). The Georgia Senate then voted to ratify with a similar proviso on March 12, followed by a Senate vote to reconsider the matter on March 13, followed by a Senate vote on March 17 to “postpone the resolution indefinitely.” This last vote was eighteen to seventeen, with Republican senate president Benjamin F. Conley voting to break the tie and effectively defeat Georgia’s ratification. Conley’s vote may have been intended to get Congress’s attention: only days earlier, Conley had been elected president of the Georgia State Republican Convention and had presided over the adoption of a resolution “requesting Congress to reorganize the [Georgia] Legislature, reseat the colored members, and establish a loyal government.”3 Whether intended or not, Georgia’s rejection of the amendment prompted Congress, on December 22, 1869, to pass the Georgia Bill, expelling Georgia’s representatives from Congress and restoring military oversight of the state (doc. 25). The Bill declared that Georgia’s cur2. See Macon Weekly Telegraph (published as Georgia Weekly Telegraph), Sept. 11, 1868, 3 (reporting on the September 4, 1868, Georgia House debates and vote to exclude black officeholders). 3. See Cincinnati Daily Enquirer, March 6, 1869, 4.

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rent “Legislature shall be provisional only” and would remain so “until after it has ratified the fourteenth and fifteenth amendments to the Constitution of the United States.” Once again, moderate congressional Republicans raised cries of bad faith. According to John Bingham, the proposal was “in conflict with all the past legislation of the Congress of the United States and of the interpretation of your Constitution.” Bingham insisted that the First Reconstruction Act “made the only limitation on the qualification of members of the Legislature in Georgia those specified in the fourteenth article of amendment. This bill superadds qualifications.” Despite Bingham’s opposition, the bill passed the House on a 121–51 vote (see doc. 25, p. 585, note *). By the early months of 1870, both Missouri and Kansas had rectified their earlier ratification errors and voted a second time in favor of the amendment (see doc. 1, p. 546, note †; and doc. 27, p. 586, note †). Other states, however, were having changes of heart. New York, whose legislature had initially ratified the amendment on April 14, 1869 (doc. 17), elected a new legislature that fall and, on January 5, 1870, voted sixteen to thirteen to rescind its ratification of the Fifteenth Amendment (“a strict party vote,” according to the New York Times; doc. 26). Ohio went the opposite direction, voting on January 27, 1870, to ratify the amendment, thus reversing the prior assembly’s rejection of April 1, 1869. The vote in Ohio was the closest of any state, with the House passing the amendment by two votes—the Senate, by a single vote (doc. 28). The Iowa legislature ratified the amendment the same day as Ohio, having been encouraged by Iowa governor Samuel Merrill to end this “last vestige of human bondage in the polity of the republic” (doc. 29). Finally, on February 2, 1870, Georgia’s newly reconstructed provisional government voted to ratify both the Fourteenth Amendment (for the second time) and the Fifteenth Amendment, as required by the Georgia Bill (doc. 31). Since Georgia’s vote appeared to give the amendment at least twenty-­eight favorable votes, newspapers that had kept track of state ratifications (though their lists and dates rarely coincided) began to announce the ratification of the Fifteenth Amendment (see, e.g., doc. 32). Secretary of State Hamilton Fish, however, postponed his official announcement until mid-­March (see doc. 34). By that point, even if one excluded Indiana’s rump-­Republican ratification and accepted New York’s rescission, the Fifteenth Amendment had still received the necessary votes.

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On March 30, 1870, in a special message to Congress, President Ulysses S. Grant announced the ratification of the Fifteenth Amendment (doc. 34). Noting that it was “unusual” to notify Congress of an amendment’s ratification by way of a special presidential message, Grant deemed that “the vast importance of the fifteenth amendment to the Constitution” justified “a departure from the usual custom.” Grant then eloquently characterized the adoption of the Fifteenth Amendment as a glorious victory over the infamous discriminatory ideas that had informed Dred Scott v. Sandford:

1 Missouri, State Legislature Ratifies Partially Reported Fifteenth Amendment March 1, 1869*

Be it resolved by the General Assembly of the State of Missouri, as follows: That the proposed amendment in words following, viz.

A measure which makes at once four million people voters who were heretofore declared by the highest tribunal in the land not citizens of the United States, nor eligible to become so (with the assertion that “at the time of the Declaration of Independence the opinion was fixed and universal in the civilized portion of the white race, regarded as an axiom in morals as well as in politics, that black men had no rights which the white man was bound to respect,”) is indeed a measure of grander importance than any other one act of the kind from the foundation of our free Government to the present day. (doc. 34)

Article XV. Section 1. The right 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 or color and previous condition of servitude,

Be and the same is hereby ratified and approved, Was taken up and read the first time, when Senator Evans moved that the rules be suspended, and that the resolution be read a second time, ... The resolution was then read a second time, when Senator Roseberry moved a further suspension of the rules, and the resolution be read a third time, ... The resolution was then read the third time and passed by the following vote: [Ayes 23, noes 9] The title of the resolution was then agreed to.†

Frederick Douglass, in an April 5, 1870, letter to a group celebrating the passage of the Fifteenth Amendment, expressed his joyous wonder that such a long and painful struggle had resulted in such a glorious achievement in human freedom: “The revolution wrought in our condition by the fifteenth amendment to the Constitution of the United States, is almost startling, even to me. I view it with something like amazement. It is truly vast and wonderful, and when we think through what labors, tears, treasures and precious blood it has come, we may well contemplate it with a solemn joy” (doc. 35). Henceforth, Douglass wrote, “we live in a new world, breathe a new atmosphere, have a new earth beneath and a new sky above us.”

* Missouri Senate Journal 434 (1869). † [See also Missouri House Journal 605 (1869) (Mar. 1, 1869) (reporting three quick readings of the amendment, but no reported text, and passage on a vote of 79 to 30). Missouri would revisit, and repass, the amendment on January 7, 1870. See Washington Reporter (PA), Jan. 12, 1870, 4. —Ed.] 546

B. Ratification, doc. 3

providing for impartial suffrage, to be regulated at the option of the States by any qualification not within the inhibition of the organic law. This prompt ratification could hardly have been expected had the amendment passed in the shape the Senate would have given it, decreeing universal unqualified suffrage and an equal right to hold office. As it reads, it establishes an impartial voting standard, while admitting sexual, educational or property tests. A contemporary thinks it even admits of religious tests, but this is manifestly in error, as the Constitution already guarantees freedom of religious opinion, with which guarantee a denial of the elective franchise on account of creed would be plainly in conflict. An educational test, prospectively applied, would operate to exclude the only class of male citizens who ought in justice to be excluded, while tending to make intelligence, and with it the ballot, nearly universal. Such a test, however, could not be applied retroactively, to disenfranchise any class. No where, except, perhaps, in the South, would such injustice be attempted, for even if it were not opposed to fundamental legal principles, the politicians would know they could not carry it through, and would not risk the loss of their popularity on such a venture; while at the South the disfranchisement of the freedmen, the only class likely to be grudged the suffrage, is expressly prohibited by the terms of reconstruction and the local constitutions made in accordance therewith. The ready adoption of the Amendment in Nevada shows that the Mongolian bugaboo does not frighten sensible men. Had the adoption of any qualification been prohibited, there would have been no bar to admitting Chinese to the ballot-­box except the naturalization law, which agitators might attempt some day to have altered in this regard. Now there is a double check; first in the law named, which prevents the Chinese from becoming citizens, and the second in the permission of a test that would exclude them on account of inability to read, write and speak our language, an inability which extremely few of them would ever remove, even if they were ever allowed to be naturalized. The apprehension that the treaty with China obliges us to permit their naturalization is palpably at fault. The equal guarantees of that instrument only relate to the privileges of travel and residence, as the text plainly shows. A dispatch from Senator Stewart states that the word “nativity” was stricken from the original draft of the amendment purposely to allow the exclusion of Chi-

2 “Changing the Constitution by Telegraph,” Daily State Register (Des Moines, IA) March 13, 1869, p. 2

The Kansas Legislature was too quick by half in ratifying the amendment the same day it passed Congress. By a concurrent resolution of Congress, the States are to receive official information of the proposed amendment from the President. Kansas received it by private telegram, and put it through by lightning. As their action was premature and void, they will have the fun of doing it over again. The Missouri Legislature made a still greater blunder. One of the Congressmen of that State dispatched the amendment to the Legislature, but to save the expense, only telegraphed the text of the section.* The Legislature, supposing he had sent the whole thing, promptly ratified it. This, of course, was no ratification. Before receiving notice of their mistake the Legislature adjourned, and will not assemble again till January next. The result will be that the canvass of the coming summer in that State will be hot and bitter on this question. Changing the Constitution by telegraph is very uncertain business, as Missouri and Kansas have found out.

3 “Ratifying the Amendment,” Daily Evening Bulletin (San Francisco, CA) March 4, 1869, p. 2†

The Legislatures of Kansas, Nevada and West Virginia have ratified the Fifteenth Constitutional Amendment, * [That is, the first section. —Ed.] † [This particular issue of the Daily Evening Bulletin is erroneously dated February 4, 1869 (weeks before the passage of the amendment), instead of the correct date: March 4, 1869. —Ed.] 547

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nese; and if any quibble is raised over the word “race” which is retained, it is met by this clause in the treaty, following the guarantees above mentioned: “But nothing herein contained shall be held to confer naturalization upon the citizens of the United States in China, nor upon the subjects of China in the United States.” Thus the Chinese get no claim to demand citizenship under the treaty, and are denied it by our laws and by public opinion. Reduced to its simplest expression, the Fifteenth Amendment merely exacts of all the States in the Union the same impartial rule in the regulation of suffrage among citizens which has been already exacted of the insurgent States. The Fourteenth Amendment declares that if any State exclude from the suffrage any persons by reason of race, color or previous condition of servitude, the whole number of the class comprising such persons shall be deducted from the count of population in apportioning representation; thus tacitly permitting unjust discrimination but inflicting a penalty. The new Amendment declares no such discrimination shall be made at all, but qualifications may be exacted on other grounds left to be inferred and including any test not prohibited. The right of any State to say who shall not be eligible to office is left just as it was before. Some will voluntarily establish an impartial rule in this matter, and others will long refuse to admit any to the privilege but white men.

prejudice, hate, or sectional pride, remembering that the greatest good to the greatest number is the object to be attained. This requires security of person, property, and free religious and political opinion in every part of our common country, without regard to local prejudice. All laws to secure these ends will receive my best efforts for their enforcement. ... The question of suffrage is one which is likely to agitate the public so long as a portion of the citizens of the nation are excluded from its privileges in any State. It seems to me very desirable that this question should be settled now, and I entertain the hope and express the desire that it may be by the ratification of the fifteenth article of amendment to the Constitution.

5 Indiana, Democrats Resign to Prevent Vote March 3–6, 1869†

House, March 3, 1869

Message from the Governor, by Mr. Commons, his Private Secretary: ...

4 President Ulysses S. Grant, First Inaugural Address

Executive Department, Indianapolis, March 1, 1869 Gentlemen of the Senate and House of Representatives: I herewith, respectfully transmit to the General Assembly a Joint Resolution of the Congress of the United States, on the subject of suffrage, comprising two sections, and designated as article XV. ... CONRAD BAKER.

March 4, 1869*

Citizens of the United States: ... The country having just emerged from a great rebellion, many questions will come before it for settlement in the next four years which preceding Administrations have never had to deal with. In meeting these it is desirable that they should be approached calmly, without

Mr. Buskirk moved to take the Governor’s Message from the table, and that the same be made the special order for two o’clock tomorrow. Mr. Coffroth moved to adjourn.

* Inaugural Addresses of the Presidents of the United States, Bicentennial ed. (Washington, DC: Government Printing Office, 1989), 145–48.

† Indiana House Journal 883–94 (1869).

548

B. Ratification, doc. 6

... * So the motion to adjourn did not prevail. ... The question recurring on the motion of Mr. Buskirk. It was agreed to.

Mr. Dunn, in explanation of his vote on adjournment, said: Mr. SPEAKER : Through the action of the Democratic minority on the floor, further legislative enactment is rendered impossible, I am willing to remain here and perform my duties, as a legislator until the last hour of the sixty-­first day. The minority have blocked legislation. I vote aye. So the motion to adjourn prevailed.

House, March 4, 1869

Thursday Morning, 9 o’clock The House met. On motion of Mr. Ratliff, the House adjourned.

House, March 6, 1869

Saturday Morning, 9 o’clock The House met. ... Message from the Governor:

Thursday, 2 o’clock p.m. The House met. On motion of Mr. Buskirk, a call of the House was had. Those who answered to their names were . . . 58. No quorum answering to their names. On motion of Mr. Buskirk, the House took a recess until 5 o’clock this evening, and the Doorkeeper was ordered to send for absentees. ...

Executive Department, March 4, 1869 Gentlemen of the House of Representatives: I beg leave to inform you that thirty-­seven members of the House of Representatives this day placed in my hands their respective resignations as members of your body, and have therefore ceased to be members of the present General Assembly. I will communicate to you to-­morrow morning the names of the resigning members. Writs of election are being prepared ordering elections to be held on the 23d day of the present month to fill the vacancies. CONRAD BAKER.†

Thursday Evening, 5 o’clock p.m. The House met. On motion by Mr. Wildman, the House adjourned.

House, March 5, 1869

Friday Morning, 9 o’clock The House met. Mr. Steart of Rush, moved that the House do now adjourn. At this point Mr. Coffroth raised the following point of order: That all motions except to dispense with the reading of the Journal, or a call of the House, are out of order. . . . Which point was overruled by the Speaker. The question then on the adjournment was put and carried in the affirmative.

6 Michigan, Ratification of the Fifteenth Amendment, Minority Dissent and Protest March 5, 1869‡

Friday Afternoon, 2 o’clock p.m. The House met. ... Mr. Wildman moved that the House do now adjourn. ...

The committee on federal relations, to whom was referred a communication from His Excellency, the Gov† [On Monday, March 8, 1869, the Indiana House and Senate adjourned sine die, thus ending the session. See Indiana House Journal 894 (1869). —Ed.] ‡ Michigan House Journal 1097 (1869).

* [The vote on adjournment was 39 affirmative, 54 negative. —Ed.] 549

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ernor, submitted to this House the action of Congress of the United States in proposing an amendment to the Constitution of the United States, to stand as the fifteenth amendment thereto, Respectfully report that they have had the same under consideration, and have directed me to report the same back to the House, with the accompanying joint resolution, entitled Joint resolution ratifying the proposed amendment to the constitution of the United States, Recommending that the joint resolution do pass, ... Report accepted, and leave granted the minority of the committee to submit the following report: The undersigned, minority of the committee on federal relations, to whom was referred a communication from His Excellency, the Governor, submitted to this House the action of Congress of the United States in proposing an amendment to the Constitution of the United States, ... The undersigned, minority of the committee on federal relations, ... Respectfully reports that in his opinion it is not competent for this House to receive at this time, or to consider, the joint resolution . . . as more than fifty days of this session have elapsed. See art. 4, sec. 28, of the constitution of this State. ... The undersigned further respectfully dissents from the propriety of ratifying the proposed amendments, if received by this House, for the reason, it is an encroachment upon the rights of the States, and of the people, reserved to them in the delegation of powers to Congress in the Constitution of the United States, and tends to weaken and destroy the checks and balances wisely framed by the fathers of the republic, and designed by them, for all time, to protect the people of the Union in the enjoyment of their social and political rights, and the blessings of a free government. ... C. Miles, Minority of Committee on Federal Relations ... The joint resolution was then read a third time, and pending the taking of the vote of the passage thereof, Mr. Romeyn presented the following

550

PROTEST The undersigned, members of the House of Representatives of the State of Michigan, controlled by a sense of their imperative duty as representing the constituency of a considerable portion of this State, do most respectfully but earnestly and solemnly protest against the action in this House, in receiving on the fifty-­eighth day of the session, and acting upon, the “Joint Resolution, ratifying the proposed amendment to the Constitution of the United States,” and ask that this their protest, with the following reasons therefore, may be entered upon the journal of this House. 1st. Our State Constitution provides (Art. IV, Sec. 28,) “that no new bill shall be introduced into either House of the Legislature after the first fifty days of a session shall have expired.” The aforesaid resolution was first offered on the fifty-­ seventh day of the session, ... 2d. The Constitution of the United States does not provide at what time State Legislatures shall act upon any proposed amendment, consequently it cannot be claimed that there is any emergency requiring our action. ... It therefore, as we respectfully urge, should not have been submitted to or acted upon by this House, but left to a Legislature chosen with reference thereto, the more especially, that a joint resolution to amend the Constitution of Michigan in regard to the question of suffrage has already been adopted by this House, and the ratification of the proposed amendment to the Constitution of the United States will take from our people the right to impose an educational electoral qualification, which has been agitated by both parties. 3d. The undersigned further urge the inexpediency of the passage of those resolutions in any event. Gradually and insidiously has the majority of the Congress of the United States encroached upon the reserved rights of the several States. . . . this is but an entering wedge to still farther encroachments on the rights of the people in the several States, heretofore thought to be safely protected by the Federal Constitution. 4th. If by mere strength of political majorities, this amendment is fastened upon us, others will follow of perhaps more stringent character, until the consolidation of power in the General Government will be complete, and the States shorn of their right to legislate for their internal welfare and interests.

B. Ratification, doc. 7

... Lansing, March 5, 1869*

The joint resolution, reported by the committee on federal relations, which reads as follows, ... Resolved, by the Senate and House of Representatives of the State of Michigan, That, in the name and in behalf of the people of this State, we do hereby ratify, approve, and assent to said amendments. ... Was then passed, a majority of all the members elect voting therefore, by yeas and nays, as follows: [Yeas 68, nays 24]†

7 “The Amendment of the Constitution Regarding Suffrage,” New York Times March 8, 1869, p. 4

We presume there is little doubt now that the Fifteenth Amendment to the Constitution, regarding suffrage, will be promptly ratified by a sufficient number of State Legislatures to make it part of the fundamental law. Several of the States have already taken the necessary action, and others are evidently prepared to do so at the earliest moment. The strong expression of General Grant, in his inaugural, in favor of such a course will probably hasten their action upon it. The adoption of this amendment will put an end to further agitation of the subject, for a long time at least, and thus leave the Government of the country free to deal with its material interests and with the more pressing questions of public policy and administration which will arise from time to time. We do not concur with those who predict that the question of Suffrage for women will speedily demand public action or engross public attention, or that the right of men to hold office without distinction of color * [The protest was signed by twenty-­two dissenting members. —Ed.] † [The Michigan Senate also passed the amendment on March 5, 1869, on a vote of 25 to 5. See Michigan Senate Journal 738–39 (1869). —Ed.]

551

or race, will absorb any great degree of public time or public thought for a long while to come. Until some decided practical advantage is to be gained, by a dominant political party, neither of these questions will be pressed to a decision: and both of them have, in our judgment, commanded more attention already than they will soon command again. With the adoption of the Fifteenth Amendment, we may fairly look upon the Suffrage agitation as at an end, for the present political generation at all events:—and that consideration, of itself, affords a very powerful argument in favor of its adoption. The amendment, in the shape it finally assumed, is free from many objectionable features which at various times have seemed likely to be fastened upon it. The very fact that an amendment of the Constitution has been deemed necessary for the accomplishment of the subject sought, is, as we have more than once pointed out, a concession that the regulation of suffrage is not a matter within the competency of Congress,—that it is to be effected by the Constitution, and not by law. It is fundamental to the character of our Government, and can be the creature, therefore, of no authority less than that of fundamental law. The amendment, furthermore, is prohibitory in its form,—a restriction of the power of the separate States over a matter of common interest to all the States, as composing a common nation. It prohibits any State from disfranchising any citizen,—from depriving any citizen of his right to vote,—for certain specific reasons. No citizen can be deprived by any State of his right to vote “on account of color, race, or previous condition of servitude.” These are all the restrictions put upon State action in regard to suffrage. The last of these specifications is temporary and will soon disappear. It will not be many years before there will not be in this country a hundred persons who have ever been in a “previous condition of servitude.” Even now the fact that a man has been a slave, is not held to be of the slightest consequence anywhere, aside from the other fact that he is a negro in color and in race. Virtually, therefore, the amendment merely forbids the States from disfranchising any of their citizens “on account of color or race.” With such other conditions as States may see fit to affix to the right of suffrage, the amendment does not interfere. The amendment, in fact, does not at all disturb the original recognition in the Constitution of the right of States to regulate the suffrage. It repeats and confirms that recognition, and only restricts the right by forbid-

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ding its proscriptive exercise on two grounds,—those of race and color. Everything else is left, where it has always been, to the interest and discretion of the States themselves.

cent duplex system of government, formed by the Constitution of the United States in 1787. No one can deny that the ratification of the proposed amendment is a total revolution in the character of our governmental system. ... Again, this proposed amendment is to be hastily submitted, at a period when three of the States have not been allowed by Congress to exercise any of the franchises of sovereign States, and when eight more, though nominally admitted, are still deprived of self-­ government, and are, at this moment, the subjects of military rule. Above all, this amendment is sought to be ratified by Legislatures chosen by the people before this amendment had passed the Congress of the United States, and, therefore, not chosen as agents, who can safely, in their action, reflect the popular will in adopting or rejecting it. ... J.W. Stevenson

8 Kentucky, Gov. John Stevenson’s Message to the Legislature, Majority and Minority Reports, Rejection of the Fifteenth Amendment March 10–12, 1869

Governor’s Message, March 10, 1869 *

Gentlemen of the Senate and House of Representatives I herewith transmit a concurrent resolution of Congress, entitled “A Resolution proposing an amendment to the Constitution of the United States.” The direct effect of this proposed change is to subvert the structure of our federative system of government under which we have lived and been so signally blessed with happiness, prosperity, and power, during the past eighty years. It ignores the relations which the Government of the United States and those of the separate States bear to each other. It obliterates and destroys the division between the delegated powers vested in the Government of the United States and those vested in the respective State governments, or reserved to the people of the several States respectively. It utterly absorbs the reserved rights of the States. Its purpose is to annihilate the State governments. It takes from them powers expressly vested and reserved, and, by abrogating the partition of power between the Federal and State governments, whose mutual action and reaction were looked to by our fathers as checks to prevent either from encroaching on and absorbing the powers of the other, and as limitations to keep each within its proper sphere, utterly destroys the equilibrium of the entire system. The result must be that a consolidated central government, with the States as mere abject appendages, will supplant the wise and benefi* Kentucky House Journal 746–48 (1869).

House, March 11, 1869 †

Mr. Bright, from the Committee on Federal Relations, to whom was referred the message of the Governor transmitting a resolution of the Congress of the United States submitting an amendment to the Constitution of the United States, reported the following resolutions, viz: ... 1. Resolved by the General Assembly of the Commonwealth of Kentucky, That said proposed amendment to the Constitution of the United States be not ratified, and that the proposition to amend the Constitution of the United States, as aforesaid be, and the same is hereby, rejected. ... And the question being taken on the adoption of said resolutions, and it was decided in the affirmative. The yeas and nays being required thereon by Messrs. Davis and McKenzie, were as follows, [affirmative 80, negative 5].

Senate, March 12, 1869 ‡

Mr. Clarke, from the Committee on Federal Relations, to whom had been referred resolutions from the House of Representatives, entitled

552

† Kentucky House Journal 774–76 (1869). ‡ Kentucky Senate Journal 623 (1869).

B. Ratification, doc. 8

Resolutions in regard to the proposed amendment to the Constitution of the United States, Reported the same, with the expression of opinion that said resolutions should be concurred in. ... Mr. Lilly, from the same Committee, made the following minority report, which was ordered to be printed, viz: The undersigned, one of the Committee on Federal Relations, to whom was referred the message of the Government, inclosing the proposed Fifteenth Article of amendment, submitted by the Fortieth Congress to the several States for their ratification or rejection, is unable to agree with a majority of the Committee, or to concur with them in their report, for the reasons herein expressed, and for others which he has not time to include in this report. ... This report, in the opinion of the undersigned, ought not to be adopted: 1st. Because about two hundred and fifty thousand, or one fifth of the population of this State, are denied the right of representation or the elective franchise, or a voice in choosing their rulers, and, in fact, all political and most of their civil rights; and if this condition of things continues until the year 1870, when the next census will be taken, then the State will be reduced in her representation to seven Representatives in Congress, instead of nine, the present number. ... 2d. The experience of the past is sufficient to convince all candid and impartial men that the colored citizens will never be allowed to enjoy their civil rights so long as the right to vote is denied them. In proof and support of this statement, I need only refer to the recent action of this Legislature in rejecting, by an overwhelming majority, any change in our laws admitting colored citizens to testify in our courts of justice. I need only refer your honorable body to the fact that the colored citizens are now required to pay taxes and render military service, and bear all civil burthens as other citizens; to pay the same county levy that white men do—the proceeds of which are used to defray all county expenses, including the support of white paupers; and, in addition thereto, every male colored citizen over eighteen years of age, is required to pay a special poll tax of two dollars to support colored paupers, and if there is a surplus, then to educate their children; but it seems there is always found a way to consume the entire amount,

leaving nothing for the purpose of education. They are also required to pay a tax on all their taxable property into our Common School Fund, and are not allowed to draw out a single dollar to help them educate their children. . . . if to-­day, five hundred colored citizens of good moral character, and in good standing in the Baptist Church, here in the city of Frankfort, in the capital of the State, almost within a stone’s throw of your honorable body, were assembled in their church, worshipping God according to the dictates of conscience, and a white man, with malice in his heart, were to go there and shoot down their minister while in his pulpit, in the presence of the whole congregation, he cannot be punished by our courts for such foul murder, if there should be no white person present to testify against him—­ colored citizens being excluded by law from giving evidence in our courts of justice against white persons in any case. This state of things cannot exist must longer without the whole civilized world condemning us in unmeasured terms. ... 3d. Because, as matters now stand, all citizens are not equal before the law; all citizens are not protected alike. Notwithstanding thousands of colored persons have been murdered in Kentucky by white men, there is not, it is believed, a single case on record where a white man has been executed for killing a negro, and scarcely a case where any notice of it has been taken by our courts. ... With this amendment regulating suffrage, and the Civil Rights Bill, now entirely ignored, properly enforced, our rights would be the same everywhere in the Union; and we have abundant reason to hope and believe that peace, prosperity, quiet, contentment, and happiness would attend our people, and that sobriety and Christianity would flourish, and the blessings of Heaven rest upon us. In view of these facts, and believing that this General Assembly will not ratify the proposed Fifteenth Amendment, I recommend the adoption of the following resolution: Resolved, That the further consideration of the question of the ratification of the Fifteenth Amendment to the Constitution of the United States be postponed until the meeting of the next General Assembly. All of which is most respectfully submitted. H.C. Lilly. 553

...

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The question was then taken on the adoption of the minority report, and it was decided in the negative. [Affirmative 6, negative 28] ... The question was then taken on concurring in the adoption of the resolution of the House of Representatives, and it was decided in the affirmative. [Affirmative 27, negative 6]

John Wilson, R. M. Smith.

Senate, March 15, 1869 †

The Speaker of the House of Representatives attended in the Senate, when the following Acts and joint resolutions were ratified, to wit: ... A joint resolution ratifying the fifteenth amendment to the Constitution of the United States of America;

9 South Carolina, Statement of House Minority, Ratification of the Fifteenth Amendment

10 Georgia, Gov. Rufus Bullock’s Message to the Legislature, House Passage and Senate Rejection of the Fifteenth Amendment

March 11 and 15, 1869

March 10–18, 1869

House, March 11, 1869 *

Mr. SASPORTAS, from the Committee on Engrossed Acts, reported as duly and correctly engrossed for a third reading a joint resolution ratifying the fifteenth amendment (Article XV) to the Constitution of the United States of America. The joint resolution was read a third time, and on the question of passing the joint resolution and ordering it to be enrolled, the yeas and nays were called, and are as follows: Yeas, 88, nays 3; absent or not voting, 29. Agreed to. ... The following paper was presented to be entered on the Journal: We vote “no” on the joint resolution ratifying the fifteenth amendment to the Constitution of the United States, because we think it contrary to the spirit of the Federal compact for Congress to interfere with the subject of suffrage; and we do not see any good reason why that policy should now be departed from. The proposed amendment amounts to very little indeed as to its positive effect, while its negative influence will be very important, as tending towards centralization, and an aristocratic Government. (signed) O. M. Doyle,

Governor’s Message, March 10, 1869 ‡ To the General Assembly: ... It is especially gratifying to learn, as I do from the published proceedings of your honorable body, that Senators and Representatives, who have heretofore acted with a political organization which adopted, as one of its principles, a denunciation of the acts of a Republican Congress, as unconstitutional, revolutionary and void, should now give expression to their anxious desire to lose no time in embracing this opportunity of ratifying one of the fundamental principles of the Republican party, as herein proposed, by a joint resolution of a Republican Congress; ... This amendment is especially designed to secure political privileges to the colored man; and whether its ratification by a General Assembly, which has already violently wrested from him privileges to which he was constitutionally entitled in this State, will be recognized † South Carolina Senate Journal 471–72 (1869). ‡ Georgia House Journal 601 (1869). [Most of Governor Bullock’s message was also published in the New York Times, Mar. 11, 1869, 1. —Ed.]

* South Carolina House Journal 516–17 (1869).

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as valid by the power proposing it, unless accompanied by a reversal of the action by which those privileges were denied, is a question which we will not delay here to consider. It is a course of great gratification to the lovers of liberty and republican principles throughout the country that Congress has given to us the further pledge that the declaration of our fathers—“all men are created equal”—shall be recognized as a reality, and that it is no longer a mere empty sound. The equal right of every man, either by himself or his elected representative, to participate in the framing of the laws by which he is to be governed, and in the selection of the persons who are to execute them, is the very foundation of republican government; and, that one race or color shall undertake to exclude from political privilege any other race or color is not only a practical denial of the principle on which our independence was originally declared, and the government subsequently founded, but displays a thirst for power, natural, it is true, to human nature, but by no means creditable to its sense of justice. “‘So use your own rights as not to interfere with the rights of others:’ the golden maxim of justice may be appropriate to the weak, but it does not apply to the powerful, when they may venture to evade the law if its assertion is attempted, or to defy it if it seems to be doubtful.” The colored race is free all over this broad land. One more step was needed, and this amendment, if adopted by three fourths of the States represented in the Union, completes it. It will then be written in the fundamental law, above the strike of faction, and beyond the reach of passion, that all men, without distinction of race or color, shall have equal political privileges. Were there any doubt as to the sufficiency of this amendment to confer equal political privileges, without regard to race or color—were it urged that the right to vote did not necessarily include the right to hold office, it would certainly be dissipated and answered by the arguments advanced in the debates in Congress on the passage of the joint resolution proposing this amendment, as well as by the expressed opinions of the soundest lawyers in the nation. It is thus demonstrated that the right to vote carries with it, by necessary implication, every other political privilege. That this is so, unless there be in the instrument by which it is conferred some positive provision denying it, is beyond all question. This amendment, being adopted, and becoming a part of the Constitu-

tion of the United States, the right of the negro to vote will be guaranteed by the National Constitution; and as there is no restrictive qualification based upon birth, race or color in that instrument, except as to the offices of President and Vice-­President and Senator, it follows that none can exist elsewhere in any subordinate instrument; and all State laws or Constitutions making class qualifications for offices, based upon birth, race or color, become void. A foreigner, disqualified from voting and from office holding in his native country, may become a citizen of the United States, and after due compliance with her laws he is enfranchised. Immediately thereafter he is eligible to any office to which he may be elected, except those of President, Vice-­President and Senator. Can a native-­born citizen, upon becoming enfranchised by the United States, be any less eligible? Certainly not; on the contrary, a native-­born negro, having been made a citizen and a voter by the National Constitution, will be eligible to offices which are denied by the Constitution to the enfranchised foreigner. The adoption of this amendment will, therefore, be hailed as the final triumph of freedom and equal rights for all, and will blot out forever all distinction in political rights, based upon race, color or previous condition as to slavery. Its adoption by the nation will be the consummation of the progress of the last eight years towards a perfect accord between the theory of republicanism and its practical enforcement. This great and fundamental principle being incorporated in the National Constitution, it will be placed beyond the caprice and passion of the hour; so that, should the enthusiasm and love of the Union, which have been intensified by the triumph of the nation over secession and rebellion, ever become cool, it will not be possible for the local prejudice of caste or race, or for partisan desires, to revive and re-­establish an injustice that has already too long existed. The fear is well grounded that even in those States where a large portion of the population is of the colored race, the white race will exercise their superiority in wealth, education and other elements of power in such a manner that in a few years, should the iron hand of the nation be withdrawn, and the selfishness and prejudices of men left to their natural course, the strong would soon overcome the weak, and deny to them those rights which have been so dearly bought and are so highly prized. 555

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House, March 11, 1869 *

The necessity which exists for a constitutional provision of the character of this proposed amendment cannot better be illustrated than by a reference to a bill which, a few days since, received the sanction of a majority of the members of both Houses of your honorable body, and which was sustained by a majority of the senate in opposition to the Executive veto. It will be seen that, even at this time, while the victorious armies, which gave freedom and the ballot to the bondman, are still within our borders, a disposition to grasp exclusive power, and wrest the priceless boon of liberty from the weak and lowly, is made manifest in the bill referred to; for, by its provisions, a municipal government was to have been established, in which no citizen was allowed to vote or hold office, unless he was “the owner of a lot.” This character of legislation, if allowed to stand, would, without doubt, very rapidly extend, and all power would soon be usurped and absorbed by the land-­owners. Measures, therefore, for the protection of the weak cannot come too soon. In ratifying this proposed amendment to the Constitution of the United States, we should remember that we thereby renew for ourselves obligations which we have not heretofore fully recognized. To be consistent, and to give evidence that we act in good faith, we must at once voluntarily yield to the colored citizens the right which has been wrested from them, and restore their representatives to their rightful positions, that their voices may be heard in your halls and their votes recorded upon public measures. Laws would then be enacted, guaranteeing to them ample protection against the local prejudices which have been allowed heretofore to restrain them by violence, intimidation, and other equally effective means, from enjoying their rights, privileges and immunities as citizens entitled to all the consideration due to citizens of any other race in the pursuit of their lawful vocations. The ratification of this amendment by your honorable body, and a recognition of its requirements as here indicated, together with those of the fourteenth amendment—which are as yet disregarded—will, I sincerely hope and confidently believe, secure for us full and complete recognition as a State, definitely settle our political differences, and set at rest, finally and forever, the feelings of uncertainty and insecurity which now excite and disturb a large portion of our people. Rufus B. Bullock, Governor

The House took up the resolution adopting the amendment to the Constitution of the United States, known as the 15th article, and repudiating the construction put thereon by his Excellency the Governor; and upon the adoption of the same the yeas and nays were required to be recorded, and resulted in yeas 67, and nays 59. ... So the resolution was adopted. Mr. Speaker: Upon the ratification of the proposed amendment to the Constitution of the United States, to be known as the fifteenth article, the undersigned vote yes, under the following construction, which they ask to be spread upon the Journal of the House, to wit: The colored man, having heretofore had no political rights, they must be granted to him by express statute, and not by implication. Therefore, the proposed amendment does not confer upon him the right to hold office. Otherwise, no. Wm. I. Hudson T.F. Brewster Wm. S. Erwin

Senate †

March 12, 1869 The Senate then took up the special order for the day, the same being the resolution, as offered by Mr. Winn on Wednesday last, proposing to ratify the fifteenth amendment to the Constitution of the United States. Mr. Wooten moved to discharge the same until the Senate shall be notified of the action of the House thereon. After debate the previous question was called, and being sustained, the main question was ordered upon the motion of Mr. Wooten, which was lost. After debate Mr. Nunnally moved to postpone action for the present, which was not agreed to. After debate the question was put upon the passage of the resolution; whereupon the yeas and nays were required to be recorded, and are yeas 21, nays 16. ... So the resolution was passed. Mr. Smith of the 7th District was granted leave to have the following spread upon the Journal, to wit: * Georgia House Journal 601 (1869). † Georgia Senate Journal 688–94 (1869).

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passed by the House on the same subject in lieu of the resolution of Mr. Winn, which motion was agreed to. After debate Mr. Burns moved to postpone the resolution indefinitely; whereupon the yeas and nays were required to be recorded, and are yeas 18, nays 17—the Chair voting yes.* ... So the resolution was indefinitely postponed.

Mr. President. “Upon the ratification of the proposed amendment to the Constitution of the United States, to be known as article 15th, the undersigned votes yes, under the following construction, which I ask to be spread upon the Journal of the Senate, to wit: “The colored man having heretofore had no political rights, they must be granted to him by express statute, and not by implication. Therefore the proposed amendment does not confer upon him the right to hold office; otherwise, I would vote no.” ...

House, March 18, 1869 †

Mr. Scott of Floyd presented the following protest, which was ordered to be spread upon the Journal: Mr. Speaker: In the name and in behalf of the people of Georgia, whom we represent, and in the name of the Democracy of this State and of the United States, we solemnly protest against the action of this House in adopting the proposed 15th amendment to the Constitution of the United States. We protest against the forcible and wrongful manner in which the question was thrust upon, and brought to a vote in, this House. As it was brought up under a joint resolution, it required that the rules should be suspended by a three-­fourths majority vote to take it up out of its order, and the rules were not suspended, nor was there any motion to suspend. We protest because it is a surrender of our manhood and our honor. We protest because it is a surrender of one of the dearest rights of the State, guaranteed by the Constitution—the right to regulate the subject of the elective franchise by her own citizens. We protest because it is in opposition to the teachings of our fathers, and the spirit and genius of the American Government. We protest because it is a long stride towards central-

March 13, 1869 Mr. Merrill moved to reconsider so much of the Journal of yesterday as relates to the action of the Senate on the resolution of Mr. Winn ratifying the fifteenth amendment to the Constitution of the United States, known as article fifteen. After debate the question was put upon the motion of Mr. Merrill; whereupon the yeas and nays were required to be recorded, and are yeas 19, nays 16. ... So the motion to reconsider prevailed. ...

March 16, 1869 The Senate took up the special order for the day, the same being the resolution of Mr. Winn proposing to ratify the 15th amendment to the Constitution of the United States, &c. ... Mr. Burns moved to amend by making the same the special order for January 1, 1870. After debate the question was put upon the amendment of Mr. Burns; whereupon the yeas and nays were required to be recorded, and are yeas 12, nays 18. ... So the amendment of Mr. Burns was lost. ...

* [As newspapers around the country quickly reported, what would have been a tie vote was broken by the Republican president of the Senate, Benjamin F. Conley. See Evening Post (New York, NY), Mar. 18, 1869, 3. Accordingly, it was a coalition of both Democrats and Republicans that (temporarily) defeated the amendment in Georgia. Only days earlier, Conley had been elected president of the Georgia State Republican Convention and presided over the adoption of a resolution “requesting Congress to reorganize the [Georgia] Legislature, reseat the colored members, and establish a loyal government.” See Cincinnati Daily Enquirer, Mar. 6, 1869, 4. —Ed.] † Georgia House Journal 706–7 (1869).

March 17, 1869 ... The Senate took up the special order for the day, the same being the resolution of Mr. Winn proposing to ratify the fifteenth amendment to the Constitution of the United States. Mr. Burns then moved to take up the resolution as 557

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ization; and centralization leads to despotism, and despotism to revolution. We protest because it is a total abandonment of the great fundamental principle of the Democratic party, which declared, in national convention in New York in July, 1868, “amnesty for all political offenses and the regulation of the elective franchise in the States by their own citizens.” We protest against it because its ratification at this time would be a fraud upon, and a treachery towards, the people who elected us in opposition to the monstrous doctrine contained in the amendment. We protest against it because its adoption will be the triumph of Radicalism, and not the vindication of right, justice or principle. We protest against it because if it should be adopted by the vote of Georgia, it will be an everlasting disgrace and infamy upon her. We protest against it because its ratification will be an invitation to further encroachment upon State sovereignty. We protest, finally, in the name of common decency and self-­respect. In this protest we disclaim all intention of impugning the motive or questioning the sincerity of those who voted for the adoption of said 15th amendment. Dunlap Scott, Thomas W. Grimes, M. R. Ballanger, L. C. A. Warren, C. C. Humber, James A. Harrison.

ing an amendment to the Constitution to be known, if ratified by the requisite number of States, as the Fifteenth Article of the Constitution, reading as follows: ... † When the members of your honorable bodies were elected to your offices the important principles contained in the proposed amendment were not only not at issue, but, were denied by a large number of the best citizens as being in any way involved in the canvass. So far as any expression has been inferentially had from our people, it is entirely unfavorable to the ratification of the amendment proposed. The ratification of it by the proposed number of States will practically change our State constitution, as it declares suffrage to whites alone. Our State constitution expressly provides that no change can be made in it except such as have been agreed to by the Senate and General Assembly, transmitted to and endorsed by a succeeding Legislature, and thereafter endorsed by a direct vote of the people—such vote not being held sooner than four months after the adjournment of the Legislature last acting on the proposed amendment. A period of not less than one and a half years is thus compelled as the briefest time in which any changes can be made in the organic law of the State. The wisdom and propriety of these provisions have never been questioned, I believe. Now the effect of the passage of the proposed amendment by the necessary number of State Legislatures being to change or nullify an important provision of our State Constitution, namely, that which restricts the privilege of suffrage in New Jersey to white male citizens of the United States, can the present Legislature, with any degree of propriety, attempt to do by indirection that which our State Constitution expressly forbids them from doing directly? Especially, in view of the fact that the most complete expression of the State upon the amendment submitted by Congress can be had in a more expressive and reliable form? Can there be any fair justification for your definite action now? Would not action of an ultimate character upon the subject be in violation of the spirit of our whole system of government as it relates to the amending power? And is it not the right of the people of the State, as that of the people of all the States having similar provisions in their State constitutions as to white suffrage, to give their opinion on so important a change by a direct vote and in an ex-

11 New Jersey, Gov. Theodore Randolph’s Message to the Legislature, Note on Rejection of Amendment March 24, 1869*

To the Senate and General Assembly I transmit herewith to the Legislature the concurrent resolution of the Congress of the United States, propos* Daily State Gazette (Trenton, NJ), Mar. 25, 1869, 3.

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† [The text of the Fifteenth Amendment appears here. —Ed.]

B. Ratification, doc. 13

plicit manner, where the whole subject to be decided, shall be acted upon after calm reflection and full consideration? ... For these reasons stated to you, and for others known to you, I respectfully recommend the reference of the whole subject to the people of the State in such manner as will best obtain the deliberate decision.*

Constitution of the United States. Messrs. Baker, Leete, Hughes of Butler, Hill of Defiance, and other Democrats supported the resolution. They took occasion to repeat the usual Democratic argument in reference to the rump Congress and the inferiority of the negro race. Speeches against the resolution were made by Messrs. Scott of Warren and Wolf. About half-­past five the question was postponed until next Thursday.

12 Ohio, House Debate, Rejection of the Fifteenth Amendment

The resolution refusing to ratify the proposed Fifteenth Constitutional Amendment was called up and adopted under operation of the previous question. The vote stood yeas 47, nays 36, a strictly party vote.

House, April 1, 1869 ‡

March 25 and April 1, 1869

13 US Congress, The Requirement Bill: Requiring Virginia, Mississippi, and Texas to Ratify the Fifteenth Amendment as a Condition of Readmission, New York Herald

House, March 25, 1869 † The following resolution refusing to ratify the fifteenth amendment to the Constitution of the United States was then offered: Whereas, The General Assembly has received official notification of the passage by both houses of the Forty-­first Congress of the United States of the following proposition to amend the constitution of the United States in the words following, to wit; [Here follows the fifteenth amendment to the constitution.] And, Whereas, Three-­fourths of the legislatures of the States composing the United States are required to give assent to the proposed amendment to the constitution of the United States before it becomes a part thereof; and Whereas, The people of Ohio, by over fifty thousand majority, have rejected negro suffrage, therefore be it Resolved, By the General Assembly of the State of Ohio, That the Legislature of this State hereby rejects the said Fifteenth article proposed as an Amendment to the Constitution of the United States, and on behalf of the State of Ohio refuses to ratify the same. ... The afternoon was spent in considering the resolution refusing to ratify the Fifteenth Amendment to the * [The New Jersey legislature did not act on the proposed amendment until after the fall elections. Then, on February 7, 1870, the New Jersey legislature officially rejected the amendment. See this section, doc. 33. —Ed.] † Wooster Republican (OH), Apr. 1, 1869, 2.

April 10, 1869, p. 3 Senate

Washington, April 9, 1869 ... On motion of Mr. Trumbull, (rep.) of Ill., the House bill authorizing the submission of the constitution of Virginia, Mississippi and Texas to a vote of the people was taken up. Mr. Morton, (rep.) of Ind., offered as an additional section the joint resolution offered by him the other day, providing that before Virginia, Mississippi and Texas shall be admitted to a representation in Congress their several legislatures shall ratify the fifteenth amendment to the constitution. Mr. Trumbull did not think it wise to add this section to the bill. Congress had already, with great deliberation, passed several acts prescribing the condition of reconstruction, and several States had complied with those conditions and had been admitted to a represen559

‡ Wooster Republican (OH), Apr. 8, 1869, 2.

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tation, and for Congress now to impose additional conditions would be a breach of faith with those people. He had no doubt that those States would ratify the fifteenth amendment without it being made a condition of reconstruction. Mr. Morton denied that it would be a breach of faith. No agreement had been made between Congress and the unreconstructed States. Congress had offered those States reconstruction upon certain conditions, but they had refused to accept the offer, and had stood out in hostility to the government, and now it was the right of Congress to impose whatever conditions it pleased, provided that they were right and just in themselves. He would rather see the pending bill fail than pass without this amendment. The desire of the democratic party was to keep this question of negro suffrage open as an element of success in the election of 1872. The democrats calculated that without the votes of Virginia, Mississippi, Texas and Indiana the fifteenth amendment must fail of ratification, and the only way to defeat that result was by making its ratification a condition of the readmission of those States. Mr. Conkling, (rep.) of N.Y., said the imposition of the new condition proposed by the Senator from Indiana (Mr. Morton) would be a breach of faith. That Senator contended the States in question had remained unreconstructed only because they had willfully stood out and refused to accept reconstruction upon the condition offered by Congress. This certainly was not true of Virginia, one of the States to which this bill is intended to apply. Virginia had gone on as far as she could in the prescribed course of reconstruction, and had failed to complete it only because the commanding general representing the government of the United States had been unable for want of money to hold the election which was necessary as a condition precedent to her admission to a representation in Congress. Mr. Thurman, (dem.) of Ohio, said the power of Congress in relation to changing the constitution was merely to propose amendments. But the amendment of the Senator from Indiana (Mr. Morton) proposed that Congress, having already submitted the fifteenth constitutional amendment to the people, should now go on and coerce certain States into ratifying it. That would be an outrage, not alone upon the people of those States, but upon the people of all the States, by forcing negro suffrage upon them. Indeed, he understood the Senator to say that one great object of his amendment was to over-­ride the will of the people of his State (Indiana).

Mr. Morton—Not to override the will of the people, but to override a revolutionary party in Indiana, which seeks to thwart the will of the people. Mr. Thurman—If the Senate really believes the people of Indiana are in favor of negro suffrage, why not consent to submit it to them directly and not attempt to force it upon them by a Legislature elected on the Chicago platform, which expressly disavowed the intention to force negro suffrage on the States in the Union? After some remarks by Mr. Thurman the amendment was agreed to by the following vote:—30–20.*

14 Ex parte McCardle 74 U.S. 506 (1869)

Mr. Sharkey, for the appellant. Messrs. L. Trumbull and M.H. Carpenter, contra. The CHIEF JUSTICE delivered the opinion of the court. The first question necessarily is that of jurisdiction; for, if the act of March, 1868, takes away the jurisdiction defined by the act of February, 1867, it is useless, if not improper, to enter into any discussion of other questions. It is quite true, as was argued by the counsel for the petitioner, that the appellate jurisdiction of this court is not derived from acts of Congress. It is, strictly speaking, conferred by the Constitution. But it is conferred “with such exceptions and under such regulations as Congress shall make.” It is unnecessary to consider whether, if Congress had made no exceptions and no regulations, this court might not have exercised general appellate jurisdiction under rules prescribed by itself. For among the earliest acts of the first Congress, at its first session, was the act of September 24th, 1789, to establish the judicial courts of the United States. That act provided for the organization of this court, and prescribed regulations for the exercise of its jurisdiction.

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* [The Requirement Bill passed. See Cong. Globe, 41st Cong., 1st Sess., 653–56 (Apr. 9, 1869). Congress would impose the same ratification requirement for the admission of Georgia. See this section, doc. 25. —Ed.]

B. Ratification, doc. 15

The source of that jurisdiction, and the limitations of it by the Constitution and by statute, have been on several occasions subjects of consideration here. In the case of Durousseau  v. The United States, particularly, the whole matter was carefully examined, and the court held, that while “the appellate powers of this court are not given by the judicial act, but are given by the Constitution,” they are, nevertheless, “limited and regulated by that act, and by such other acts as have been passed on the subject.” The court said, further, that the judicial act was an exercise of the power given by the Constitution to Congress “of making exceptions to the appellate jurisdiction of the Supreme Court.” “They have described affirmatively,” said the court, “its jurisdiction, and this affirmative description has been understood to imply a negation of the exercise of such appellate power as is not comprehended within it.” The principle that the affirmation of appellate jurisdiction implies the negation of all such jurisdiction not affirmed having been thus established, it was an almost necessary consequence that acts of Congress, providing for the exercise of jurisdiction, should come to be spoken of as acts granting jurisdiction, and not as acts making exceptions to the constitutional grant of it. The exception to appellate jurisdiction in the case before us, however, is not an inference from the affirmation of other appellate jurisdiction. It is made in terms. The provision of the act of 1867, affirming the appellate jurisdiction of this court in cases of habeas corpus is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception. We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words. What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle. Several cases were cited by the counsel for the petitioner in support of the position that jurisdiction of this case is not affected by the repealing act. But none of them, in our judgment, afford any support to it. They are all cases of the exercise of judicial power by the legisla-

ture, or of legislative interference with courts in the exercising of continuing jurisdiction. On the other hand, the general rule, supported by the best elementary writers, is, that “when an act of the legislature is repealed, it must be considered, except as to transactions past and closed, as if it never existed.” And the effect of repealing acts upon suits under acts repealed, has been determined by the adjudications of this court. The subject was fully considered in Norris v. Crocker, and more recently in Insurance Company  v. Ritchie. In both of these cases it was held that no judgment could be rendered in a suit after the repeal of the act under which it was brought and prosecuted. It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer. Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised. The appeal of the petitioner in this case must be DISMISSED FOR WANT OF JURISDICTION.

15 Texas v. White

74 U.S. 700 (1869)

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The CHIEF JUSTICE delivered the opinion of the court. This is an original suit in this court, in which the State of Texas, claiming certain bonds of the United States as her property, asks an injunction to restrain the defendants from receiving payment from the National government, and to compel the surrender of the bonds to the State. It appears from the bill, answers, and proofs, that the United States, by act of September 9, 1850, offered to the State of Texas, in compensation for her claims connected with the settlement of her boundary, $10,000,000

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in five percent bonds, each for the sum of $1,000; and that this offer was accepted by Texas. One-­half of these bonds were retained for certain purposes in the National treasury, and the other half were delivered to the State. The bonds thus delivered were dated January 1, 1851, and were all made payable to the State of Texas, or bearer, and redeemable after the 31st day of December, 1864. They were received in behalf of the State by the comptroller of public accounts, under authority of an act of the legislature, which, besides giving that authority, provided that no bond should be available in the hands of any holder until after indorsement by the governor of the State. After the breaking out of the rebellion, the insurgent legislature of Texas, on the 11th of January, 1862, repealed the act requiring the indorsement of the governor, and, on the same day, provided for the organization of a military board, composed of the governor, comptroller, and treasurer, and authorized a majority of that board to provide for the defence of the State by means of any bonds in the treasury, upon any account, to the extent of $1,000,000. The defence contemplated by the act was to be made against the United States by war. Under this authority, the military board entered into an agreement with George W. White and John Chiles, two of the defendants, for the sale to them of one hundred and thirty-­ five of these bonds, then in the treasury of the State, and seventy-­six more, then deposited with Droege & Co., in England, in payment for which they engaged to deliver to the board a large quantity of cotton cards and medicines. This agreement was made on the 12th of January, 1865. On the 12th of March, 1865, White and Chiles received from the military board one hundred and thirty-­ five of these bonds, none of which were indorsed by any governor of Texas. Afterward, in the course of the years 1865 and 1866, some of the same bonds came into the possession of others of the defendants, by purchase, or as security for advances of money. Such is a brief outline of the case. It will be necessary hereafter to refer more in detail to some particular circumstances of it. The first inquiries to which our attention was directed by counsel, arose upon the allegations of the answer of Chiles (1) that no sufficient authority is shown for the prosecution of the suit in the name and on the behalf of the State of Texas, and (2) that the State, having severed her relations with a majority of the States of the Union, and having by her ordinance of secession attempted to throw off her allegiance to the Constitution

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and government of the United States, has so far changed her status as to be disabled from prosecuting suits in the National courts. The first of these allegations is disproved by the evidence. A letter of authority, the authenticity of which is not disputed, has been produced, in which J. W. Throckmorton, elected governor under the constitution adopted in 1866 and proceeding under an act of the State legislature relating to these bonds, expressly ratifies and confirms the action of the solicitors who filed the bill, and empowers them to prosecute this suit, and it is further proved by the affidavit of Mr. Paschal, counsel for the complainant, that he was duly appointed by Andrew J. Hamilton, while provisional governor of Texas, to represent the State of Texas in reference to the bonds in controversy, and that his appointment has been renewed by E. M. Pease, the actual governor. If Texas was a State of the Union at the time of these acts, and these persons, or either of them, were competent to represent the State, this proof leaves no doubt upon the question of authority. The other allegation presents a question of jurisdiction. It is not to be questioned that this court has original jurisdiction of suits by States against citizens of other States, or that the States entitled to invoke this jurisdiction must be States of the Union. But it is equally clear that no such jurisdiction has been conferred upon this court of suits by any other political communities than such States. If, therefore, it is true that the State of Texas was not, at the time of filing this bill, or is not now, one of the United States, we have no jurisdiction of this suit, and it is our duty to dismiss it. We are very sensible of the magnitude and importance of this question, of the interest it excites, and of the difficulty, not to say impossibility, of so disposing of it as to satisfy the conflicting judgments of men equally enlightened, equally upright, and equally patriotic. But we meet it in the case, and we must determine it in the exercise of our best judgment, under the guidance of the Constitution alone. Some not unimportant aid, however, in ascertaining the true sense of the Constitution may be derived from considering what is the correct idea of a State, apart from any union or confederation with other States. The poverty of language often compels the employment of terms in quite different significations, and of this hardly any example more signal is to be found than in the use of the word we are now considering. It would serve no

B. Ratification, doc. 15

useful purpose to attempt an enumeration of all the various senses in which it is used. A few only need be noticed. It describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country or territorial region, inhabited by such a community; not unfrequently it is applied to the government under which the people live; at other times, it represents the combined idea of people, territory, and government. It is not difficult to see that, in all these senses, the primary conception is that of a people or community. The people, in whatever territory dwelling, either temporarily or permanently, and whether organized under a regular government, or united by looser and less definite relations, constitute the state. This is undoubtedly the fundamental idea upon which the republican institutions of our own country are established. It was stated very clearly by an eminent judge, in one of the earliest cases adjudicated by this court, and we are not aware of anything in any subsequent decision of a different tenor. In the Constitution, the term “state” most frequently expresses the combined idea just noticed, of people, territory, and government. A “state,” in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such states, under a common constitution, which forms the distinct and greater political unit which that Constitution designates as the United States, and makes of the people and states which compose it one people and one country. The use of the word in this sense hardly requires further remark. In the clauses which impose prohibitions upon the States in respect to the making of treaties, emitting of bills of credit, and laying duties of tonnage, and which guarantee to the States representation in the House of Representatives and in the Senate, are found some instances of this use in the Constitution. Others will occur to every mind. But it is also used in its geographical sense, as in the clauses which require that a representative in Congress shall be an inhabitant of the State in which he shall be chosen, and that the trial of crimes shall be held within the State where committed.

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And there are instances in which the principal sense of the word seems to be that primary one to which we have adverted, of a people or political community, as distinguished from a government. In this latter sense, the word seems to be used in the clause which provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion. In this clause, a plain distinction is made between a State and the government of a State. Having thus ascertained the senses in which the word state is employed in the Constitution, we will proceed to consider the proper application of what has been said. The Republic of Texas was admitted into the Union, as a State, on the 27th of December, 1845. By this act, the new State, and the people of the new State, were invested with all the rights, and became subject to all the responsibilities and duties of the original States under the Constitution. From the date of admission until 1861, the State was represented in the Congress of the United States by her senators and representatives, and her relations as a member of the Union remained unimpaired. In that year, acting upon the theory that the rights of a State under the Constitution might be renounced, and her obligations thrown off at pleasure, Texas undertook to sever the bond thus formed, and to break up her constitutional relations with the United States. On the 1st of February, a convention, called without authority but subsequently sanctioned by the legislature regularly elected, adopted an ordinance to dissolve the union between the State of Texas and the other States under the Constitution of the United States, whereby Texas was declared to be “a separate and sovereign State,” and “her people and citizens” to be “absolved from all allegiance to the United States, or the government thereof.” It was ordered by a vote of the convention and by an act of the legislature that this ordinance should be submitted to the people, for approval or disapproval, on the 23d of February, 1861. Without awaiting, however, the decision thus invoked, the convention, on the 4th of February, adopted a resolution designating seven delegates to represent the State in the convention of seceding States at Montgomery, “in order,” as the resolution declared, “that the wishes and interests of the people of Texas may be consulted in reference to the constitution and provisional

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government that may be established by said convention.” Before the passage of this resolution, the convention had appointed a committee of public safety and adopted an ordinance giving authority to that committee to take measures for obtaining possession of the property of the United States in Texas, and for removing the National troops from her limits. The members of the committee, and all officers and agents appointed or employed by it, were sworn to secrecy and to allegiance to the State. Commissioners were at once appointed, with instructions to repair to the headquarters of General Twiggs, then representing the United States in command of the department, and to make the demands necessary for the accomplishment of the purposes of the committee. A military force was organized in support of these demands, and an arrangement was effected with the commanding general by which the United States troops were engaged to leave the State, and the forts and all the public property not necessary to the removal of the troops were surrendered to the commissioners. These transactions took place between the 2d and the 18th of February, and it was under these circumstances that the vote upon the ratification or rejection of the ordinance of secession was taken on the 23d of February. It was ratified by a majority of the voters of the State. The convention, which had adjourned before the vote was taken, reassembled on the 2d of March and instructed the delegates already sent to the Congress of the seceding States to apply for admission into the confederation and to give the adhesion of Texas to its provisional constitution. It proceeded also to make the changes in the State constitution which this adhesion made necessary. The words “United States” were stricken out wherever they occurred and the words “Confederate States” substituted, and the members of the legislature, and all officers of the State, were required by the new constitution to take an oath of fidelity to the constitution and laws of the new confederacy. Before, indeed, these changes in the constitution had been completed, the officers of the State had been required to appear before the committee and take an oath of allegiance to the Confederate States. The governor and secretary of state, refusing to comply, were summarily ejected from office. The members of the legislature, which had also ad-

journed and reassembled on the 18th of March, were more compliant. They took the oath and proceeded, on the 8th of April, to provide by law for the choice of electors of president and vice-­president of the Confederate States. The representatives of the State in the Congress of the United States were withdrawn, and, as soon as the seceded States became organized under a constitution, Texas sent senators and representatives to the Confederate Congress. In all respects, so far as the object could be accomplished by ordinances of the convention, by acts of the legislature, and by votes of the citizens, the relations of Texas to the Union were broken up and new relations to a new government were established for them. The position thus assumed could only be maintained by arms, and Texas accordingly took part, with the other Confederate States, in the war of the rebellion which these events made inevitable. During the whole of that war, there was no governor, or judge, or any other State officer in Texas who recognized the National authority. Nor was any officer of the United States permitted to exercise any authority whatever under the National government within the limits of the State except under the immediate protection of the National military forces. Did Texas, in consequence of these acts, cease to be a State? Or, if not, did the State cease to be a member of the Union? It is needless to discuss at length the question whether the right of a State to withdraw from the Union for any cause regarded by herself as sufficient is consistent with the Constitution of the United States. The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not? But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual 564

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existence, or of the right of self-­government, by the States. Under the Articles of Confederation, each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still all powers not delegated to the United States nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term that “the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence,” and that, “without the States in union, there could be no such political body as the United States.” Not only, therefore, can there be no loss of separate and independent autonomy to the States through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States. Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State

must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation. Our conclusion therefore is that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the National government, but entirely in accordance with the whole series of such acts and declarations since the first outbreak of the rebellion. But in order to the exercise, by a State, of the right to sue in this court, there needs to be a State government, competent to represent the State in its relations with the National government, so far as least as the institution and prosecution of a suit is concerned. And it is by no means a logical conclusion from the premises which we have endeavored to establish that the governmental relations of Texas to the Union remained unaltered. Obligations often remain unimpaired while relations are greatly changed. The obligations of allegiance to the State, and of obedience to her laws, subject to the Constitution of the United States, are binding upon all citizens, whether faithful or unfaithful to them, but the relations which subsist while these obligations are performed are essentially different from those which arise when they are disregarded and set at nought. And the same must necessarily be true of the obligations and relations of States and citizens to the Union. No one has been bold enough to contend that, while Texas was controlled by a government hostile to the United States, and in affiliation with a hostile confederation, waging war upon the United States, senators chosen by her legislature, or representatives elected by her citizens, were entitled to seats in Congress, or that any suit instituted in her name could be entertained in this court. All admit that, during this condition of civil war, the rights of the State as a member, and of her people as citizens of the Union, were suspended. The government and the citizens of the State, refusing to recognize their constitutional obligations, assumed the character of enemies, and incurred the consequences of rebellion. These new relations imposed new duties upon the United States. The first was that of suppressing the rebellion. The next was that of reestablishing the broken relations of the State with the Union. The first of these 565

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duties having been performed, the next necessarily engaged the attention of the National government. The authority for the performance of the first had been found in the power to suppress insurrection and carry on war; for the performance of the second, authority was derived from the obligation of the United States to guarantee to every State in the Union a republican form of government. The latter, indeed, in the case of a rebellion which involves the government of a State and for the time excludes the National authority from its limits, seems to be a necessary complement to the former. Of this, the case of Texas furnishes a striking illustration. When the war closed, there was no government in the State except that which had been organized for the purpose of waging war against the United States. That government immediately disappeared. The chief functionaries left the State. Many of the subordinate officials followed their example. Legal responsibilities were annulled or greatly impaired. It was inevitable that great confusion should prevail. If order was maintained, it was where the good sense and virtue of the citizens gave support to local acting magistrates, or supplied more directly the needful restraints. A great social change increased the difficulty of the situation. Slaves, in the insurgent States, with certain local exceptions, had been declared free by the Proclamation of Emancipation, and whatever questions might be made as to the effect of that act under the Constitution, it was clear from the beginning that its practical operation in connection with legislative acts of like tendency must be complete enfranchisement. Wherever the National forces obtained control, the slaves became freemen. Support to the acts of Congress and the proclamation of the President concerning slaves was made a condition of amnesty by President Lincoln in December, 1863, and by President Johnson in May, 1865. And emancipation was confirmed, rather than ordained, in the insurgent States by the amendment to the Constitution prohibiting slavery throughout the Union which was proposed by Congress in February, 1865, and ratified before the close of the following autumn by the requisite three-­fourths of the States. The new freemen necessarily became part of the people, and the people still constituted the State, for States, like individuals, retain their identity though changed to some extent in their constituent elements. And it was the State, thus constituted, which was now entitled to the benefit of the constitutional guaranty.

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There being then no government in Texas in constitutional relations with the Union, it became the duty of the United States to provide for the restoration of such a government. But the restoration of the government which existed before the rebellion, without a new election of officers, was obviously impossible, and before any such election could be properly held, it was necessary that the old constitution should receive such amendments as would conform its provisions to the new conditions created by emancipation, and afford adequate security to the people of the State. In the exercise of the power conferred by the guaranty clause, as in the exercise of every other constitutional power, a discretion in the choice of means is necessarily allowed. It is essential only that the means must be necessary and proper for carrying into execution the power conferred, through the restoration of the State to its constitutional relations, under a republican form of government, and that no acts be done, and no authority exerted, which is either prohibited or unsanctioned by the Constitution. It is not important to review at length the measures which have been taken under this power by the executive and legislative departments of the National government. It is proper, however, to observe that, almost immediately after the cessation of organized hostilities, and while the war yet smouldered in Texas, the President of the United States issued his proclamation appointing a provisional governor for the State and providing for the assembling of a convention with a view to the reestablishment of a republican government under an amended constitution, and to the restoration of the State to her proper constitutional relations. A convention was accordingly assembled, the constitution amended, elections held, and a State government, acknowledging its obligations to the Union, established. Whether the action then taken was in all respects warranted by the Constitution it is not now necessary to determine. The power exercised by the President was supposed, doubtless, to be derived from his constitutional functions, as commander-­in-­chief, and, so long as the war continued, it cannot be denied that he might institute temporary government within insurgent districts occupied by the National forces, or take measures in any State for the restoration of State government faithful to the Union, employing, however, in such efforts, only such means and agents as were authorized by constitutional laws. But the power to carry into effect the clause of guar-

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anty is primarily a legislative power, and resides in Congress. Under the fourth article of the Constitution, it rests with Congress to decide what government is the established one in a State. For, as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. This is the language of the late Chief Justice, speaking for this court, in a case from Rhode Island, arising from the organization of opposing governments in that State. And we think that the principle sanctioned by it may be applied with even more propriety to the case of a State deprived of all rightful government by revolutionary violence, though necessarily limited to cases where the rightful government is thus subverted or in imminent danger of being overthrown by an opposing government set up by force within the State. The action of the President must therefore be considered as provisional, and in that light it seems to have been regarded by Congress. It was taken after the term of the 38th Congress had expired. The 39th Congress, which assembled in December, 1865, followed by the 40th Congress, which met in March, 1867, proceeded, after long deliberation, to adopt various measures for reorganization and restoration. These measures were embodied in proposed amendments to the Constitution, and in the acts known as the Reconstruction Acts, which have been so far carried into effect that a majority of the States which were engaged in the rebellion have been restored to their constitutional relations, under forms of government adjudged to be republican by Congress, through the admission of their “Senators and Representatives into the councils of the Union.” Nothing in the case before us requires the court to pronounce judgment upon the constitutionality of any particular provision of these acts. But it is important to observe that these acts themselves show that the governments which had been established and had been in actual operation under executive direction were recognized by Congress as provisional, as existing, and as capable of continuance. By the act of March 2, 1867, the first of the series, these governments were, indeed, pronounced illegal and were subjected to military control, and were declared to be provisional only, and by the supplementary act of July 19, 1867, the third of the series, it was further declared that it was the true intent and meaning of the

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act of March 2 that the governments then existing were not legal State governments, and, if continued, were to be continued subject to the military commanders of the respective districts and to the paramount authority of Congress. We do not inquire here into the constitutionality of this legislation so far as it relates to military authority, or to the paramount authority of Congress. It suffices to say that the terms of the acts necessarily imply recognition of actually existing governments, and that, in point of fact, the governments thus recognized in some important respects still exist. What has thus been said generally describes, with sufficient accuracy, the situation of Texas. A provisional governor of the State was appointed by the President in 1865; in 1866, a governor was elected by the people under the constitution of that year; at a subsequent date, a governor was appointed by the commander of the district. Each of the three exercised executive functions and actually represented the State in the executive department. In the case before us, each has given his sanction to the prosecution of the suit, and we find no difficulty, without investigating the legal title of either to the executive office, in holding that the sanction thus given sufficiently warranted the action of the solicitor and counsel in behalf of the State. The necessary conclusion is that the suit was instituted and is prosecuted by competent authority. The question of jurisdiction being thus disposed of, we proceed to the consideration of the merits as presented by the pleadings and the evidence. And the first question to be answered is whether or not the title of the State to the bonds in controversy was divested by the contract of the military board with White and Chiles? ... It follows that the title of the State was not divested by the act of the insurgent government in entering into this contract. But it was insisted further, in behalf of those defendants who claim certain of these bonds by purchase or as collateral security, that however unlawful may have been the means by which White and Chiles obtained possession of the bonds, they are innocent holders without notice, and entitled to protection as such under the rules which apply to securities which pass by delivery. These rules were fully discussed in Murray v. Lardner. We held in that case that the purchaser of coupon bonds, before due, without notice and in good faith, is

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unaffected by want of title in the seller, and that the burden of proof in respect to notice and want of good faith is on the claimant of the bonds as against the purchaser. We are entirely satisfied with this doctrine. Does the State, then, show affirmative notice to these defendants of want of title to the bonds in White and Chiles? It would be difficult to give a negative answer to this question if there were no other proof than the legislative acts of Texas. But there is other evidence which might fairly be held to be sufficient proof of notice if the rule to which we have adverted could be properly applied to this case. But these rules have never been applied to matured obligations. Purchasers of notes or bonds past due take nothing but the actual right and title of the vendors. ... It is impossible, upon this evidence, to hold the defendants protected by absence of notice of the want of title in White and Chiles. As these persons acquired no right to payment of these bonds as against the State, purchasers could acquire none through them. On the whole case, therefore, our conclusion is that the State of Texas is entitled to the relief sought by her bill, and a decree must be made accordingly.

her voice been heard in the late election of President? Is she not now held and governed as a conquered province by military force? The act of Congress of March 2d, 1867, declares Texas to be a “rebel State,” and provides for its government until a legal and republican State government could be legally established. It constituted Louisiana and Texas the fifth military district, and made it subject not to the civil authority, but to the “military authorities of the United States.” It is true that no organized rebellion now exists there, and the courts of the United States now exercise jurisdiction over the people of that province. But this is no test of the State’s being in the Union; Dacotah is no State, and yet the courts of the United States administer justice there as they do in Texas. The Indian tribes, who are governed by military force, cannot claim to be States of the Union. Wherein does the condition of Texas differ from theirs? Now, by assuming or admitting as a fact the present status of Texas as a State not in the Union politically, I beg leave to protest against any charge of inconsistency as to judicial opinions heretofore expressed as a member of this court, or silently assented to. I do not consider myself bound to express any opinion judicially as to the constitutional right of Texas to exercise the rights and privileges of a State of this Union, or the power of Congress to govern her as a conquered province, to subject her to military domination, and keep her in pupilage. I can only submit to the fact as decided by the political position of the government, and I am not disposed to join in any essay to prove Texas to be a State of the Union when Congress have decided that she is not. It is a question of fact, I repeat, and of fact only. Politically, Texas is not a State in this Union. Whether rightfully out of it or not is a question not before the court. ... The ordinance of secession was adopted by the convention on the 18th of February, 1861, submitted to a vote of the people, and ratified by an overwhelming majority. I admit that this was a very ill-­advised measure. Still, it was the sovereign act of a sovereign State, and the verdict on the trial of this question, “by battle,” as to her right to secede, has been against her. But that verdict did not settle any question not involved in the case. It did not settle the question of her right to plead insanity and set aside all her contracts, made during the pending of the trial, with her own citizens, for food, clothing, or medicines. The same “organized political body,” exercis-

Mr. Justice GRIER, dissenting. I regret that I am compelled to dissent from the opinion of the majority of the court on all the points raised and decided in this case. The first question in order is the jurisdiction of the court to entertain this bill in behalf of the State of Texas. The original jurisdiction of this court can be invoked only by one of the United States. The Territories have no such right conferred on them by the Constitution, nor have the Indian tribes who are under the protection of the military authorities of the government. Is Texas one of these United States? Or was she such at the time this bill was filed, or since? This is to be decided as a political fact, not as a legal fiction. This court is bound to know and notice the public history of the nation. If I regard the truth of history for the last eight years, I cannot discover the State of Texas as one of these United States. . . . Is Texas a State, now represented by members chosen by the people of that State and received on the floor of Congress? Has she two senators to represent her as a State in the Senate of the United States? Has 568

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ing the sovereign power of the State, which required the indorsement of these bonds by the governor also passed the laws authorizing the disposal of them without such indorsement. She cannot, like the chameleon, assume the color of the object to which she adheres, and ask this court to involve itself in the contradictory positions that she is a State in the Union and was never out of it, and yet not a State at all for four years, during which she acted and claims to be “an organized political body,” exercising all the powers and functions of an independent sovereign State. Whether a State de facto or de jure, she is estopped from denying her identity in disputes with her own citizens. If they have not fulfilled their contract, she can have her legal remedy for the breach of it in her own courts. ...

off the Northern States, for what they deem an act of gross oppression, in their own coin. Human nature, and especially Southern human nature, must have greatly changed, if they do not eagerly embrace it. But we confess we do not like this method either of admitting these States or of amending the Constitution. It is a departure both from the original act of reconstruction, and from the fundamental principles of our Government. The Reconstruction law laid down certain acts and principles as conditions of readmission for all the States that had engaged in the rebellion. A requirement to vote for this amendment was not among them. It is now added as a new condition. Senators Trumbull and Conkling both justly denounced it as a violation of good faith, and a departure from the original principles of the whole policy of reconstruction. But as a means of amending the Constitution it is open to still graver objections. We say nothing of the character of the constitutional amendment itself, which certainly is not beyond criticism. But it is to be passed, if passed at all, by the vote of the people, in theory at least. But this new measure leaves the people no voice in the matter,—no freedom of action whatever, and without such freedom of action all pretence of vote is sheer mockery. They are to be coerced into voting for the amendment, by act of Congress. They are to be excluded from the Union, not because they are not loyal, not because they have failed to do any act indicating their fitness to return, or to comply with any of the conditions originally prescribed, but because they fail to join in forcing negro suffrage upon the Northern States. If the Constitution is thus amended it will be the sheerest folly to talk of its having been done by the will of the people or by the action of the several States. It will have been changed by act of Congress—nothing more and nothing less. This amendment to the Reconstruction act will add greatly to the difficulties which surround the peaceful settlement of the whole question, and eventually involve the country in embarassments quite as great as any from which it has escaped. It is the work of Mr. Morton, one of the Senators from Indiana, and is another illustration of the reckless and unscrupulous temper with which he pursues his political ends. It is very generally understood that in his own State, Indiana, as well as in Ohio, New York, and perhaps some others of the larger and more powerful of the old States, the sentiment of the people is opposed to the amendment. In

Mr. Justice SWAYNE. I concur with my brother Grier as to the incapacity of the State of Texas, in her present condition, to maintain an original suit in this court. The question, in my judgment, is one in relation to which this court is bound by the action of the legislative department of the government. Upon the merits of the case, I agree with the majority of my brethren. I am authorized to say that my brother MILLER unites with me in these views.

16 “The Fifteenth Amendment,” New York Times April 12, 1869, p. 4

The new Reconstruction bill, allowing Virginia, Mississippi and Texas to return to the Union on condition that their Legislatures ratify the Fifteenth Amendment to the Constitution, has become a law and will undoubtedly accomplish its objects. There can be no doubt those States will ratify the amendment, for it simply imposes on the Northern States negro suffrage, which the Northern States have already imposed on them. While, therefore, it does not in the least affect their own political condition, it gives them an excellent opportunity to pay 569

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neither of them would its friends venture to submit it to the popular vote. The object of Mr. Morton’s amendment, therefore, was to dispense entirely with the votes of these States by coercing the Southern States which are seeking readmission to the Union, to vote in its favor, and thus render the votes of the others needless. By this device the amendment may be adopted. But it will not command the respect of the people, and will contribute eventually to weaken, and possibly overthrow, the party which makes itself responsible for it.

to the proposed fifteenth amendment to the Constitution of the United States be suspended until the question of free suffrage for colored men shall be determined by the people of the State. The President put the question whether the Senate would agree to said motion of Mr. Hubbard, and it was decided in the negative, as follows: [For the affirmative 15, for the negative 17] ... The President then put the question whether the Senate would agree to said resolution, and it was decided in the affirmative, as follows: [For the affirmative 17, for the negative 15]‡

17 New York, Ratification of the Fifteenth Amendment

18 Annual Meeting of the American Equal Rights Association, Remarks of Stephen Foster, Elizabeth Cady Stanton, and Frederick Douglass, New York, NY

April 14, 1869*

The President announced the special order, being the concurrent resolution of the Assembly relative to the proposed amendment of the Constitution of the United States, as follows: Whereas, at the session of the fortieth Congress, it was resolved by the Senate and the House of Representatives of the United States of America in Congress assembled, two-­thirds of both Houses concurring, that the following article shall be proposed to the Legislatures of the several States, as an amendment to the Constitution of the United States, which said amendment, when it shall have been ratified by three-­fourths of the said Legislatures, shall be valid to all intents and purposes as part of the said Constitution, namely: ... † Resolved, (if the Senate concur,) That the said proposed amendment to the Constitution be and is hereby ratified by the Legislature of the State of New York. Mr. Hubbard moved the following amendment for the resolution under consideration: Whereas, a proposition is about to be submitted to the people of this State for them to determine whether they will adopt free suffrage for colored men in this State or not; therefore, be it Resolved, That all action of the Legislature in relation

May 12–13, 1869

First Day, May 12, 1869 §

The anniversary exercises of this Association commenced on Wednesday morning of last week at Steinway Hall, in this city. ... In the absence of the president, Mrs. Lucretia Mott, the chair was taken by Mrs. Elizabeth Cady Stanton, First Vice-­President. Rev. Mrs. Hanaford, of Massachusetts, opened the meeting with prayer. On the platform were seated Elizabeth Cady Stanton, Ernestine L. Rose, of New York; Susan B. Anthony of The Revolution . . . and others. Mrs. Stanton then made a brief opening address. She remarked that the cry of many in the present day, both here and in England, is that republicanism is a failure. But republicanism, that is to say the equal rights of all before the law—black and white, men and women— ‡ [On January 5, 1870, the New York legislature voted to rescind the state’s ratification of the Fifteenth Amendment. See this section, doc. 26. —Ed.] § Revolution (New York, NY), May 20, 1869, 1–2.

* New York Senate Journal 589–90 (1869). † [The text of the Fifteenth Amendment appears here. —Ed.]

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has never been yet tried in this country or any where else, and till it is fairly tried it cannot be called a failure. The danger, the weakness, of our present system is that it is only part republican. We can never have true republicanism till the whole idea of aristocracy, or sex or anything else is abandoned. This is the only safety of the country, and the Women’s Rights movement is therefore a great patriotic movement. It is not only merely the right of woman to drop a ballot into a box that is fought for; it is the safety and perpetuity of our government. ... The Committee on Organization then made their report. They recommended as the officers and committees of the society for the ensuing year: President, Lucretia Mott. Vice Presidents at Large—Mrs. Elizabeth Cady Stanton and Ernestine L. Rose ... Executive Committee—Elizabeth R. Tilton, Lucy Stone, Edwin Studwell, Susan B. Anthony. ... The Rev. Stephen Foster rose and made a lengthy speech. . . . He objected, he said, to certain nominations made by the Committee for various reasons. The first was that the persons nominated had publicly repudiated the principles of the society. One of these was the presiding officer. ... Mrs. Stanton—I would like Mr. Foster to state in what way. Mr. Foster—What are these principles? The equality of men—universal suffrage. Now, these ladies stand at the head of a paper, which has adopted as its motto Educated Suffrage. Now, I put myself on this platform as an enemy of educated suffrage, as an enemy of white suffrage, as an enemy of man suffrage, as an enemy of every kind of suffrage except universal suffrage. The Revolution lately had an article headed “That Infamous Fifteenth Amendment.” It is true it was not written by our President; yet it comes from a person whom she has over and over again publicly endorsed. Now, I am not willing to take George Francis Train on this platform with his ridicule of the negro and opposition to his enfranchisement. Mrs. Mary A. Livermore—Is it quite generous to bring George Francis Train on this platform when he has retired from The Revolution entirely? Mr. Foster—If The Revolution, which has so often

indorsed George Francis Train, will repudiate him because of his course in respect to the negro’s rights, I have nothing further to say. But they do not repudiate him. He goes out; they do not cast him out. Miss Anthony—Of course we do not. ... Mr. Foster— . . . Now I only wanted to tell you why the Massachusetts society cannot coalesce with the party here and why we want these women to retire and leave us to nominate officers who can receive the respect of both parties. The Massachusetts abolitionists cannot co-­operate with this society as it is now organized. There are certain persons who could serve the cause, if they only loved it better than themselves. If you choose to put officers here that ridicule the negro, and pronounce the Fifteenth Amendment infamous, why I must retire; I cannot work with you, you cannot have my support, and you must not use my name. ... The vote on the report of the Committee on Organization was now taken and the report was adopted by a large majority. Mr. Douglass—I came here more as a listener than to speak, and I have listened with a great deal of pleasure to the eloquent address of the Rev. Mr. Frothingham and the splendid address of the President. There is no name greater than that of Elizabeth Cady Stanton in the matter of Women’s Rights and Equal Rights, but my sentiments are tinged a little against The Revolution. There was an address to which I allude, a sentiment in reference to employment and certain names, such as “Sambo,” and the gardener and the bootblack and the daughter of Jefferson and Washington, and all the rest that I cannot coincide with. I have asked what difference there is between the daughters of Jefferson and Washington and other daughters. (Laughter.) I must say that I do not see how any one can pretend that there is the same urgency in giving the ballot to women as to the negro. With us, the matter is a question of life and death. It is a matter of existence, at least, in fifteen States of the Union. When women, because they are women, are hunted down through the streets of New York and New Orleans; when they are dragged from their houses and hung upon lamp-­posts; when their children are torn from their arms, and their brains dashed out upon the pavement; when they are objects of insult and outrage at every turn; when they are in danger of having their homes burnt down over 571

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their heads; when their children are not allowed to enter schools; then they will have an urgency to obtain the ballot equal to our own. (Great applause.) A Voice—Is that not all true about black women? Mr. Douglass—Yes, yes, yes, it is true of the black woman, but not because she is a woman but because she is black. (Applause.) Julia Ward Howe at the conclusion of her great speech delivered at the convention in Boston last year, said, “I am willing that the negro shall get it before me.” (Applause.) Woman! Why she has ten thousand modes of grappling with her difficulties. I believe that all the virtue of the world can take care of all the evil. I believe that all the intelligence can take care of all the ignorance. (Applause.) I am in favor of Women’s Suffrage in order that we shall have all the virtue and all vice confronted. Let me tell you that when there were few houses in which the black man could have put his head, this wooley head of mine found a refuge in the house of Mrs. Elizabeth Cady Stanton, and if I had been blacker then sixteen midnights, without a single star, it would have been the same. (Applause.) Miss Anthony—I want to say a single word. The old anti-­slavery school and others have said that the women must stand back and wait while the other class shall be recognized. But we say that if you will not give the whole loaf of justice and suffrage to an entire people, give it to the most intelligent first. (Applause.) While I was canvassing the state with petitions in my hand and had them filled with names for our cause and sent them to the legislature, a man dared to say to me that the freedom of women was all a theory and not a practical thing. (Applause.) When Mr. Douglass mentioned the black man first and the woman last, if he had noticed he would have seen that it was the men that clapped and not the women. There is not the woman born who desires to eat the bread of dependence, no matter whether it be from the hand of father, husband or brother; for any one who does so eat her bread places herself in the power of the person from whom she takes it. (Applause.) Mr. Douglass talks about the wrongs of the negro; how he is hunted down, and the children’s brains dashed out by mobs; but with all the wrongs and outrages that he to-­day suffers, he would not exchange his sex and take the place of Elizabeth Cady Stanton. (Laughter and applause.) ... Mr. Douglass—Will you allow me— Miss Anthony—Yes, anything; we are in for a fight today (great laughter and applause).

Second Day, May 13, 1869 *

Fred. Douglass said that as there is a most important question submitted to the American people, he wanted to have a vote upon it from that audience. He then read the following resolutions: Resolved, That the American Equal Rights Association, in loyalty towards comprehensive demands for the political equality of all American citizens, without distinction of race or sex, hails the extension of suffrage to any class heretofore disfranchised, as a cheering part of the triumph of our whole idea. Resolved, therefore, That we gratefully welcome the pending fifteenth amendment, prohibiting disenfranchisement on account of race, and earnestly solicit the state legislatures to pass it without delay. Resolved, furthermore, That in view of this promised and speedy culmination of one half of our demands, we are stimulated to redouble our energy to secure the further amendment guaranteeing the same sacred rights without limitation to sex. Resolved, That until the Constitution shall know neither black nor white, neither male nor female, but only the equal rights of all classes, we renew our solemn indictment against that instrument as defective, unworthy, and an oppressive charter for the self-­ government of a free people. (Applause and hisses) ... A Lady—I move that these resolutions be laid upon the table for future consideration. The President—Of course. You see these resolutions require discussion: therefore, they had better be laid upon the table for future consideration. ... The President† then took the floor and argued that not another man should be enfranchised until enough women are admitted to the polls to outweigh those who have the franchise. (Applause.) She did not believe in allowing ignorant negroes and ignorant and debased Chinamen to make laws for her to obey. (Applause.) Mrs. Harper (colored) asked Mr. Blackwell to read the fifth resolution of the series he submitted, and contended that that covered the whole ground of the resolutions of Mr. Douglass.

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* The Frederick Douglass Papers, Series One, ed. John W. Blassingame et al. (New Haven, CT: Yale University Press, 1991), 4:217–19. † [That is, Mrs. Stanton. —Ed.]

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Miss Anthony—Then I move that that resolution be reconsidered.

19 Indiana, Remaining Republican Legislature Ratifies Amendment May 14, 1869*

A message from the Senate now announced that that body had passed a joint resolution [S. 18] accepting and ratifying a certain amendment to the Constitution of the United States, in which the concurrence of the House is respectfully requested. Mr. OSBORN. Mr. Speaker. The SPEAKER. The gentleman from Putnam will give way for the Chair to lay before the House a message from the Governor. A message from the Governor, dated May 14, 1869, was read by the Clerk, announcing the resignation of certain members of the House of Representatives. Mr. OSBORN. I move that the House take up the consideration of the Senate joint resolution No. 18, ratifying and accepting a certain amendment to the Constitution of the United States, and thereupon I move the previous question. ... The SPEAKER. The Chair will hold that the motion of the gentleman from Putnam is in order, and also that the demand for a call of the House is in order. The call proceeded, and the record discovered 56 members present—Mr. Johnson, of Park, insisting that the names of the resigned members on the roll not be called, and the Speaker making the order accordingly. ... Mr. COFFROTH . . . now submitted his point of order, that there is no quorum present. According to all precedent, the Constitution and laws of the State, two-­ thirds of the members elected to either branch of the General Assembly are required to make a quorum; and no legislative act can be done without a quorum. Therefore, inasmuch as the call of the House has developed * Brevier Legislative Reports of the General Assembly of the State of Indiana, Special Session of 1869 (South Bend, 1869), 11:​ 239–44.

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only fifty-­six members present—eleven members less than a quorum of sixty-­seven—the House can not do any legislative act; can not consider and act authoritatively and legally on this question. The SPEAKER. In reply to the gentleman; the Chair has repeatedly decided that for the purposes of legislation it requires sixty-­seven members to constitute a quorum for legislative business of any ordinary character—that being required by the Constitution of the State. But on the question presented here to-­day, there is a great diversity of opinion. The Chair, of course, entertains its own views. But there is sufficient doubt in regard to this matter—which is, indeed, as I conceive, a matter of very great importance—to warrant the Chair in holding that on the question of ratifying an amendment to the Constitution of the United States—in the absence of any precedent in the legislation, or in the Constitution of our State, in the absence of any law of Congress as to what shall constitute a quorum for the purpose of ratifying a Constitutional Amendment—the question never can be decided and settled unless it is decided in this way. It is a question which the Courts will have to decide. Then, notwithstanding the Chair entertains its own peculiar notions of the matter, it will decide and hold, that the motion to take up the joint resolution from the Senate is in order. Mr. COFFROTH. I appeal from the decision of the Chair. ... Mr. OSBORN. I move to lay the appeal of the gentleman from Huntington [Mr. COFFROTH] on the table ... Mr. COFFROTH demanded the yeas and nays on the motion to lay the appeal on the table, and the vote resulted—yeas 54; nays, 3. ... So the appeal was laid upon the table, and the question recurred on seconding the demand for the previous question. The previous question was seconded, and the main question ordered, viz: Shall the joint resolution for ratification of the fifteenth amendment proposed by Congress to the Constitution of the United States pass?—the vote resulting—yeas 54, nays 0— Mr. COFFROTH, when his name was called, rose to the privilege of explanation, and said: When I became a member of this House, I took an oath to support the Constitution of the United States and of the State of Indiana; and the Constitution of the State of Indiana requires and prescribes that sixty-­seven members here

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shall constitute a quorum to do business; and because the call of the House has determined that there are fifty-­six members present—eleven less than a quorum of sixty-­seven members—and I regard this proceeding in violation of the State Constitution, I decline to vote. ... Mr. PIERCE, of Porter, explained his vote, and said: . . . I have never had any doubt, sir, as to our legal right to pass this resolution, and to perform any other legislative act while a majority of the members are present. This is the only safe ground to occupy; it is the only interpretation of our Constitution which is in harmony with sound reason and common sense. To say that a minority of the General Assembly can resign and thereby defeat the will of the people as expressed through their representatives, is so dangerous a heresy, a doctrine so thoroughly fraught with disaster to the State, that I wonder the proposition should be entertained for a moment. ... Whereupon, the SPEAKER announced the result and declared the joint resolution adopted by the House of Representatives.

by a clear majority of votes, although two-­thirds of one branch were not present at the time, as the State Constitution specifies. The famous case of Bright and Fitch is cited in support of this conclusion, as there a joint convention, ordered by only one House, and not by both, as the Constitution requires, was declared by the United States Senate to be legally sufficient, inasmuch as a clear majority of the two Houses took part in the election. That decision, however, made by the Democratic Senate in its worst days, has never been heretofore regarded as good authority in Republican quarters, and it is very questionable whether it can be, or ought to be, taken as a precedent for the case before us. The latter had better be allowed to stand on its own merits, whatever they may be. As strongly as we desire to see the Fifteenth Amendment become the law of the land, we have no wish to see it succeed through any other than fair and unquestionably legal methods. The Constitution is the last instrument to be amended unconstitutionally. Both parties in the Indiana Legislature, in their endeavor to play a sharp game under the peculiar circumstances of their positions, trenched rather close upon the line of propriety—to state the matter in the mildest terms. The real question at issue ought alone to be regarded. The justification cited above is entitled to the most dispassionate consideration, and we have no doubt it will receive it, as well as an honest decision, at the hands of Congress.

20 “The Amendment in Indiana,” Boston Daily Journal May 20, 1869, p. 4

We have already given the material facts respecting the anomalous ratification of the Fifteenth Amendment by the Legislature of Indiana. It is said that the course of Republican members has the approval of Senator O. P. Morton, whose clear-­headed judgment of constitutional matters is entitled to profound respect. The grounds of opinion are not known, but it is presumed he is represented by the Republican organ at the capital of Indiana, which has discussed the question quite elaborately. The substance of its views is that while the Constitution of Indiana binds the Legislature to proceed strictly according to its terms in everything relating solely to State affairs, yet in its proceedings affecting the General Government, Congress may decide whether it will accept the substance of legal action and neglect mere matters of form. Thus, it is claimed, that the Indiana Legislature, in both branches, did ratify the Fifteenth Amendment

21 “Wendell Phillips Advocates It—Ratification by Rhode Island,” New York Times May 30, 1869, p. 3

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Wendell Phillips addressed the people of Newport, R.I., and more especially the members of the State Legislature, on Wednesday evening last, upon the proposed Fifteenth Amendment of the Constitution. Governor Padelford presided. Mr. Phillips said: “If you ask me why I came down here to-­night, at this season, in the brief business period of the week, I answer that as a citizen of a great nation, as a laborer

B. Ratification, doc. 21

for more than thirty years in one great issue, one great problem which God has set us, I had a profound interest in the action of Rhode Island—a longing desire that that action should give no uncertain sound; that it should neither be equivocal nor delayed. That, as a member of the New England sisterhood, you should lift up a banner that would lead the nation itself in the right path. I came to press upon your attention the duty and responsibility that rests upon us to-­day. Perhaps this amendment, if passed, will add a thousand men, foreigners and others, to the list of voters in the State. This, you say, will give Rhode Island to the Democratic Party. Now, looking at your State, if it is admitted that the passage of this amendment will endanger giving the State to the Democratic Party, suppose you run that risk to-­ morrow; in the very face of the consideration that you risk the State, I would advise you to ratify. As I read the signs of the times, I have not a moral doubt that this amendment will go into the Constitution of the United States. The Congress of Washington understands its necessity, the Republican Party understands its necessity, the practical good sense of the Republican Party, as represented by the President, comprehends its necessity. We have twenty-­one States; if you count Indiana, twenty-­two; and if Congress declares according to the precedent in Bright’s case, they will accept Indiana. Vermont and New-­Hampshire are certain, and that is twenty-­four, and said a Senator who represents the sentiment of the United States Senate upon this matter, neither Georgia, Mississippi, Virginia or Texas shall ever set foot inside of the Capital until they bring the Fifteenth Amendment in their right hands. That gives us the amendment without the aid of one of the possible States. Then, suppose Rhode Island, in 1870, stands before her adopted citizens and says, “You are voters, not because we granted it to you, but because we were coerced into it.” In which case would the Republican Party be likely to draw a large proportion of the new votes to itself ? Shall they come in alien and hostile, or shall they come in clasping your right hand? But granting that it does this, but I don’t believe a word of it, that this Fifteenth Amendment touches you as to your admitting foreigners to vote. It says “no man shall be deprived or denied or abridged from voting on account of race, color, or previous condition of servitude.” What does that mean? If that only said “no man shall be denied on account of color or previous condition of servitude,” is there a man who doubts that Rhode Island would ratify the amendment without de-

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bate? You have given the vote to the negro for a dozen years, and you would have no objection to a guarantee put in the Constitution of the United States. That little word “race”—you think you will be obliged to change your law in regard to foreigners voting. I wish it did, but I don’t believe it does. You don’t exclude a man because he belongs to the Latin or Celtic race. You do it on the ground of the locality of his birth-­place. Nativity is not race. A man goes to France and has a child, and that child has a child, and that grand-­child is excluded from voting. He is not denied because of race. His race has not changed. The meaning of race is blood. If this child could trace back his lineage to General Greene, he would forfeit his rights under your law. The negro has the same birthplace as Beauregard, but he was born unfortunately of a different race. Race is the root— radix. You trace back their lineage to a different ethnological tree, and not to a different branch of the same national geographical tree. Your law is a geographical one; it is not an ethnological one. It seems that Rhode Island hesitates to ratify on account of these four letters, ­r—a—c—e. She is being frightened with a shadow. With the Fourteenth Amendment, I believe I could drive a coach and six horses through your law, but not with the Fifteenth, for the very reason that the terms of the amendment preclude it; the whole logic of the war forbids it. In my sober soul, I believe that the Fifteenth Amendment adds not one of these voters to your list. We stand here, gentlemen, with the fate of the Republican Party hanging on the question. Will you not hold up the banner, that New England may be one, and set an example to the Union—put a weight in the scales, and let the nation see the other end kick the beam? Let Rhode Island vote and put this quarrel under our feet. This State set the example of forgetting the difference of sects; this State led civilization, and am I asking too much when I crave that the same body shall lead the Union to-­day; not upholding that narrow-­headed set that hold to the superiority of one race over another. I am asking you not only to take the place that belongs to you among the States, but by the great events of history, by the call of the President, and by the necessity of the future. Oh, let us have New-­England a unit—the brain of the nation—and the heart will beat right and the limbs will obey the word, and we shall go forward without check or resistance, a model to the nation and a hope to the world.”

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22 Virginia, Gov. Gilbert Walker’s Message to the Legislature, Ratification of the Fourteenth and Fifteenth Amendments October 5 and 8, 1869

Governor’s Message, October 5, 1869 *

Gentlemen of the Senate and House of Representatives: The constitution lately adopted by the people of this commonwealth imposes upon the governor the duty “to communicate to the general assembly, at every session, the condition of the commonwealth,” and to “recommend to their consideration such measures as he may deem expedient.” As your powers and duties at the present session, however, have been construed to be confined to the “limited and qualified purposes requisite to reconstruction,” it will be necessary for me, on this occasion, to recommend for your consideration such measures only as are, or seem to be, necessary to prepare the state for readmission to representation in the Congress of the United States. The 5th section of the act of congress of March 2, 1867, among other things, declares “That when said state, by a vote of its legislature elected under said constitution, shall have adopted the amendment to the constitution of the United States proposed by the thirty-­ninth congress, and known as Article Fourteen, and when said article shall have become a part of the Constitution of the United States, said state shall be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom, on their taking the oath prescribed by law.” This law is still in full force, and Virginia was named in the preamble to the act as one of the states to which it was to be applied. It will be necessary, therefore, for you to comply with the condition therein named, although Article Fourteen has already been ratified by the requisite number of states, and has been officially proclaimed as a part of the constitution of the United States. A copy of the resolution of congress proposing Article Fourteen to the legislatures of the several states is herewith submitted. In March last, the secretary of state of the United * Virginia Senate Journal 17 (1869) (Oct. 7, 1869).

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States transmitted to the governor of this commonwealth an official copy of a resolution of Congress, proposing to the legislatures of the several states a fifteenth Article to the constitution of the United States, a copy of which is herewith submitted. ... Our late election was authorized by an act of Congress approved April 10th, 1869, the 6th section of which is in these words: “That before the states of Virginia, Mississippi and Texas shall be admitted to representation in congress, their several legislatures, which may be hereafter lawfully organized, shall ratify the Fifteenth Article, which has been proposed by Congress to the several states as an amendment to the constitution of the United States.” While by this law the ratification by the general assembly of the proposed Fifteenth Amendment to the constitution of the United States is made a condition precedent to the admission of the state to representation in the federal congress, I cannot doubt that you would cheerfully ratify the amendment, even were no such condition imposed. The people of this commonwealth at the late election, by an overwhelming majority, accepted and adopted the principle sought to be incorporated into the federal constitution by this amendment, viz: the civil and political equality of all men before the law. The well known honor and integrity of the people of Virginia, forbid even the supposition that they would fail to faithfully adhere to and maintain, while necessary and possible, any principle to which they had yielded their adherence. Virginia always fulfils, in the most ample good faith, all her pledges. But our people, by this action, have not only placed the political rights of all our citizens upon a firm and enduring basis—they have accomplished much more. They have increased prospectively the power and influence of our state in the national councils, by broadening the basis of representation. Under the Fourteenth Article of the constitution of the United States, when in any state the right of suffrage is abridged, except for crime, the basis of representation must be reduced in a corresponding proportion. Although we have wisely settled this question, so far as our state is concerned, and banished forever from the theatre of state politics this prolific source of irritation and discord, there is a reasonable ground for apprehension that, if the Fifteenth Amendment should fail of adoption as a part of the federal constitution, our state may be flooded

B. Ratification, doc. 23

with and the control thereof pass into the hands of a class of emigrants from the great states lying upon or near our borders, who will seek the enjoyment of these civil and political rights accorded to them here, but denied them there. Self-­protection, therefore, demands that we do our part towards securing the ratification of that amendment; our interests require it; our faith is pledged to it. ... Respectfully, Gilbert C. Walker

23 Elizabeth Cady Stanton, “All Wise Women Should Oppose the Fifteenth Amendment,” Revolution (New York, NY) October 21, 1869, p. 248†

All wise women should oppose the Fifteenth Amendment for two reasons: 1st. Because it is invidious to their sex. Look at it from what point you will, and in every aspect, it reflects the old idea of women’s inferiority, her subject condition. And yet the one need to secure an onward step in civilization is a new dignity and self-­respect in women themselves. No one can think that the pending proposition of “manhood suffrage” exalts women, either in her own eyes or those of the man by her side, but it does degrade her practically, just as black men were more degraded when all other men were enfranchised. 2d. We should oppose the measure, because men have no right to pass it without our consent. When it is proposed to change the constitution or fundamental law of a state or nation, all the people have a right to say what that change shall be. Judge Beach Lawrence, in a letter to Charles Sumner, said: “In the revision of a state convention, the state is for the time being resolved into its original elements, and all the people should have a voice in framing the fundamental laws that are to govern them.” And this is the opinion of many other able men. ... If the poorer classes of ignorant men had so much consideration in amending a state constitution, how comes it that women of property and education, in every way peers of their rulers, should not have a vote, when the fundamental law of every State in the Union is to be so changed as to leave their sex the only serfs and subjects; to consummate their degradation to all the men of the nation, black as well as white, foreign and native, the washed and the unwashed, the learned and the unlearned, the virtuous and the vicious, the drunk and the sober, in fine, to everything that calls it-

Senate, October 8, 1869 *

No. 1, a bill to ratify the joint resolution of Congress passed June 16th, 1866, proposing an amendment to the constitution of the United States of America, was taken up, read the first and ordered to be read a second time; and on motion of Mr. Herndon (two-­thirds concurring) was read the second time, and was ordered to be engrossed and read a third time; and being forthwith engrossed, was, on his further motion, (two-­thirds concurring,) read the third time; and the question on the passage of the bill was put and determined in the affirmative—ayes 36; noes 4. ... A message was received from the House of Delegates by Mr. Budd, who informed the senate that that house had passed the said bill. The following is the second bill reported from the selected committee on the governor’s message: No. 2, A bill to ratify the joint resolution of Congress passed February 27th, 1869, proposing an amendment to the constitution of the United States. ... A message was received from the House of Delegates by Mr. Bell, who informed the Senate that that House had passed a bill entitled an act to ratify the joint resolution of congress, passed February 27th, 1869, proposing an amendment to the constitution of the United States, (No. 2,) which was taken up, read the first and second times, and, on motion of Mr. Herndon, (the rules being suspended therefore,) was read the third time, when, Mr. Lyons made an unsuccessful motion to lay the bill on the table. The question on the passage of the said bill was put and determined in the affirmative—ayes 40; noes 2. * Virginia Senate Journal 26 (1869).

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† [Attribution in Elizabeth Cady Stanton, Susan B. Anthony, and Matilda Joslyn Gage, eds., History of Woman Suffrage, 1861– 1876 (Rochester, NY: Fowler and Wells, 1881; 1889), 2:333. —Ed.]

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self a man? Such is the Fifteenth Amendment. We insist that the several Legislatures have no right to ratify this proposition of “manhood suffrage” without the consent of the women of their respective states. Should not the rights of native-­ born American women of property and education, who possess all the requisites for good citizens, be as sacred in the eyes of their sires and sons as are those of ignorant natives and foreigners?

the unanswerable claim of seeking only to enjoy the blessing in common with all other citizens, signalize their victory by undertaking to wrest the same blessing from others whose generous aid has contributed greatly to their success? Honor and justice make solemn protest! Can the liberal spirit of the age, and the Republic’s fundamental idea of equality before the law, be violated, and the vested privileges of 40,000 citizens ruthlessly torn from them, without a shock threatening to public interest, even if it do not endanger convulsion? Reason makes denial. Then, under the dictates of public intelligence, honor, justice and reason, the colored man’s suffrage may be safely reckoned a fixed fact in Tennessee. What, then, are the purposes, so far as this race is concerned, of the proposed amendment to the Constitution of the United States? Not to confer special immunities, or compel any social equality of the colored people against the will and consent of others, but only to prevent them being deprived of privileges against their own; to afford them the rights of citizenship and equality before the law in every part of the land; to simply extend and secure to them the same privileges in Ohio or Massachusetts which they enjoy in Tennessee. Is it claimed their degradation would render them, as citizens, dangerous to the public interest? May it not be trenchantly asked, if the evil will not be aggravated rather than diminished, by adding degradation and denying opportunity of improvement. Is it charged, by their ignorance they are unentitled to a voice in selection of those who make the laws they must equally obey, and for violation of which they are held to equal liability? Does not this strike at the whole idea of reciprocal obligations and rights fundamental to this representative Republic? I know it is, with vehemence, urged, that colored suffrage and equality in citizenship are repugnant to the American people, and that it is even opposed by a large majority of the Northern States. But I submit to candor, if this is not the cry of a party, rather than the voice of the country, spoken through its lawfully constituted authorities. Aye, and of a party which, let it be deliberately pondered, has little cause, for its honor, to crave a balance sheet of advantages and disasters its counsels have brought to the people of this and other Southern States. Impartial justice will demand the proof of charges which may be brought to degrade a race, the fortunes of which, without agency on its part, are iden-

24 Tennessee, Gov. Dewitt Senter’s Message to the Legislature, Committee Reports, Rejection of the Fifteenth Amendment

October 13, November 15 and 16, 1869 Governor’s Message, October 13, 1869 *

To the General Assembly of the State of Tennessee: ... For all human ken to the contrary, it may have been ordained, in the plan of over-­ruling Providence, that in the fullness of time, this nation should honor itself by vindicating, in the conformity of practice with theory, that first great “self evident truth,” uttered in its immortal declaration of independence—“that all men are created equal.” Be this as it may, it was a result of the war, that the sun-­light which fell upon the soil of this American Republic, shone on none a slave; and events since, have, under the laws of this State, clothed a race, raised from servitude to freedom, with all the rights and privileges of citizens within its limits. With the appeal of our State interest for quiet and rest from political turmoil; with the ominous memory that violent political agitations connected with this race, have proven the evils of Pandora’s box to the people of the South; is there a party with us rash enough to propose destruction or disturbance of these privileges? The popular intelligence would condemn it! Will a people who have just won their own enfranchisement under

* Appendix to the Journal of the Senate for the State of Tennessee 5, 8–12 (1869–70).

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tified with this land; nor will be satisfied with less than the demonstration of experience. If reasons of expediency need be added to those of principle, then if the objections urged to colored citizenship be founded in truth, may not those who are immediately charged with the interests of States where it exists, rationally and rightly protest against concentration of the evil upon them, to the exemption of States where it does not exist? If the intelligence of the race be insufficient to qualify for citizenship, it will yet be found enough to prevent change of domicil, from where the advantages of citizenship are enjoyed to where they are denied. Further, the Congress of the United States has, by decided majority, formally proposed the amendment in question as a part of the policy of the Government; and, I am impressed it would, under existing conditions, be peculiarly fortunate that this State should accept and ratify it. First, under the conceived obligations of many of the Northern people, if not its masses, that they should, for reasons unnecessary to dwell upon, secure the colored population against apprehended dangers; much may depend upon the action of Tennessee, as to the time and conditions, for the restoration of certain other Southern States and their people to their former respective relations with the general Government, which, identified with her in past sufferings, yet have not been equally fortunate in regaining their advantages as States in the Union. Again, there are many worthy men of Tennessee who labor under the disabilities imposed by Congress, and which consequently, our State powers are inadequate to reach. Joined to all this, the State itself, in its exhausted condition, has most serious complications with the General Government, in its railroad and other important material interests. The adoption of the amendment by this Legislature, more thoroughly representative of her whole people than any fortune has afforded since the war, would at once tend to inspire confidence with the Northern people, create a friendly interest in Congress, and perhaps win the strong helping hand of the General Government in our many wants. Profoundly impressed with these considerations, and by the emphatic declaration of the People of Tennessee at their last election for manhood equality before the law and in political privileges, I would be recreant to my own conscience and to my convictions of the public interests, did I fail to earnestly, yet respectfully,

recommend the proposed amendment for ratification by your honorable body.

House, November 15, 1869 *

Mr. Speaker: The Committee on Federal Relations, to whom was referred House joint resolution No. 24, ratifying the 15th amendment to the Constitution of the United States, and House resolution No. 36, referring to that portion of the Governor’s message recommending the ratification of said amendment, have carefully considered the same; and a majority of the committee have instructed me to recommend the rejection of House joint resolution No. 24, ratifying said 15th amendment, for, among many, the following reasons, to-­wit: 1st. There is no necessity for it; the States are fully empowered to extend suffrage to any and all, this power is fully recognized by the Constitution of the United States, 1st sec. 2nd clause. 2nd. Because it was passed and submitted at a time when the public mind was not in a condition to weigh and consider it with the calmness and deliberation its importance required; 3rd. Because its ratification is sought by the least popular method known to the Constitution of the United States (Constitution of the United States, article 5,) while it proposes to effect a great radical change in the nature and principles of our form of government; 4th. It is class legislation of the most odious character. It singles out the colored races as its especial wards and favorites, and upon them it confers its immunity, bestows its bounty, confines its affections, and seals its love; 5th. It is inexpedient, because it will become a bone of contention in all future time, and the subject of ceaseless agitation in the halls of Congress and before the people. One Congress will think one mode of legislation appropriate, and another Congress will think a different mode appropriate to enforce said 15th amendment; 6th. It leads inevitably to a concession of all sovereign power to the legislative branch of the Federal Government, and consequently is destructive of the rights of the States, and tends to consolidation and despotism. 7th. It is submitted for the voluntary ratification of the Legislatures of some of the States, while its ratification by others is compelled by military power; * Tennessee House Journal 185–88 (1869–70).

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8th. Its passage by the Congress of the United States, and it submission to the Legislatures of the different States, is in violation of the 5th article of the Constitution it proposes to amend. All of which is respectfully submitted, E. A. JAMES, Chairman of Committee on Federal Relations.

pone its adoption, and continue the agitation of the subject. Again: The rejection of the resolution will manifest an unmistakable desire to disfranchise the colored voters of the State. The undersigned is aware that any such purpose is very generally disclaimed, and it is said that in any event the colored man will continue a voter in Tennessee. The signs of the times do not so indicate. His right to vote is secured by what is popularly termed the franchise law. The fate of that law is sealed. It will be abolished, and with it will go what we call colored suffrage. We are to have a Constitutional Convention of delegates elected by a constituency composed of at least three to one of whites. The main purpose of that Convention is to abolish the present suffrage laws. This being done, the Constitution of 1834 is restored, and the colored man is at once disfranchised. Will the Convention deliberately reinvest him with the right of suffrage? The indications, habits, and prejudices of our people prohibit it. Will it be done from motives of conciliation and concessions? And a free people, acting in their sovereign capacity in the making of fundamental laws for themselves and their posterity, are not apt to surrender what they regard as principle for mere reasons of policy. Assuming that the rejection of this resolution exhibits a repugnance on the part of this General Assembly to colored suffrage, and that a Constitutional Convention will soon assemble to revise our suffrage laws, it may be safely concluded that if the Convention shall carry out the will of their constituencies, then the days of colored suffrage are numbered in Tennessee. The undersigned does not propose to discuss the subject of colored suffrage in the abstract. He only means to call attention to the fact that enough has already transpired to show that a large majority of the States of the Union are in favor of it, and that its rejection now will place the State in antagonism to that majority, and only serve to continue and protract an agitation that must prove injurious to the State. The colored man is already enfranchised, and the question now is, whether we shall disfranchise him. It is urged that if the 15th amendment shall be adopted, the Chinese and other barbarous races will flock to our shores, and control our elections. The undersigned is not alarmed at this contingency. This is one of the coming events, which has not yet even

Mr. Baker submitted the following minority report upon House joint resolution No. 24: Mr. Speaker: The undersigned, though standing alone in the Committee, begs leave to present a minority report, and to earnestly recommend the adoption of the resolution ratifying the proposed amendment to the Constitution of the United States. In the opinion of the undersigned, there never has been any sufficient reason why the rights of suffrage, the broadest, grandest, and most sacred of all the political rights of the American citizen, should be left to the whim and caprice of local legislation. It should be secured and regulated by the supreme law of the Republic; where it may not be disturbed by local prejudices and popular agitation. This, the 15th amendment, to a great extent proposes to do, by prohibiting the disfranchisement of any citizen either by the General or State Governments, on account of race or color. It is a step, and, indeed, a stride in the direction of UNIVERSAL MANHOOD SUFFRAGE, which is the point the progressive ideas of the times are rapidly approaching. We may oppose the progress, we may check it, we may protract agitation, and disturb the course of events, but nothing more. It is said “Revolutions never go backwards,” and this is certainly true, where popular liberty is the object of the revolution. Sooner or later, every citizen who shall obey the laws, and contribute to the support of the Government, will be eligible to office, and entitled to vote in all elections. Aside from the great principle that underlies the proposed amendment, there are political reasons for its adoption. In Tennessee we want harmony and repose. A large majority of the States have already ratified the amendment. Others, it is known, will do so. If it is not finally ratified, it will be because only a little less than three-­fourths of the States have adopted it. Already a majority of the American people have declared its adoption to be their will. Its failure, for the want of a few States, will only post580

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cast its shadow before. While in some sense it is proper that we should legislate for posterity, yet it may be that posterity may be able to legislate for themselves in some cases. Let the Chinese come; let them cultivate our soil, and develop our mines. Their gods need not be our God. Let our posterity teach them to cast away their sticks and stones, and worship the true and living God. Let them see and learn the great principles of republican liberty, and let them return, if they choose, to propagate these grand principles and this Divine religion throughout the Celestial Empire. For these reasons, hastily prepared, the undersigned respectfully recommends the adoption of the resolution. JOSEPH M. BAKER , Representative of Hancock County.

That the Governor of the State of Georgia be, and he is hereby, authorized and directed forthwith by proclamation to summon all persons elected to the General Assembly of said State, as appears by the proclamation of George G. Meade, the general commanding the military district including the State of Georgia, dated June 25, 1868, to appear on some day certain to be named in said proclamation, at Atlanta, in said State; and thereupon the said General Assembly of said State shall proceed to perfect its organization, in conformity with the Constitution and laws of the United States, according to the provisions of this act. Sec. 2. And be it further enacted, That when the members so elected to said senate and house of representatives shall be convened as aforesaid each and every member and each and every person claiming to be elected as a member of said senate or house of representatives shall, in addition to taking the oath or oaths required by the constitution of Georgia, also take and subscribe and file in the office of the secretary of state of the State of Georgia one of the following oaths or affirmations, namely: “I do solemnly swear (or affirm, as the case may be,) that I have never held the office or exercised the duties of a Senator or Representative in Congress, nor been a member of the Legislature of any State of the United States, nor held any civil office created by law for the administration of any general law of a State, or for the administration of justice in any State or under the laws of the United States, nor held any office in the military or naval service of the United States and thereafter engaged in insurrection or rebellion against the United States, or gave aid or comfort to its enemies, or rendered voluntary or involuntary support or aid to any insurrection or rebellion against the United States, nor held any office under or given any support to any government of any kind organized or acting in hostility to the United States, or levying war against the United States. So help me God, (or on the pains and penalties of perjury, as the case may be.”) ... Sec. 3. And be it further enacted, That if any person claiming to be elected to said senate or house of representatives, as aforesaid, shall falsely take either of said oaths or affirmations above provided he shall be deemed guilty of perjury, and shall suffer the

House, November 16, 1869 *

The consideration of the majority and minority reports on House joint resolution No. 24† Was taken up, and the resolution was rejected. [Ayes 12, noes 57]‡

25 US Congress, The “Georgia Bill,” Debate and Passage December 16, 20, and 21, 1869 Senate, December 16, 1869 §

Mr. MORTON. I move that the Senate proceed to the consideration of Senate bill No. 281, to perfect the reconstruction of the State of Georgia. The motion was agreed to. ... The Secretary read the bill as proposed to be amended by the Committee on the Judiciary, as follows: * Tennessee House Journal 192 (1869–70). † [The resolution recommended passage of the amendment. —Ed.] ‡ [In February 1870, the Tennessee House and Senate passed a second resolution officially rejecting the amendment. See Tennessee Senate Journal 143 (1869–70) (Feb. 24, 1870). —Ed.] § Cong. Globe, 41st Cong., 2nd Sess., 165–66 (Dec. 16, 1869). 581

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pains and penalties thereof; and may be tried, convicted, and punished therefor by the circuit court of the United States for the district of Georgia in which district said crime was committed; in the jurisdiction of said court shall be sole and exclusive for the purpose aforesaid. ... Sec. 6. And be it further enacted, That it is hereby declared that the exclusion of any person or persons elected as aforesaid, and being otherwise qualified, from participation in the proceedings of said senate or house of representatives, upon the ground of race, color, or previous condition of servitude, would be illegal and revolutionary, and is hereby prohibited. Sec. 7. And be it further enacted, That upon the application of the Governor of Georgia the President of the United States shall employ such military or naval forces of the United States as may be necessary to enforce and execute the provisions of this act. Sec. 8. And be it further enacted, That the Legislature of Georgia shall be regarded as provisional only until the further action of Congress.

stand it before they get in. But I think the amendment is pernicious in this respect: it will be claimed hereafter, and will be the subject of much discussion, that these Southern States have not voluntarily ratified that amendment of the Constitution. I do not say that that claim is well founded; I do not believe it is; but we shall hear it, and I am opposed to any amendment of this bill which shall lead manifestly to the discussion of these troublesome subjects hereafter. They will say that they were held by military power; they will say that Congress dictated to them the terms upon which they were to come into the Union; that they were practically and substantially in duress and are not bound by the vote of adoption they have passed. Now I am simply objecting to this because I am opposed to making up a bill of exceptions upon which some future Jeff. Davis shall move for a new trial. ... Mr. DRAKE. I did not know but that the question of whether these constitutional amendments were ratified and was in some future day to be brought for decision before the Supreme Court of the United States, where it might be denied that they had been constitutionally adopted and the plea of duress put in by the State of Georgia to show that she had been coerced into the ratification, and therefore that her ratification was void. Unless this subject is in that way to go before some outside tribunal which is regarded by the Committee on the Judiciary of the Senate as having a higher power than that of Congress, I do not see that we need to have any particular apprehension about the matter being put in the shape proposed by the Senator from Indiana. If it is to come before Congress, then it will probably make no difference whether Georgia ratifies these amendments under the coercion of this section or not. Mr. President, I want that these rebel States should be made to feel the power of this nation through its Congress. I want that the rebels of the South, as much rebels probably in heart to-­day as they ever were, may be made to feel that there is a power here that can hold them to their places under this Government. I wish especially that the infamy of that Georgia Legislature should be wiped out by this kind of retribution. . . . I want it to be understood throughout the United States that there is a Congress of the United States that wields the sovereignty of this nation, and that that sovereignty can neither be arrested by States nor by the Supreme Court of the United States.

... Mr. MORTON. I ask the Secretary to read the amendment that I have submitted. The Secretary read the amendment, which was to strike out the eighth section and in lieu thereof to insert the following: That the Legislature shall be provisional only, and until after it has ratified the fourteenth and fifteenth amendments to the Constitution of the United States, and Senators and Representatives in Congress from the State of Georgia have been admitted to their seats.

... Mr. CARPENTER. Mr. President, that provision requiring the Legislature to adopt the fifteenth amendment to the Constitution was omitted from the bill by the committee, or a majority of the committee, purposely and not by accident. My objection personally to the Senator’s amendment is twofold; first, I think it wholly unnecessary. If the people of Georgia do not understand already that they will not be admitted into the Union until the fifteenth amendment to the Constitution is adopted by them, they certainly will under-

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House, December 20, 1869 *

The House then resumed the consideration of Senate bill No. 281, to promote the reconstruction of the State of Georgia. ... Mr. BUTLER, of Massachusetts ... The eighth section provides: That the legislature shall ratify the fifteenth amendment proposed to the Constitution of the United States before Senators and Representatives from Georgia are admitted to their seats.

This provision is objected to by some because it is feared the Democratic Party will allege that coercion was brought to bear upon the State to pass the amendment, and that the ratification given under such circumstances will be invalid. I wish to call the attention of the House a moment to that, and in so doing I wish to remark that in the case of almost every admission of a new State into the Union before the war, as in the cases of Michigan, Missouri, Texas, and I might almost say of every new State, conditions precedent were fixed by the Congress of the United States. Certain things were to be done or certain things were omitted to be done by a State before its admission into the Union could take place, and it was never until these latter days that we heard for the first time that all those conditions precedent were null and void because such congressional action was a coercion of a State. Now, sir, such is the bill before you. I have only touched it very generally upon its provisions. For one I have no more doubt of the power of Congress to set this great wrong done in Georgia right than I have in the power of Congress to legislate upon any other subject relating to the general welfare of the United States. We admitted this State upon the implied condition that it should have a government to carry out the laws of the United States in good earnest and good faith. On the contrary, the State has undertaken to fly in the face of every just and proper law of the United States. We have now the right to resume the power which we gave when we allowed the State to emerge from rebellion and be admitted as a part of the Union, and to require such further conditions and restrictions as to its conduct as wrongdoing on its part has made necessary. * Cong. Globe, 41st Cong., 2nd Sess., 246, 249, 253 (Dec. 20, 1869).

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... Mr. BECK. Mr. Speaker, my colleagues on the Committee on Reconstruction who entertain the same views that I do have requested that I should open the debate on our side, which I will now proceed to do as briefly as possible. And in the first place allow me to say that this House in its action in reference to Georgia occupies a different position from what it has ever done before in regard to any of the States undergoing the process of reconstruction. I am not going to say one word against the reconstruction laws. Whether I believe them to be constitutional or unconstitutional, and my opinion has been frequently and freely expressed on this floor, they have been passed upon by this House and acquiesced in by the State of Georgia. What I do propose to say, and what I hope the House will not fail to observe, is that the State of Georgia has complied with all the reconstruction acts. This House has solemnly so decided. Therefore, when she did comply with the reconstruction acts of Congress, and was accorded representation upon this floor, she became to all intents and purposes a sovereign State of this Union, coequal with all the others, just as fully as the State of New York, the State of Ohio, or any other State whose status in this day no one ­questions. ... I have thus run over the facts on this subject imperfectly and hurriedly, it is true. The great question comes back to us at last, what power, what right, what authority have we to act in this matter? We have none, except that of mere brute force; because when Georgia was reconstructed and her Representatives took their seats on this floor she was as fully a restored State in the American Union, even according to the theory of the dominant party, as is the State of New York; and if you turn her out now because of something she has done, not in violation of your laws, for you have never claimed that, but because she has done something which you think or profess to think is in violation of your construction of her own constitution, then you can turn out New York, or Ohio, or any other State of this Union; and the very moment this Congress undertakes to do that there is an end of Republican liberty and law; ... But it is avowed that this fifteenth amendment cannot be adopted unless Georgia votes for it. ... I tell this House, and time will verify the statement I am about to make, that the States of the Union never

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will admit that a constitutional amendment adopted by force, as this avowedly will be if adopted by this Legislature of Georgia under the order of Congress, is to be regarded as valid by them. You might just as well ratify that fifteenth amendment for Georgia in this Hall as to do it or say that she shall be held by the throat until she does do it. Congress has a right to propose constitutional amendments; this is all it has the right to do with reference to such amendments. The States of the Union through their State Legislatures must decide without force, without fraud, without coercion, without duress, whether they will ratify or reject such proposed amendments. And does any man in this House pretend that the Legislature of Georgia under a bill like this is free to ratify or reject so that her action shall bind the State of New York, or Ohio, or Pennsylvania? ... I believe—indeed I hope—that the great States of New York, Pennsylvania, and Ohio, the great central belt upon which we must rely because of their power and their position, will, if this amendment is forced upon them in this way by coercion and duress upon the States of the South, refuse to change their State constitutions in obedience to this mandate from this Congress, and that they will appeal to the courts of the country to sustain them in saying that it never did receive the sanction of three fourths of the State Legislatures. I believe there is not a court in the country that will not sustain them in that position.

with the utterance of the Attorney General of the United States in relation to Virginia, upon the construction of all your reconstruction acts; and it is in conflict with all the past legislation of the Congress of the United States and of the interpretation of your Constitution. For this reason, I ask that the bill may be postponed until the third Wednesday of January next. If I should utter no further word, if there be truth in what I have said, the majority of this House should postpone it. ... The bill, sir, is not worthy of a moment’s consideration in the House of Representatives of the people, and for one, no matter what party dictation may say, I stand here to declare that I shall record my vote against it. It does not become the Representatives of the people to be dragooned in any such manner into legislation which touches not merely the rights of the people of Georgia, but touches the rights of all the people of this Republic. ... It is said that this action is only in order to secure the ratification of the fifteenth amendment. Allow me to say that there is in my judgment nothing which human ingenuity could contrive so likely to lead to the defeat of that great, just, and righteous measure as the enactment of such a law as this. Why, sir, what is the fact? The house of representatives in Georgia ratified that amendment before its adjournment. That ratification was postponed in the senate. By whom? By the direct intervention and votes of our own friends, by Governor Bullock and others, until January next. Gentlemen say if they meet in January they will not complete what they have begun. It has been finished in the house and only suspended in the senate by the vote of our own friends. Do gentlemen say they will not trust our own friends, and especially our friends who have followed the advice of Governor Bullock? Let us try, and if they refuse after their pledge, as I claim to have been given by the joint resolution whatever may have been said to the contrary, to obey the decision of the supreme judiciary of their own State to reinstate the colored citizens,† then we will have additional reason for intervening in the affairs of Georgia. ... I have remarked the act of 1867 has made the only limitation on the qualification of members of the Legis-

House, December 21, 1869 *

Mr. BINGHAM. I regret, Mr. Speaker, that I am limited, in the discussion of a question of this magnitude, to twenty minutes. It is not in the power of any man to do justice to a question of this sort in so limited a time. I desire to say that I have no occasion to retract any part of my past record in anything I may this day say in favor of postponing the further consideration of this bill until the third Wednesday of January next. Indeed, the reason that impelled me to make that motion is that the bill sent to us from the Senate of the United States is in conflict with every letter of the past legislation of the Congress of the United States on the subject of reconstruction. It is in conflict with the express order of General Grant, now the President of the United States, then General of the Army, acting under the law of reconstruction in 1868, in regard to Georgia. It is in conflict * Cong. Globe, 41st Cong., 2nd Sess., 283–84 (Dec. 21, 1869).

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† [In June 1869, the Georgia Supreme Court ruled that blacks had a right to hold office in the state of Georgia. See White v. Clements, 39 Ga. 232 (1869). —Ed.]

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lature in Georgia those specified in the fourteenth article of amendment. This bill superadds ­qualifications.*

26 New York, “Ratification of the Fifteenth Amendment Rescinded,” New York Times January 6, 1870, p. 1 Albany

First Act of the Democratic Legislature

Ratification of the Fifteenth Amendment Rescinded Strict Party Vote in Both Branches

Albany, Wednesday, Jan. 5, 1870

Tweed’s resolution to rescind the ratification of the Fifteenth Amendment was called up at the opening of the Senate this morning, immediately after the reading of the journal. Senator Woodin, of Cayuga, opened the discussion in a very able legal argument on the right of the present Legislature to rescind the action of a previous Legislature on this subject. He said the question was a novel one, and although two or three States had attempted to take such action, yet there had been but little discussion of the question compared with its importance. . . . It seemed, however, that the majority in the present Legislature of this State was determined to exercise the right, and the minority could only enter their earnest protest against it. The power of a State to take any part whatever in

* [The House passed the Georgia Bill, previously passed by the Senate, on December 21, 1869, 121 to 51 (39 not voting, and Bingham voting nay). See Cong. Globe, 41st Cong., 2nd Sess., 293 (1869). See also An Act to promote the Reconstruction of the State of Georgia, ch. 3, 16 Stat. 59 (Dec. 22, 1869) (“Sec. 8. And be it further enacted, That the legislature shall ratify the fifteenth amendment proposed to the Constitution of the United States before senators and representatives from Georgia are admitted to seats in Congress.”). —Ed.]

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amending the Constitution of the United States was only derived from Congress. A State can neither propose an amendment nor dictate its terms. Its action in the premises was not in the nature of a legislative enactment. The ratification of an amendment is not submitted to the Legislature because it is a law-­making body. If its action was an enactment there might be power to rescind or abolish it, but when a State once assents to the amendment its power over the subject ceases. Suppose the amendment had been submitted to a convention instead of to the Legislature, as it might have been, could the convention, after having ratified it, and adjourned sine die, reassemble and take reverse action on the subject? If not, the how could the Legislature do it? The Constitution of the United States gives to a State Legislature the same power over the subject as it gives to a convention, and no more. Because a Legislature may rescind adverse action on an amendment, it by no means follows that it can rescind affirmative action. Adverse action is simply a nullity; it is no action at all, and leaves the question open for future action. Again, when a State has once ratified an amendment, it is not alone interested in that action; it then becomes the common property of all the States, and cannot be recalled without their consent. ... Senator Murphy, of Kings. . . . Had the ratification of this amendment been made in a regular manner by the last Legislature, the subject might not have been brought here to-­day. But it was not, in his opinion, done in conformity with the terms of the Constitution and laws. Heretofore, all amendments to the Constitution of the United States had been ratified by bill. In this case, it was done by resolution. . . . He maintained that until a majority of States had given their assent to the ratification, the question was sub judice, and not, as Senator Woodin had claimed, functus officio. . . . Mr. Murphy closed by repeating the silly apprehension, first invented by Peter B. Sweeny, that if this amendment was adopted Congress would send inspectors and canvassers of election, and perhaps a military power into the State of New York to control elections here in the interest of the Republican Party. Senator Parker, of St. Lawrence. . . . As to the Senator’s pretended fear that Congress will send inspectors of election and a Military Governor into this State to control elections, it was simply ridiculous and needed no reply. Congress certainly had the power, and it was its duty to enforce by proper legislation any and all

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amendments to the Constitution, and the last clause of the amendment now under consideration was simply designed to effect that end. ... Senator Creamer spoke in favor of the resolution, and at the conclusion of his remarks the vote was taken, and the ratification rescinded by ayes 16, nays 13— a strict party vote. It was immediately sent down to the Assembly, when, after being discussed . . . the resolution was also carried by a party vote. Ayes 69, nays 56.

be restored to civil and political rights. The State which has made such a glorious record in the struggle for freedom and nationality, can afford to be magnanimous to the adherents of the late rebellion, and to those who permitted their patriotism to flag to such a degree as to involve them in dishonor and recreancy to duty. The theory of our government is to regard each citizen as an equal member of the State, vested with certain important and active rights, and charged with duties and responsibilities co-­extensive therewith. Naught but consideration for the public safety will justify the State in depriving the citizen of those rights, or in relieving him from those duties and responsibilities.†

27 Kansas, Gov. James M. Harvey’s Message to the Legislature, Repassage of the Fifteenth Amendment

28 Ohio, Legislature Reverses Prior Vote and Ratifies the Fifteenth Amendment

January 12, 1870*

January 3 and 14, 1870

Gentlemen of the Senate and House of Representatives: ... The report of the Secretary of State will show that there was a verbal inaccuracy in the recitation of the Fifteenth Amendment to the constitution of the United States, as incorporated in the resolution of ratification passed by the legislature at the last session. I recommend that you rectify the mistake and promptly ratify the amendment, which is soon to become part of the fundamental law of our nation—abolishing distinctions as to the political rights of our citizens, which have no other foundation than the prejudices of race, and relieving judges of election from the responsible duty of inquests as to the existence of a “visible admixture” of the blood of any proscribed race. This is a great step towards true republicanism. The present seems also a fitting time to take steps for the removal of restrictions placed by our State constitution upon the political privileges of some of our citizens for participation in the late rebellion, desertion or dishonorable dismissal from the army. These restrictions were probably justifiable only so long as the public safety demanded that they be made. The civil law holds out even to the penitentiary convict, the hope that for good conduct during incarceration and evidences of reformation, he may * Kansas Senate Journal 22–23 (1870).

Senate, January 3, 1870 ‡

Mr. Yeatman offered for adoption the following resolution: S. J. R. No. 4: Relative to an amendment to the Constitution of the United States. WHEREAS, The General Assembly of the State of Ohio has received official notification of the passage, by both Houses of the 40th Congress of the United States, at its third session, of the following proposition to amend the Constitution of the United States, by a constitutional majority of two-­thirds thereof, in the words following, to-­wit: A Resolution proposing an Amendment to the Constitution of the United States. Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-­thirds of both Houses concurring), That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three-­fourths of said Legislatures, shall be valid as part of the Constitution, namely:

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† [The Kansas Senate concurred with the House resolution passing the (now properly reported) amendment on January 19, 1870, on a vote of 25 to 0. See Kansas Senate Journal 95 (1870). —Ed.] ‡ Ohio Senate Journal 9–10 (1870).

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... * AND WHEREAS, Three-­fourths of the Legislatures of the States composing the United States are required to give assent to the said proposed amendment to the Constitution of the United States, before it becomes a part thereof; therefore, Resolved by the General Assembly of the State of Ohio, That we hereby ratify, on behalf of the State of Ohio, the above recited proposed amendment to the Constitution of the United States. Resolved, That certified copies of the foregoing preamble and resolution be forwarded, by the Governor of Ohio, to the President of the United States, to the presiding officer of the United States Senate, the Speaker of the United States House of Representatives, and the Secretary of State of the United States. Mr. Campbell moved to refer said resolution to the committee on Federal Relations. On which motion the yeas and nays were demanded, ordered, and resulted [yeas 20, nays 17] ... So the motion was agreed to.

Senate, January 14, 1870 †

On motion of Mr. Prophet, the Senate resolved itself into committee of the Whole on the orders of the day, Mr. Everett in the Chair; and after some time spent therein, rose and reported back S. J. R. No. 4, and S. B. No. 4, without recommendation. Mr. Campbell moved that said S. J. R. No. 4 be amended by striking out all after the word “Whereas,” in the preamble, and inserting the following: The Fifty-­eighth General Assembly of the State of Ohio rejected, the following amendment to the Constitution of the United States, which had been proposed by Congress, to wit: “ARTICLE FIFTEENTH. “Section 1. The right 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. “Sec. 2. The Congress shall have power to enforce this article by appropriate legislation;” and, WHEREAS, It is alleged that the people of the State of Ohio are dissatisfied with the said action of the Fifty-­ eighth General Assembly; and, * [The text of the Fifteenth Amendment appears here. —Ed.] † Ohio Senate Journal 42–44 (1870).

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WHEREAS, This General Assembly believe that the will of the people, fairly ascertained and distinctly expressed, should be faithfully carried into effect; therefore, Resolved by the General Assembly of the State of Ohio, That the said proposed amendment shall be submitted to a vote of the electors of the State, to be taken at the general election in October, 1870, in the manner following, to-­wit: the following proposition, together with the said proposed amendment, shall be printed on ballots of paper of a color other than white, viz.: “The General Assembly of the State of Ohio are instructed to ratify the proposed Fifteenth Amendment to the Constitution of the United States,” and those voting in favor of ratification shall put upon such ballots the word “Yes,” and those voting against ratification shall put upon their ballots the word “No.” That a return, in addition to the return now required by law to be made of the votes cast at such election for State officers and Representatives in Congress, shall be made of the votes cast for and against said proposition of instructions, and shall be certified by the clerk of each county in the State, to the Secretary of State, within ten days after the election; and within twenty days after the election, the Governor, Secretary of State and Attorney General, shall open said returns and count the votes, and certify an abstract of same to both branches of the General Assembly at the next session thereof. On agreeing to said amendment, The yeas and nays were demanded, ordered, and resulted—yeas 18, nays 19 ... So the amendment was disagreed to. Mr. Campbell moved that said resolution be postponed until the second Monday of January next. On which motion the yeas and nays were demanded, ordered and resulted—yeas 18, nays 19 ... So the motion was disagreed to. The question then being on the adoption of said resolution, The yeas and nays were ordered, and resulted— yeas 19, nays 18 ... So the resolution was adopted.‡ ‡ [Two weeks later, the Ohio House of Representatives rejected an attempt to submit the suffrage amendment to a fall popular referendum on a vote of 57 to 55. The House then voted to ratify the Fifteenth Amendment by the same margin. See Ohio House Journal 87–88 (1870) (Jan. 27, 1870). —Ed.]

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has proposed to the Legislatures of the several States the following article of amendment to the federal Constitution, namely: ... ‡ Be it resolved by the General Assembly of the State of Iowa, That by its Legislature it hereby ratifies, adopts, and assents to the said amendment. On the motion of Mr. Rosser, the report of the committee was adopted.§

29 Iowa, Gov. Samuel Merrill’s Message to the Legislature, Ratification of the Fifteenth Amendment January 11 and 27, 1870

Governor’s Message, January 11, 1870 *

30 California, Gov. H. H. Haight’s Message to the Legislature, Rejection of the Fifteenth Amendment

Gentlemen of the Senate and House of Representatives: ... The Senate and House of Representatives of the United States have . . . adopted a joint resolution proposing an amendment to that Constitution, in effect, conferring suffrage on every male citizen. A copy of this resolution I have the honor to lay before you. I need not urge upon your honorable body its speedy ratification. This amendment yet requires the approval of some six States, in order to its adoption. That this number will be shortly obtained there is little question. The contest of generations, which culminated in the recent civil war, begun in the interest of slavery, will then have reached a termination glorious beyond the most sanguine hope, in the final eradication of the last vestige of human bondage from the polity of the republic.

January 5 and 28, 1870

Governor’s Message, January 5, 1870 ¶

Gentlemen of the Senate and Assembly: A proposed amendment to the Federal Constitution, embodied in a concurrent resolution of Congress, has been received at this Department and is hereby transmitted for your ratification or rejection. It is in the form of an additional article, and it is as follows: . . . **

House, January 27, 1870 † Mr. Kasson, from the Committee of Conference on the proposed Fifteenth Article of the Constitution of the United States, submitted the following report: The Committee of Conference, appointed by their respective Houses to take into consideration the disagreement of the two Houses upon the Joint Resolution ratifying the proposed fifteenth Article of the Constitution of the United States, after a full and free conference thereon, have unanimously agreed to report and recommend to their respective houses the adoption of the Joint Resolution referred to them, amended so as to read as follows: Joint Resolution ratifying the proposed fifteenth article of amendment to the Constitution of the United States, relative to the right of citizens to vote. Whereas, The Fortieth Congress of the United States * Iowa House Journal 14, 48–49 (1870). † Iowa House Journal 128 (1870).

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‡ [The text of the Fifteenth Amendment appears here. —Ed.] § [The Iowa Senate had originally passed the amendment on January 19, 1870. See Iowa Senate Journal 45 (1870). The House passed the amendment the next day on a vote of 84 to 12. See Iowa House Journal 96 (1870). The two houses apparently disagreed on the precise language of the ratification notification and submitted the matter to a committee. On January 27, 1870, the Senate voted to accept the committee’s proposed compromise language and voted 42 to 7 to pass the joint resolution; Iowa Senate Journal 77 (1870). The same day, the House also voted to accept the committee’s proposed language (see above). This appears to have functioned as the House’s final vote on the amendment. One could, therefore, consider Iowa as having ratified the amendment either on January 20 (the date as of which both Houses had voted to pass the amendment) or January 27 (the date they agreed on the precise language of the joint resolution adopting the amendment). I have chosen January 27, as it appears the matter continued to be in some question until that date. —Ed.] ¶ California House Journal 167–76 (1869–70). ** [The text of the Fifteenth Amendment appears here. —Ed.]

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The importance of the principle involved in this amendment will be accepted as a sufficient justification for accompanying it with some views upon the subject. It is well to understand, at the outset, that the issue is not what class ought or ought not to be entrusted with the elective franchise, or whether under any circumstances race should or should not debar any from the exercise of this privilege. All this is a proper subject for consideration and settlement by the people of a State when they frame their organic law, but it is not necessarily involved in considering the proposition submitted by Congress, which is to restrict the people of the several States from exercising their own independent judgment upon the subject. Whether, therefore, Chinese and Indian suffrage is expedient, is not directly in issue at present, but the question is whether the Federal Constitution ought to be so amended as, on one hand, to prevent the people of each State from excluding either of these races from the ballot box, if in their judgment such exclusion is necessary, and on the other, to give Congress the power to place other restrictions upon the exercise of suffrage without the assent of the State Legislatures; in other words, whether suffrage should be controlled and regulated by each State for itself or controlled, enlarged and restricted by Congress alone. Keeping, therefore, the issue separate from collateral ones, two questions are presented in the proposition. The first is a question of power and the second one of policy. If it is not in the power of Congress, in conjunction with three fourths of the States, to take from any state without its consent rights reserved at the formation of the Constitution; in other words if to deprive a State of a distinct right originally reserved is not within the purview of the clause relating to amendments, then of course the proposed amendment must be rejected. And if it is in conflict with sound policy the same result ought to follow. Would the Amendment Be Valid If It Went through the Forms of Adoption? This inquiry can only be intelligently answered by considering the nature and history of the Federal Constitution. When the people of any State, through their delegates and convention, frame a Constitution, they confide to it the whole mass of sovereign powers appertaining to the body politic, with such limitations only as are expressly imposed. The Constitution thus formed represents and embodies the entire sovereign power of the people with such exceptions as are stated in the in-

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strument. The Constitution of the United States is not such an instrument as this. It was not formed upon any such principles, and is not subject to any such rules of construction. It does not represent the whole sovereign power of the people of the United States, considered either in their aggregate capacity or in their several distinct State organizations. It is not an instrument embodying the entire political power of the people, or of the States, with only specified exceptions, but on the contrary, it is a simple delegation to a constituted Federal authority of certain defined and enumerated powers. There is much unprofitable quibbling on this subject, and much disputation about words instead of substance. There are certain facts of history which bear upon the legal questions involved, and to which it is well briefly to recur. When the Constitution was framed, the States of the Union were so many distinct independent sovereign communities. Great Britain was no more absolutely sovereign and independent than were the States of New York, and Massachusetts, Rhode Island and others. ... There has been an infinitude of discussion as to whether the Federal Constitution was framed by the people of the United States considered in mass, or by the people of each State acting as a separate political community. The simple truth of history is, that the Constitution was not the work of the people of the United States in their aggregate capacity, but was the work of the States acting as distinct and independent bodies. . . . Each one reserved certain great sovereign powers, among which was the fundamental and essential attribute of all self-­governing communities, to wit: that of determining who and what classes should participate in the election of its officers and in framing and administering its laws. The clause of amendment to the Federal Constitution, although general in its language, should be construed in its relations to what was really the subject matter upon which it was to operate. It was a right to amend the Constitution, and this latter was simply the powers delegated to the Federal authority. Those powers might, by amendment, be modified, but the power to amend is properly and legitimately confined to this. The States can amend the “Constitution,” that is, the “powers delegated,” by pursuing certain steps, but farther than this, the right of amendment cannot go. This is not theory; it is simple history and fact. It is law as expounded in effect and in analogy by Chief Justice Marshall, one of

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the earliest and, perhaps, the greatest jurist our country has produced. Though he was in politics a Federalist and leaned toward strong central authority and against strict construction; though he went much farther in favor of federal power then either Jefferson, Madison or Monroe, still even he judicially declared, in the case of Gibbons vs. Ogden, in delivering the opinion of the Supreme Court of the United States, that the Federal Government “possessed only certain enumerated powers.” In the same case, he says: “It has been said that they (the states anterior to the formation of the Constitution) were completely independent, and were connected with each other only by a league. This is true.” In the case of McCulloch vs. the State of Maryland, he used these expressions: “No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass.” This opinion was delivered in the year 1819. Had judge Marshall lived just half a century later, he would hardly have ventured to give this unqualified assurance; for we have not only many such men now in high places, but we have seen at this day those who advocate the erection of a grand central consolidated government upon the ruins of the Constitution. In this same case, he says further: “This government is acknowledged to be one of enumerated powers. The principle that it can exercise only the powers granted to it, is now universally admitted.” ... Such is the Constitution to which the article relating to amendments was applied. That article provides the Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments, which, when ratified by the legislatures of three fourths of the states, shall be part of the Constitution; provided, that no state shall, without its consent, be deprived of its equal suffrage in the Senate. This proviso has been quoted to found upon it an argument that it constitutes the sole exception to an unlimited power of amendment, which might radically change and transform the whole system. It is obvious, however, this proviso is entirely consistent with the limitation of the right of amendment to the powers delegated. It would be irrational to infer from a proviso inserted out of abundant caution any such sweeping ­results. ... It would hardly be contended that, by amendment, this right of equal suffrage could be infringed, and yet

this is no more sacred than any right which is reserved by each State, and no more absolutely outside of the operation of the Constitution. When the tenth article was adopted, which declares that “all powers not delegated to the United States are reserved to the States respectively or to the people,” is it probable, or possible, that those who supported this article would have sanctioned the doctrine that, by process of amendment, any one State could be deprived of rights so carefully and jealously reserved? ...

590

What Limit Can Be Set to the Power of Amendment, as Claimed by Congress? This right to amend either has a limit or it has none. No rational man, however, would have the hardihood to contend that by an amendment a hereditary monarchy could be established, or for breaking down State lines and “compounding the States into one common mass;” for depriving the people of any State of the power to elect their Executive, Legislature and Judiciary, or for accomplishing any complete subversion of our system. . . . If there is no limit to this process of amendment, the people of a section of the country could be deprived of every vestige of self-­government, and held in a condition of provincial servitude. Whether such monstrous results are probable or improbable is not material to the present inquiry; but it may be truly said, in passing, that the abolition of civil government, and the establishment of military rule in military tribunals, years after hostilities have ceased, is as monstrous a violation, not merely of law and Constitution, but of the first principles of civil liberty, as could well be conceived of. The right of amendment, then, must have some limit. It is not an unlimited license to deprive any state of a right which it refused to surrender at the time it entered the Union, but in its spirit and essence has relation to the mass of delegated powers which compose what we call “the Federal Constitution.” ... Of all the rights reserved, the last one probably which the States would have surrendered, was that of regulating and controlling the elected franchise within their borders. . . . Nothing can be more improbable than that either one of the original states, whose people had undergone such sufferings, and made such sacrifices of property and blood to gain their independence, would have voluntarily surrendered it by conceding to the people of any other State, or to any power outside

B. Ratification, doc. 30

of themselves, the right to dictate who should or should not participate in the control of their local affairs. What was the spirit and essence of the reservation made by the States of certain rights and powers? It was clearly understood that a “reserved power” was one withdrawn and excluded entirely from the operation of any and every clause in the Federal Constitution, including the clause in reference to amendments. The powers reserved were left under the sole and exclusive jurisdiction of each State, free from any other influence for control. This is what was intended and what was effective by reserving certain rights. Each State felt unwilling to place the rights which were thus retained, where they could be interfered with by any power except its own citizens, and the wisdom of this is becoming more manifest everyday.

The Practice of the Government Tends to Support the Views above Advanced. ... It seems clear, then, upon principle and authority, that if the proposed amendment went through the forms of adoption it would be a mere brutum fulmen, destitute of any validity whatever. Aside, however, from the legal questions involved, the objections to the proposition on the score of public policy seem unanswerable. To say that the people of California should tie their hands upon the subject, is to charge upon them either incompetency to comprehend what is expedient and just to those within her jurisdiction, or unwillingness to be governed by justice and sound policy. It would require some boldness for anyone to come before the people of this State with such a charge, and if the people are competent to determine whether any, and what, restrictions should be placed upon the elective franchise, it is difficult to discover any plausible reason why they should surrender the power of determination to a Congress of which they elected but five members in both Houses. It is fair to presume that the people of this State understand their duties and interests in reference to this subject quite as well as they are understood by the people of the States east of the mountains. If this amendment is adopted, the most degraded Digger Indian within our borders becomes at once an elector and, so far, a ruler. His vote would count for as much as that of the most intelligent white man in the State. In this event, also, by a slight amendment to the naturalization laws, the Chinese population could be made electors.

591

... There is no plausible argument, then, in favor of this amendment, which can be addressed to the people of the state. On the contrary, every consideration of legal right and public policy makes against it. Nothing could be more loose and objectionable than the clause which authorizes Congress to enforce the restraint upon the States by “appropriate” legislation. Who is the judge of what is “appropriate?” ... The fourteenth and fifteenth amendments, so-­called, have a direct design and tendency to centralize the government, and to deprive in each State of any control over its local affairs. Under the Constitution, as originally framed, certain appropriate functions were assigned to the Federal Executive and Congress. It was intended to confine them to such objects as affected all the States in their federative capacity, and to leave each State the exclusive control of its local and domestic concerns. To depart from this design, and centralize all power at the Federal Capital, is to diverge widely from the original spirit of our system, and to violate the principles of self-­ government. ... The means taken to secure the passage of the proposed amendment are not such as to commend it to favor. A pledge of as solemn and unequivocal a character as could be framed, was given by the successful party in the late presidential contest against any interference with the right of each of the northern States to exercise exclusive control over the suffrage within their territory. Upon this pledge they succeeded in electing their candidates, and as soon as their success was secured they proceeded at once, in deliberate violation of the pledge given, to adopt every means within their reach to do precisely what they declared they would not do. These measures were as unworthy as the scheme itself was disreputable. Representatives were excluded from States which had not assented to the amendment, and their admission held out as a bribe to secure its ratification. Every expedient of coercion on the one hand and reward on the other has been resorted to. The people were not allowed the opportunity to manifest their will, but the amendment was pressed through the Legislature of more than one State whose people were notoriously adverse to it. No amendment adopted by the use of such means could possess any binding obligation unless it has become a principal of constitutional law that falsehood, fraud and duress can impart validity to an amendment

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when the same elements would void a contract between private parties in any Court of justice in christendom. ... In view, then, of the want of legal power to bind any State to this so-­called amendment, and of the pernicious principle which it embodies, as well as in view of the scandalous manner in which the people of the several States have been sought to be defrauded, bribed and coerced into its adoption, I trust it will be formally rejected by your honorable bodies. H. H. Haight.

31 Georgia, Gov. Rufus Bullock’s Message to the Legislature, Ratification of the Fourteenth and Fifteenth Amendments February 2, 1870‡

The following communication was received from his Excellency the Provisional Governor, through Mr. Lester, his Secretary, which was read: Mr. Speaker: I am directed by His Excellency the Provisional Governor to deliver to the House of Representatives a communication in writing. On motion of Mr. O’Neal of Lowndes said communication was taken up, read, and is as follows, to wit: “To the Senate and House of Representatives of the Provisional Legislature: ... “It therefore follows that, having perfected an organization as required by law, you are prepared and required to pass upon several subjects submitted for your action by the acts of Congress, known as the reconstruction acts, and to elect Senators. “These subjects are the ratification of the Fourteenth Amendment, giving the assent of the State to certain modifications of the Constitution, and the adoption of the Fifteenth Amendment. “Should it be urged that we have already acted upon the Fourteenth Amendment, etc., it is a sufficient answer to quote the action of Congress, wherein they hold that no legal organization of a Legislature has heretofore been perfected. And should it be argued that Georgia was counted as having ratified the Fourteenth Amendment, it is answered by the following joint resolution of Congress, adopted before Georgia acted, and in which Georgia is not named.§ ... “Our action having been accepted and approved by Congress by the admission of Senators and Representa-

House, January 28, 1870 *

Mr. Speaker: I am directed to inform the assembly that the Senate, on yesterday, adopted Senate Concurrent Resolution No. 3, relative to the Fifteenth Amendment: WHEREAS, The Congress of the United States, two thirds of both Houses having deemed it necessary, by a joint resolution duly passed, did propose to the Legislatures of the several States for their ratification, a certain amendment to the Constitution of the United States, which proposed amendment is in the words and figures following, to wit: ... † Therefore, be it resolved by the Senate and Assembly of the State of California, that the said proposed amendment be and the same is hereby disapproved of and rejected by the Legislature of the State of California. CURTIS Assistant Secretary Senate Joint Resolution No. 3, above reported, read first and second times. Mr. Gildea moved that the rules be suspended and that Senate Joint Resolution No. 3 be now placed on its final passage. The motion was agreed to, and the resolution read a third time, by unanimous consent. On the passage of the resolution, the ayes and noes were demanded . . . and the vote was taken as follows: [Ayes 51, Noes 8] Whereupon the Speaker announced that the proposed Fifteenth Amendment to the Constitution of the United States had been rejected by the people of the sovereign State of California, in Senate and Assembly represented.

* California House Journal 295–96 (1869–70). † [The text of the Fifteenth Amendment appears here. —Ed.]

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‡ Georgia House Journal 52 (1870). § [See “US Congress, Senate and House Resolutions Declaring the Ratification of the Fourteenth Amendment,” this volume, 1B, doc. 99. —Ed.]

B. Ratification, doc. 32

tives, we will, after nearly ten years of wandering astray, be once more a State in the Union. ... “I transmit herewith authentic copies of the joint resolutions of the Thirty-­ninth Congress proposing an amendment to the Constitution of the United States, known as Article XIV., and the joint resolution of the Fortieth Congress proposing an amendment known as Article XV.; also the act of June 25, 1868, which requires the assent of the State to be given to certain modifications of the Constitution of the State. ... “Let us, therefore, unite in a complete recognition of the rights of men, irrespective of birth, color or previous condition, and frankly admit that under, and before, the law all men are equal—that all are responsible— and see to it that by future legislation the requirements of our Constitution are recognized—that free schools are established and maintained, and that protection is secured for person and property, and for the free expression of political opinions. “Let party lines be extended so as to welcome and include all who are in favor of impartial suffrage and universal amnesty. Under our State Constitution no man is disfranchised, and under the Constitution of the United States no man will be disqualified from holding office who is ready to maintain and uphold the Government. “I would respectfully recommend that the Fourteenth Amendment and the fundamental conditions required by the Act of June 25, 1868, and the Fifteenth Amendment be adopted at once, and that your honorable body then take a recess until Monday, the 14th instant. ... Rufus B. Bullock, Provisional Governor. Atlanta, Wednesday, February 2, 1870.”

The previous question called and sustained; the main question put, and the resolution put upon its passage; upon the adoption of which, the yeas and nays being required to be recorded, resulted in yeas 71, and nays 00. ... So the resolution was adopted. ... Mr. O’Neal of Lowndes offered the following preamble and resolution, and moved that the same be adopted, to wit: ... † Resolved, If the Senate concur, that the said proposed amendment to the Constitution be, and the same is hereby, ratified by the Legislature of the State of G ­ eorgia. The previous question called and sustained; the main question put, and the resolution put upon its passage; upon the adoption of which the yeas and nays being required to be recorded, resulted in yeas 75, and nays 29. ... So the resolution was adopted. Mr. Tweedy of Richmond moved that the three resolutions offered by Mr. O’Neal, and adopted, be transmitted forthwith to the Senate; which motion prevailed.‡

32 “The Amendment Complete,” Boston Daily Journal February 4, 1870, p. 2§

Georgia makes the twenty-­eighth State that has ratified the fifteenth Amendment, thus completing the number necessary to make it part of the Constitution of the United States. We put the process of ratification thus far on record, as follows:

Mr. O’Neal of Lowndes offered the following preamble and resolution and moved that the same be adopted: ... * Resolved, If the Senate concur, that the said proposed amendment to the Constitution be, and the same is hereby, ratified by the Legislature of the State of Georgia. * [The text of the Fourteenth Amendment appears here. —Ed.]

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† [The text of the Fifteenth Amendment appears here. —Ed.] ‡ [The Georgia Senate ratified both amendments the same day. See “Notice of Georgia Ratification,” Miscellaneous Documents of the Senate of the United States, vol. 265, issues 1–164, 41st Cong., 2nd. Sess., Misc. Doc. No. 40 (1870). —Ed.] § [The Journal appears to have inadvertently omitted Rhode Island’s ratification vote from its list (while including its vote in its count to reach twenty-­eight states). See also New York Tribune, Feb. 16, 1870, 4 (listing twenty-­nine ratifying states, including Rhode Island, and reporting on the Texas provisional government’s ratification vote of February 15, 1869). —Ed.]

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States Missouri Kansas North Carolina West Virginia Massachusetts Wisconsin Maine Louisiana Michigan South Carolina Pennsylvania Arkansas Connecticut Florida Illinois Indiana New York New Hampshire Nevada Vermont Virginia Alabama Minnesota Mississippi Ohio Iowa Georgia

it will disappear only with the last muniments of constitutional liberty in the United States.

Date of Ratification March 1, 1869 (Corrected) Feb. 27, 1869 (Corrected) March 5, 1869 March 3, 1869 March 9–12, 1869 March 9, 1869 March 12, 1869 March 5, 1869 March 8, 1869 March 16, 1869 March 26, 1869 March 30, 1869 May 19, 1869 June 15, 1869 March 5, 1869 March 13–14, 1869 March 17, April 14, 1869 July 1, 1869 March 1, 1869 October 21, 1869 October 8, 1869 November 18, 1869 January 14, 1870 January 15, 1870 January 20, 1870 January 20, 1870 February 2, 1870

33 New Jersey, Legislative Debate, Rejection of the Fifteenth Amendment February 7, 1870*

Mr. Hopper . . . was opposed to the fifteenth amendment, on the ground that every patriotic man ought to be. It enslaves the states, and destroys the very foundation of this government. Whatever powers were not granted to the general government, were reserved to the States. This amendment was absolutely void, and never can become legally a part of the Constitution. . . . But gentlemen say we cannot have a republican form of government where there is taxation without representation. Where are the white women of the country, (some Senator suggested that they were represented by their husbands)? In nine cases out of ten the husbands ought to be represented by their wives. Shall it be said to the disgrace of the founders of this government that until the Republican Party came into power we have not had a republican form of government. Mr. H read from a speech of Lincoln, where he said he was not in favor of making jurors of Negroes, and that there was a physical difference between the white and black races that would forbid the living and governing together of these two races. ... Mr. Ride thought if we were forced to take the negroes to our bosoms we ought to take the ladies also. Mr. Little had not intended to say a word on this subject, but the Senator from Camden was so exceedingly adroit in his argument to apply entirely to the right of suffrage to be given to the colored men. As the Senator has well said the matter has been fully discussed, and the people of New Jersey have decided for themselves; have decided emphatically that they can better regulate their own domestic matters than they can be regulated by the Congress of the United States. It was not a question of race or color, but a question that the people of

Nebraska will add its ratification during the present month, and Texas is bound by the reconstruction acts to accept the amendment as a condition precedent to restoration of the Union. We may remark that the latter State has hitherto been regarded as much more likely than Georgia to give its ratification at the first suitable opportunity. When these thirty States shall have recorded their assent, it will be time to attend to the claim of New York that she has withdrawn hers. Even if it should be admitted, as well as the claim of the Indiana Democrats that the ratification of that State was defective, it will still be seen that the requisite constitutional number will remain. Neither of those pretenses, however, will stand an impartial examination. The Fifteenth Amendment has been incorporated, merged in the Constitution, and there it will remain forever. The life-­blood of fallen patriots, and all the terrible sacrifices of a great war, have been distilled into that precious guaranty of equal rights at the ballot box, and

* Trenton State Gazette (NJ), Feb. 9, 1870, 2. [See also New Jersey Senate Journal 165–66 (1870). —Ed.] 594

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the State want to decide for themselves. Are we better prepared to decide whether the Chinese are prepared for suffrage than the people of California themselves? And who are better prepared to decide for the people of New Jersey than themselves? ... Mr. Taylor said, this amendment says if you make a distinction it shall not be from color, but something more substantial—intelligence and moral qualifications. The Senator from Passaic says if you incorporate such a thing in our Constitution you revolutionize our government. He would undertake to say nothing of the kind, but would refer all senators to the Declaration of Independence. The right to govern is considered by implication. The black as well as the white is the power from which is derived the right to govern. The Declaration sets forth the power, that we, the people of the United States, not we the people of one state or the other, the white or the black. Hasn’t the Constitution given Congress the power to provide matters of this kind? It undertakes in other provisions to regulate matters which are akin to this, civil liberty equality before the law are given to all. There was a danger of a war of race, and he was willing to get an amendment to get this thing out of politics. Some white men are black, and some black men are white. The fifteenth amendment was necessary to furnish the step-­stone for this improvement in our government. This matter of color was the cause of all our woes, and if it had not been for this question we would not have had the war, and this amendment is to root it out. ... Mr. Nixon argued in favor of the passage of the amendment on constitutional principles, and contended that Congress has the right to legislate on this question of suffrage, quoting Madison and others. This question of the right of Congress to interfere on matters of suffrage was given by the provisions of the Constitution itself. New Jersey cannot affect the fate of this amendment, and he was thankful that its fate did not depend upon New Jersey. He was glad that he could place his vote and name right on the record. This long-­ excited question will be settled, and the people of all parts of the country will address themselves to other and better purposes. ... Mr. Rice indulged in a little pleasantness on the same subject, concluding with the language of the latest poet 595

“Shoo fly don’t bodder me.” After which a vote was taken resulting in the passage of the resolution rejecting the consent of New Jersey to the amendment by a party vote as follows: [For rejection 13, for adoption 8]

34 President Ulysses S. Grant, Message to Congress Announcing the Ratification of the Fifteenth Amendment March 30, 1870*

The VICE PRESIDENT laid before the Senate a message of the President of the United States, transmitting the proclamation by the Secretary of State of the ratification of the fifteenth constitutional amendment. The proclamation was read, as follows: Hamilton Fish. Secretary of State of the United States. To all to whom these presents may come, greeting: Know ye, that the Congress of the United States on or about the 27th day of February, in the year 1869, passed a resolution in the words and figures following, to wit: “A resolution proposing an amendment to the Constitution of the United States. “Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two-­thirds of both Houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three-­fourths of said Legislatures, shall be valid as part of the Constitution, namely: “Article XV. “Section 1. The right 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. “Sec. 2. The Congress shall have power to enforce this article by appropriate legislation.”

* Cong. Globe, 41st Cong., 2nd Sess., 2289–90 (Mar. 30, 1870).

Pa r t 2 . T h e F i f t e e n t h A m e n dm e n t

And further, that it appears from official documents on file in this Department that the amendment to the Constitution of the United States, proposed as aforesaid has been ratified by the Legislatures of the States of North Carolina, West Virginia, Massachusetts, Wisconsin, Maine, Louisiana, Michigan, South Carolina, Pennsylvania, Arkansas, Connecticut, Florida, Illinois, Indiana, New York, New Hampshire, Nevada, Vermont, Virginia, Alabama, Missouri, Mississippi, Ohio, Iowa, Kansas, Minnesota, Rhode Island, Nebraska and Texas, in all, twenty-­nine States; And further, that the States whose Legislatures have so ratified the said proposed amendment constitute three fourths of the whole number of States in the United States; And further, that it appears from an official document on file in this Department that the Legislature of the State of New York has since passed resolutions claiming to withdraw the said ratification of the said amendment, which had been made by the Legislature of that State, and of which official notice had been filed in this Department; And further, that it appears from an official document on file in this Department that the Legislature of Georgia has by resolution ratified the said proposed Amendment: Now, therefore, be it known that I, Hamilton Fish, Secretary of State of the United States, by virtue and in pursuance of the second section of the act of Congress, approved the 20th day of April, in the year 1818, entitled “An act to provide for the publication of the laws of the United States, and for other purposes,” do hereby certify that the amendment aforesaid has become valid to all intents and purposes as part of the Constitution of the United States. In testimony whereof I have hereunto set my hand and caused the seal of the Department of State to be affixed. Done at the city of Washington this 30th day of March in the year of our Lord 1870, and of the independence of the United States the ninety fourth. [L.S.] Hamilton Fish

Secretary of State, of the ratification of a constitutional amendment. In view, however, of the vast importance of the fifteenth amendment to the Constitution, this day declared a part of that sacred instrument, I deem a departure from the usual custom justifiable. A measure which makes at once four million people voters who were heretofore declared by the highest tribunal in the land not citizens of the United States, nor eligible to become so (with the assertion that “at the time of the Declaration of Independence the opinion was fixed and universal in the civilized portion of the white race, regarded as an axiom in morals as well as in politics, that black men had no rights which the white man was bound to respect,”) is indeed a measure of grander importance than any other one act of the kind from the foundation of our free Government to the present day. Institutions like ours, in which all power is derived directly from the people, must depend mainly upon their intelligence, patriotism, and industry. I call the attention, therefore, of the newly enfranchised race to the importance of their striving in every honorable manner to make themselves worthy of their new privilege. To the race more favored heretofore by our laws I would say, withhold no legal privilege of advancement to the new citizen. The framers of our Constitution firmly believed that a republican Government could not endure without intelligence and education generally diffused among the people. The “Father of his Country,” in his Farewell Address, uses this language: “Promote then, as a matter of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of the government gives force to public opinion it is essential that public opinion should be enlightened.” In his first annual message to Congress the same views are forcibly presented, and are again urged in his eighth message. I repeat that the adoption of the fifteenth amendment to the Constitution completes the greatest civil change and constitutes the most important event that has occurred since the nation came into life. The change will be beneficial in proportion to the heed that is given to the urgent recommendations of Washington. If these recommendations were important then, with a population of but a few millions, how much more important now with a population of forty millions and increasing in a rapid ratio. I would therefore call upon Congress to take all the means within their constitutional powers to promote

The message was read as follows:

To the Senate and House of Representatives: It is unusual to notify the two Houses of Congress by message of the promulgation, by proclamation of the 596

B. Ratification, doc. 35

and encourage popular education throughout the country; and upon the people everywhere to see to it that all who possess and exercise political rights shall have the opportunity to acquire the knowledge which will make their share in the Government a blessing and not a danger. By such means only can the benefits contemplated by this amendment to the Constitution be secured. U. S. GRANT. Executive Mansion, March 30, 1870.

be able to join in the home celebration of joy and gratitude. The revolution wrought in our condition by the fifteenth amendment to the Constitution of the United States, is almost startling, even to me. I view it with something like amazement. It is truly vast and wonderful, and when we think through what labors, tears, treasures and precious blood it has come, we may well contemplate it with a solemn joy. Henceforth we live in a new world, breathe a new atmosphere, have a new earth beneath and a new sky above us. Our new condition brings with it that which should make us thoughtful as well as joyful. It sweeps the future of our ancient shortcomings and flings us as a race upon our own responsibility. Equal before the Lord, equal at the ballot box and in the jury box, the glory or shame of our future condition is to fall upon ourselves. Until now we have had no glory in our future—only one dark, monotonous chaos—to which we looked with sad and sullen sense of wrong. To-­day we survey a future radiant with light and hope. We were always men—now we are citizens and men among men. We admit the responsibility of our new relation but do not shrink from it. We start in the race of civilization with many hindrances attaching to us from our past condition—but we shall be sure to shake off these hindrances in the sad race and sweep onward in the pathway of improvement, in a manner which will be as gratifying to our friends as grievous to our enemies. Gentlemen, accept my best wishes for the success of your celebration, and believe me very truly yours, Frederick Douglass

35 Frederick Douglass, Letter to a Ratification Celebration April 5, 1870*

The following letter from Mr. Frederick Douglass was read at a meeting held in Rochester on Thursday evening, to celebrate the ratification of the Fifteenth Amendment: Rochester, April 5, 1870 Messrs. Bruce and Babcock: Gentlemen—I sincerely regret that an appointment of long-­standing, and one which I cannot now recall, will make it out of my power to be present at the City Hall on Thursday. I feel it a positive depravation not to * Cincinnati Commercial Tribune, Apr. 15, 1870, 3.

597

Appendix

Introduction to the Appendix 1. The Enforcement Bill and Repassage of the 1866 Civil Rights Act (May 31, 1870) 2. US House, Judiciary Committee, Petition of Victoria Woodhull on the Subject of Female Suffrage (Jan. 2, 1871) 3. US House, Judiciary Committee, “The Woodhull Report” (Jan. 30 and Feb. 1, 1871) 4. US House, Speech of John Bingham on the

5. 6. 7. 8. 9.

Introduction to the Appendix

The primary goal of this collection is to bring together particularly important documents relating to the framing and ratification of the three Reconstruction Amendments. Accordingly, the major part of the collection ends with the ratification of the Fifteenth Amendment. A secondary purpose, however, is to include those documents that most historians, lawyers, and judges would agree are especially significant in studying the history of these three critical amendments. Although the bulk of these documents involve debates and discussions prior to 1870, there are a select few oft-­studied documents that were published after the ratification of the Fifteenth Amendment that scholars frequently include in their discussions of the historical understanding of the Reconstruction Amendments. I include them in this appendix. Once one opens the door to post–­Fifteenth Amendment discussions and debates, of course, there is no end of possibly—indeed likely—informative historical documents. But the limited nature of this collection requires narrowing down the possibilities to a few key Supreme Court cases, a particularly important piece of Reconstruction legislation, a representative early debate over women’s suffrage, and a final word by one of the most important players in this constitutional drama, John Bingham. The 1870 Enforcement Act (doc. 1) enforced rights declared in both the Fourteenth and Fifteenth Amendments. The first of several post–­Fifteenth Amendment acts protecting the newly constitutionalized rights of freedmen, the 1870 act protected freedmen from discriminatory suppression of their right to vote and reenacted the 1866 Civil Rights Act. Where the original 1866 Civil Rights Act protected only citizens, a provision in the Enforcement Act reenacting the 1866 act extended most of the original protections of persons and property to all persons. This remedied an omission in the original

Meaning of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment (Mar. 31, 1871) The Slaughterhouse Cases (1873) Bradwell v. The State (1873) Minor v. Happersett (1875) United States v. Reese (1876) United States v. Cruikshank (1876)

bill criticized by John Bingham (see part 1A, doc. 48). In 1876, the Supreme Court struck down Section Three of the 1870 Enforcement Act in United States v. Reese (see this appendix, doc. 8). On January 2, 1871, women’s rights activist (and future presidential candidate) Victoria C. Woodhull appeared in person before the House Judiciary Committee and presented a petition calling for congressional enforcement of women’s constitutional right to vote (doc. 2). The 1871 “Petition of Victoria Woodhull” represents an early effort to interpret Section One of the Fourteenth Amendment as protecting women’s equal political rights—in particular, their right to vote. According to Woodhull, the Fourteenth Amendment “defines a woman born or naturalized in the United States, and subject to the jurisdiction thereof, to be a citizen.” The Fifteenth Amendment in turn “recognizes the right of citizens to vote,” and Woodhull asserted that women (including black women) should therefore be presumed to be among those citizens whose Fifteenth Amendment right to vote cannot be abridged on the basis of race. On January 30, 1871, in a report submitted by John Bingham, a majority of the Judiciary Committee rejected Woodhull’s reading of the Fourteenth and Fifteenth Amendments (doc. 3). According to the majority report, the citizenship clauses of Section One of the Fourteenth Amendment “did not change or modify the relations of citizens of the State and nation as they existed under the original Constitution.” Nothing in either the Fourteenth or Fifteenth Amendments prevented States from limiting the rights of suffrage to men. Referring specifically to the Privileges or Immunities Clause of the Fourteenth Amendment, the report explained:

601

The clause of the fourteenth amendment, “No State shall make or enforce any law which shall abridge

Appendix

the privileges or immunities of citizens of the United States,” does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two. The fourteenth, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for their enforcement as an express limitation upon the powers of the States. It had been judicially determined that the first eight articles of amendment of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article. (doc. 3)

ment’s Privileges or Immunities Clause, Bingham explained: Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provision of the fourteenth article, that no state shall abridge the privileges and immunities of citizens of the United States, which are defined in the eight articles of amendment, and which were not limitations on the power of the States before the fourteenth amendment made them limitations? Sir, before the ratification of the fourteenth amendment, the State could deny to any citizen the right of trial by jury, and it was done. Before that the State could abridge the freedom of the press, and it was so done in half of the States of the Union. Before that a State, as in the case of the State of Illinois, could make it a crime punishable by fine and imprisonment for any citizen within her limits, in obedience to the injunction of our Divine Master, to help a slave who was ready to perish; to give him shelter, or break with him his crust of bread. . . . Under the Constitution as it is, not as it was, and by force of the fourteenth amendment, no State hereafter can imitate the bad example of Illinois, to which I have referred, nor can any State ever repeat the example of Georgia and send men to the penitentiary, as did that State, for teaching the Indian to read the lessons of the New Testament, to know that new evangel, “The pure in heart shall see God.” (doc. 4)

Three months later, on March 31, 1871, John Bingham delivered a speech in the House of Representatives in which he presented a far more expansive interpretation of the meaning of the Privileges or Immunities Clause (doc. 4). In the course of a debate over a new Fourteenth Amendment enforcement bill, a member had challenged Bingham to explain why, during the drafting of the Fourteenth Amendment, he had abandoned the language of his original draft of Section One, which had protected the “privileges and immunities of citizens in the several States” (see part 1A, doc. 40) and replaced it with language protecting the “privileges or immunities of citizens of the United States” (part 1A, docs. 59 and 60). In his speech, Bingham explained that his second draft protected the rights of national citizenship that are “altogether distinguishable” from the state-­secured rights protected by the comity clause contained in Article IV. According to Bingham: Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows: [Bingham quotes verbatim the first eight amendments to the federal Constitution]. (doc. 4)

Referring particularly to the antebellum Article IV case Corfield v. Coryell (vol. 1, 1B, doc. 18), which some members argued informed the Fourteenth Amend-

602

Two years later, the Supreme Court weighed in for the first time on the meaning of the Thirteenth and Fourteenth Amendments. In the Slaughterhouse Cases (doc. 5), a majority of the Supreme Court rejected a claim by Louisiana slaughterhouse operators that a state monopoly imposed a form of slavery forbidden by the Thirteenth Amendment, abridged their rights as American citizens to pursue a trade, and denied them both due process and equal protection. Writing for the Court, Justice Samuel Miller recounted the history behind the adoption of the three Reconstruction Amendments and concluded, “[N]o one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race.” Using this historical purpose as an interpretive guide, Miller dismissed the idea that mo-

Introduction to the Appendix

nopolistic restrictions on trade involved anything like “negro slavery” or “any other kind of slavery.” Miller also briefly dismissed the plaintiffs’ Fourteenth Amendment due process and equal protection claims on the grounds that the state law neither deprived anyone of property nor discriminated against anyone on the basis of race—the latter being the presumed purpose of the equal protection clause. The bulk of Miller’s opinion focused on the plaintiffs’ claim that the right to pursue a trade was a privilege or immunity of citizens of the United States protected against state abridgment by Section One of the Fourteenth Amendment. Here, Miller joined John Bingham in distinguishing Article IV “privileges and immunities” and Fourteenth Amendment “privileges or immunities.” Miller accepted Justice Washington’s formulation in Corfield v. Coryell that the “comity clause” of Article IV granted sojourning “citizens in the several States” a degree of equal access to a set of “fundamental” state-­ secured rights, including the equal right to pursue a trade. Fourteenth Amendment “privileges or immunities of citizens of the United States,” however, involved a completely different set of rights. These involved only those rights which “owe[d] their existence to the Federal government, its National character, its Constitution, or its laws.” Here Miller supplied a short, inexhaustive list of national privileges or immunities, including “[t]he right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States, and not citizenship of a State.” The right to pursue a trade, Miller explained, was not one of the rights “guaranteed by the federal Constitution,” but instead involved a matter reserved to the regulatory control of the states. To accept the plaintiffs’ Corfield-­based interpretation of the Privileges or Immunities Clause, Miller insisted, would “transfer the security and protection” of local civil rights “from the States to the Federal government” and empower Congress to impose federal regulatory control of everything from “the right to acquire and possess property of every kind” to the right “to pursue and obtain happiness and safety.” This would “fetter and degrade the State governments” and would “radically change[ ] the whole theory of the

603

relations of the State and Federal governments to each other and of both these governments to the people.” Miller refused to accept such consequences “in the absence of language which expresses such a purpose too clearly to admit of doubt.” In a dissent joined by Chief Justice Salmon Chase and Justices Noah Swayne and Joseph Bradley, Justice Stephen Field insisted that the right to pursue a trade was among the “privileges or immunities of citizens of the United States.” According to Field, “There is no more sacred right of citizenship than the right to pursue unmolested a lawful employment in a lawful manner. It is nothing more nor less than the sacred right of labor.” Field excoriated the majority’s narrow interpretation of the Privileges or Immunities Clause as reducing the provision to “a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.” Also writing in dissent, Justice Bradley argued that the plaintiffs had a claim under the due process clause: Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all. ... This right to choose one’s calling is an essential part of that liberty which it is the object of government to protect; and a calling, when chosen, is a man’s property and right. Liberty and property are not protected where these rights are arbitrarily assailed.

Justice Bradley narrowed the potential scope of these words the very next day when the Supreme Court handed down its opinion in Bradwell v. Illinois (doc. 6). The Illinois Supreme Court had refused to admit Myra Bradwell to the practice of law, regardless of her credentials, on the grounds that she was a woman. Bradwell appealed to the US Supreme Court, arguing that the denial was an abridgment of her Fourteenth Amendment privileges and immunities. Writing once again for the majority, Justice Miller simply cited the previous day’s decision in Slaughterhouse and denied her claim: the right to pursue a trade, whether lawyer or slaughterhouse operator, was not a protected privilege or immunity of citizens of the United States. Justice Joseph

Appendix

Bradley, who had just dissented in Slaughterhouse, this time concurred with the majority. According to Bradley, “[t]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.” Under common law, Bradley explained, “a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state.” This legal incapacity justified the Illinois Supreme Court’s decision to render “a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counselor.” Efforts by women’s rights activists to expand the protections of the Fourteenth Amendment to political rights would fare no better. In the 1875 case Minor  v. Happersett (doc. 7), for example, the Supreme Court rejected the same claim that Victoria Woodhull had made unsuccessfully before the House Judiciary Committee—that women, as citizens of the United States, have a Fourteenth Amendment–­protected right to vote. Writing for a unanimous Court, Chief Justice Morrison Waite conceded that women were citizens, but noted that since the time of the nation’s founding, this status had never been understood as necessarily including the rights of suffrage. Examining the constitutions of the states that had ratified the original Constitution, Waite concluded, “[W]e find that in no state were all citizens permitted to vote. Each state determined for itself who should have that power.” If the founders, or the framers of the Fourteenth Amendment, had intended to alter this arrangement, it “would have been expressly declared.” The framers of the Fifteenth Amendment had, of course, expressly declared that blacks could not be denied the right to vote on account of race. Although the framers of that amendment had rejected efforts to prohibit other means of denying suffrage besides racial discrimination in Section One of the Fifteenth Amendment, it was an open question whether Congress could legislatively expand this protection pursuant to its powers under Section Two. In the 1876 case United States v. Reese (doc. 8), the Supreme Court said no. According to Chief Justice Morrison Waite, “[t]he Fifteenth Amendment does not confer the right of suffrage upon any one.” The amendment did nothing more than prevent the state or federal government “from giving preference, in this particular, to one citizen of the United States over another on account of race, color, or previous condition of servitude.” Congress had no power to enforce the

amendment beyond legislation that protected against racially discriminatory interference with the right to vote. According to Waite, “[i]t is only when the wrongful refusal at such an election is because of race, color, or previous condition of servitude, that Congress can interfere, and provide for its punishment.” Because Section Three of the 1870 Enforcement Act (doc. 1) prohibited any interference with the right to vote, and not just with those actions involving racial discrimination, this section exceeded Congress’s powers to pass “appropriate legislation.” The Court’s decision appeared to leave states free to deny blacks the right to vote on any grounds (e.g., education, payment of a fee or tax, property) so long as the regulation appeared racially neutral. The same day that the Court limited its interpretation of the Fifteenth Amendment in Reese, it also handed down its opinion in United States v. Cruikshank, a case further narrowing the Supreme Court’s interpretation of the Fourteenth Amendment’s Privileges or Immunities Clause (doc. 9). In Cruikshank, a mob of white Democrats had attacked a group of black Republicans who had barricaded themselves in the Colfax Louisiana Courthouse in an effort to prevent the mob from denying them the right to hold office. The resulting “Colfax Massacre” left scores dead, including “fifty blacks who lay down their arms under a white flag of surrender.”1 In response, the federal government indicted some members of the white mob under Section Six of the 1870 Enforcement Act, which criminalized acts where “two or more persons [ ] band or conspire together . . . with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States” (doc. 9; see also doc. 1). The indictment specifically alleged an intent “to hinder and prevent the citizens named in the free exercise and enjoyment of their ‘lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceful and lawful purpose’” and to deny their right of “bearing arms for a lawful purpose.” According to Chief Justice Waite, to the extent the indictment refers to rights listed in the Bill of Rights, these original amendments were “not intended to limit the powers of the State governments in respect to their

604

1. Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877 (New York: HarperPerennial, 2014), 437.

App e n d i x , d o c . 1

own citizens, but to operate upon the National Government alone” (doc. 9). The indictments were therefore defective, since they did not involve situations where the federal government had allegedly abridged the First Amendment right to assemble or the Second Amendment right to bear arms. Nor did the Fourteenth Amendment’s due process or equal protection clauses authorize the federal indictments, since these provisions applied only in cases where the state itself had denied due process or equal protection of the laws. According to Waite, “The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.” Finally, since it had not been specifically alleged that the individuals had attacked the black Republicans because they were black, Congress’s power to enforce the Fifteenth Amendment did not come into play.

1 The Enforcement Bill and Repassage of the 1866 Civil Rights Act 16 Stat. 140, May 31, 1870*

CHAP. CXIV.—An Act to enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other Purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all citizens of the United States who are or shall be otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding. Sec. 2. And be it further enacted, That if by or under the authority of the constitution or laws of any State, or the * George P. Sanger, ed., United States Statutes at Large (Boston: Little, Brown, 1871), 16:​140.

605

laws of any Territory, any act is or shall be required to be done as a prerequisite or qualification for voting, and by such constitution or laws persons or officers are or shall be charged with the performance of duties in furnishing to citizens an opportunity to perform such prerequisite, or to become qualified to vote, it shall be the duty of every such person and officer to give to all citizens of the United States the same and equal opportunity to perform such prerequisite, and to become qualified to vote without distinction of race, color, or previous condition of servitude; and if any such person or officer shall refuse or knowingly omit to give full effect to this section, he shall, for every such offence, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action on the case, with full costs, and such allowance for counsel fees as the court shall deem just, and shall also, for every such offence, be deemed guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court. Sec. 3. And be it further enacted, That whenever, by or under the authority of the constitution or laws of any State, or the laws of any Territory, any act is or shall be required to [be] done by any citizen as a prerequisite to qualify or entitle him to vote, the offer of any such citizen to perform the act required to be done as aforesaid shall, if it fail to be carried into execution by reason of the wrongful act or omission aforesaid of the person or officer charged with the duty of receiving or permitting such performance or offer to perform, or acting thereon, be deemed and held as a performance in law of such act; and the person so offering and failing as aforesaid, and being otherwise qualified, shall be entitled to vote in the same manner and to the same extent as if he had in fact performed such act; and any judge, inspector, or other officer of election whose duty it is or shall be to receive, count, certify, register, report, or give effect to the vote of any such citizen who shall wrongfully refuse or omit to receive, count, certify, register, report, or give effect to the vote of such citizen upon the presentation by him of his affidavit stating such offer and the time and place thereof, and the name of the officer or person whose duty it was to act thereon, and that he was wrongfully prevented by such person or officer from performing such act, shall for every such offence forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an

Appendix

action on the case, with full costs, and such allowance for counsel fees as the court shall deem just, and shall also for every such offence be guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court. Sec. 4. And be it further enacted, That if any person, by force, bribery, threats, intimidation, or other unlawful means, shall hinder, delay, prevent, or obstruct or shall combine and confederate with others to hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote or from voting at any election as aforesaid, such person shall for every such offence forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action on the case, with full costs, and such allowance for counsel fees as the court shall deem just, and shall also for every such offence be guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court. ... Sec. 5. And be it further enacted, That if any person shall prevent, hinder, control, or intimidate, or shall attempt to prevent, hinder, control, or intimidate, any person from exercising or in exercising the right of suffrage, to whom the right of suffrage is secured or guaranteed by the fifteenth amendment to the Constitution of the United States, by means of bribery, threats, or threats of depriving such person of employment or occupation, or of ejecting such person from rented house, lands, or other property, or by threats of refusing to renew leases or contracts for labor, or by threats of violence to himself or family, such person so offending shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court. Sec. 6. And be it further enacted, That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States,

or because of his having exercised the same, such persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court,—the fine not to exceed five thousand dollars, and the imprisonment not to exceed ten years,—and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, or trust created by the Constitution or laws of the United States. ... Sec. 16. And be it further enacted, That all persons within the jurisdiction of the United States shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding. No tax or charge shall be imposed or enforced by any State upon any person immigrating thereto from a foreign country which is not equally imposed and enforced on every person immigrating to such State from any other foreign country; and any law of any State in conflict with this provision is hereby declared null and void. Sec. 17. And be it further enacted, That any person who under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitants of any State or Territory to the deprivation of any right secured or protected by the last preceding section of this act, or to different punishment, pains, or penalties on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of citizens, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court. Sec. 18. And be it further enacted, That the act to protect all persons in the United States in their civil rights, and furnish the means of their vindication, past April nine, eighteen hundred and sixty-­ six, is hereby reenacted; and sections sixteen and seventeen hereof shall be enforced according to the provisions of said act.

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2 US House, Judiciary Committee, Petition of Victoria Woodhull on the Subject of Female Suffrage January 2, 1871*

constitutional equality To the Hon. the Judiciary committee of the Senate and the House of Representatives of the Congress of the United States: The undersigned, Victoria C. Woodhull, having most respectfully memorialized Congress for the passage of such laws as in its wisdom shall seem necessary and proper to carry into effect the rights vested by the Constitution of the United States in the citizens to vote, without regard to sex, begs leave to submit to your honorable body the following in favor of her prayer in said Memorial which has been referred to your Committee: The public law of the world is founded upon the conceded fact that sovereignty cannot be forfeited or renounced. The sovereign power of this country is perpetual in the politically-­organized people of the United States, and can neither be relinquished nor abandoned by any portion of them. The people in this Republic who confer sovereignty are its citizens: in a monarchy the people are the subjects of sovereignty. All citizens of a republic by rightful act or implication confer sovereign power. All people of a monarchy are subjects who exist under its supreme shield and enjoy its immunities. The subject of a monarch takes municipal immunities from the sovereign as a gracious favor; but the woman citizen of this country has the inalienable “sovereign” right of self-­government in her own proper person. Those who look upon woman’s status by the dim * Congressional Reports on Woman Suffrage: The Majority and Minority Reports of the Judiciary Committee of the House of Representatives on the Woodhull Memorial (New York: Woodhull, Claflin, 1871), 40b–­40 f. [Victoria Woodhull delivered her address in person to the judiciary committee and, in so doing, became the first woman to personally address a congressional committee. For a report of the meeting, see “Enfranchisement of Women. A Delegation of Fair Ones before the House Judiciary Committee,” New York Herald, Jan. 12, 1871, 3. —Ed.]

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light of the common law, which unfolded itself under the feudal and military institutions that establish right upon physical power, cannot find any analogy in the status of the woman citizen of this country, where the broad sunshine of our Constitution has enfranchised all. As sovereignty cannot be forfeited, relinquished or abandoned, those from whom it flows—the citizens— are equal in conferring the power and should be equal in the enjoyment of its benefits and in the exercise of its rights and privileges. One portion of citizens have no power to deprive another portion of rights and privileges such as are possessed and exercised by themselves. The male citizen has no more right to deprive the female citizen of the free public, political expression of opinion than the female citizen has to deprive the male citizen thereof. The sovereign will of the people is expressed in our written Constitution, which is the supreme law of the land. The Constitution makes no distinction of sex. The Constitution defines a woman born or naturalized in the United States, and subject to the jurisdiction thereof, to be a citizen. It recognizes the right of citizens to vote. It declares that the right 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.” Women, white and black, belong to races; although to different races. A race of people comprises all the people, male and female. The right to vote cannot be denied on account of race. All people included in the term race have the right to vote, unless otherwise prohibited. Women of all races are white, black or some intermediate color. Color comprises all people, of all races and both sexes. The right to vote cannot be denied on account of color. All people included in the term color have the right to vote unless otherwise prohibited. With the right to vote sex has nothing to do. Race and color include all people of both sexes. All people of both sexes have the right to vote, unless prohibited by special limiting terms less comprehensive than race or color. No such limiting terms exist in the Constitution. Women, white and black, have from time immemorial groaned under what is properly termed in the Constitution “previous condition of servitude.” Women are the equals of men before the law, and are equal in all their rights as citizens. Women are debarred from voting in some parts of the United States, although they are allowed to exercise that right elsewhere.

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Women were formerly permitted to vote in places where they are now debarred therefrom. The Naturalization Laws of the United States expressly provide for the naturalization of women. But the right to vote has only lately been distinctly declared by the Constitution to be inalienable, under three distinct conditions—in all of which woman is distinctly embraced. The citizen who is taxed should also have a voice in the subject matter of taxation. “No taxation without representation” is a right which was fundamentally established at the very birth of our country’s independence; and by what ethics does any free government impose taxes on women without giving them a voice upon the subject or a participation in the public declaration as to how and by whom these taxes shall be applied for common public use? Women are free to own and to control property, separate and apart from males, and they are held responsible in their own proper persons, in every particular, as well as men, in and out of court. Women have the same inalienable right to life, liberty and the pursuit of happiness that men have. Why have they not this right politically, as well as men? Women constitute a majority of the people of this country—they hold vast portions of the nation’s wealth and pay a proportionate share of the taxes. They are intrusted with the most holy duties and the most vital responsibilities of society; they bear, rear and educate men; they train and mould their characters; they inspire the noblest impulses in men; they often hold the accumulated fortunes of a man’s life for the safety of the family and as guardians of the infants, and yet they are debarred from uttering any opinion, by public vote, as to the management by public servants of these interests; they are the secret counsellors, the best advisers, the most devoted aids in the most trying periods of men’s lives, and yet men shrink from trusting them in the common questions of ordinary politics. Men trust women in the market, in the shop, on the highway and the railroad, and in all other public places and assemblies, but when they propose to carry a slip of paper with a name upon it to the polls, they fear them. Nevertheless, as citizens women have the right to vote; they are part and parcel of that great element in which the sovereign power of the land had birth: and it is by usurpation only that men debar them from their right to vote. The American nation, in its march onward and upward, cannot publicly choke the intellectual and political ac-

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tivity of half its citizens by narrow statutes. The will of the entire people is the true basis of republican government, and a free expression of that will by the public vote of all citizens, without distinctions of race, color, occupation or sex, is the only means by which that will can be ascertained. As the world has advanced in civilization and culture; as mind has risen in its dominion over matter; as the principle of justice and moral right has gained sway and merely physically organized power has yielded thereto; as the might of right has supplanted the right of might so have the rights of women become more fully recognized, and that recognition is the result of the development of the minds of men, which through the ages she has polished, and thereby heightened the lustre of civilization. It was reserved for our great country to recognize by constitutional enactment that political equality of all citizens which religion, affection and common sense should have long since accorded; it was reserved for America to sweep away the mist of prejudice and ignorance, and that chivalric condescension of a darker age, for in the language of Holy Writ, “The night is far spent, the day is at hand, let us therefore cast off the work of darkness, and let us put on the armor of light. Let us walk honestly as in the day.” It may be argued against the proposition that there still remains upon the statute books of some States the word “male” to an exclusion, but as the Constitution in its paramount character can only be read by the light of the established principle, ita lex Scripta est; and as the subject of sex is not mentioned and the Constitution is not limited either in terms or by necessary implication in the general rights of citizens to vote, this right cannot be limited on account of anything in the spirit of inferior or previous enactments upon a subject which is not mentioned in the supreme law. A different construction would destroy a vested right in a portion of the citizens, and this no legislature has a right to do without compensation, and nothing can compensate a citizen for the loss of his or her suffrage—its value is equal to the value of life. Neither can it be presumed that women are to be kept from the polls as a mere police regulation. It is to be hoped, at least, that police regulations in their case need not be very active. The effect of the amendments to the Constitution must be to annul the power over this subject in the States whether past, present or future, which is contrary to the amendments. The amendments would even arrest the action of the Supreme Court in cases pending before it prior to the

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adoption of the amendment, and operate as an absolute prohibition to the exercise of any other jurisdiction than merely to dismiss the suit. 3 Dall., 382; 6 Wheaton, 405; 9 Id., 868; 3d Circ., Pa., 1832. And if the restrictions contained in the constitution as to color, race or servitude, were designed to limit the State governments in reference to their own citizens, and were intended to operate also as restrictions on the federal power, and to prevent interference with the rights of the States and its citizens, how then can the States restrict citizens of the United States in the exercise of rights not mentioned in any restrictive clause in reference to actions on the part of those citizens having reference solely to the necessary functions of the General Government, such as the election of representatives and senators to Congress, whose election the Constitution expressly gives Congress the power to regulate? S. C., 1847: Fox vs. Ohio, 5 Howard, 410. Your memorialist complains of the existence of State Laws, and prays Congress, by appropriate legislation, to declare them, as they are, annulled, and to give vitality to the Constitution under its power to make and alter the regulations of the States contravening the same. It may be urged in opposition that the Courts have power, and should declare upon this subject. The Supreme Court has the power, and it would be its duty so to declare the law; but the Court will not do so unless a determination of such point as shall arise make it necessary to the determination of a controversy, and hence a case must be presented in which there can be no rational doubt. All this would subject the aggrieved parties to much dilatory, expensive and needless litigation, which your memorialist prays your Honorable Body to dispense with by appropriate legislation, as there can be no purpose in special arguments “ad inconvenienti,” enlarging or contracting the import of the language of the Constitution. Therefore, Believing firmly in the right of citizens to freely approach those in whose hands their destiny is placed, under the Providence of God, your memorialist has frankly, but humbly, appealed to you, and prays that the wisdom of Congress may be moved to action in this matter for the benefit and the increased happiness of our beloved country. Most respectfully submitted, VICTORIA C. WOODHULL. Dated New York, January 2, 1871.

3 US House, Judiciary Committee, “The Woodhull Report” January 30 and February 1, 1871*

Mr. Bingham, from the Committee on the Judiciary, to which was referred the memorial of Victoria C. Woodhull, made the following

REPORT.† The Committee on the Judiciary, to whom was referred the Memorial of Victoria C. Woodhull, hearing considered the same, made the following report: The memorialist asks the enactment of a law by Congress which shall secure to citizens of the United States in the several States the right to vote “without regard to sex.” Since the adoption of the fourteenth amendment of the Constitution there is no longer any reason to doubt that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside; for that is the express declaration of the amendment. The clause of the fourteenth amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two. The fourteenth, it is believed, did not add to the privileges or immunities before mentioned, but was deemed necessary for their enforcement as an express limitation upon the powers of the States. It had been judicially determined that the first eight articles of amendment of the Constitution were not limitations on the power of the States, and it was apprehended that the

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* [Members of the committee joining the majority report were John A. Bingham, Burton C. Cook, Charles A. Eldridge, Giles W. Hotchkiss, Stephen W. Kellogg, Michael C. Kerr, Ulysses Mercur, and John A. Peters. Members of the committee joining the minority report were William Loughridge and Benjamin Butler. —Ed.] † Cong. Globe, 41st Cong., 3rd Sess., H.R. Report No. 22 (1871).

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same might be held of the provision of the second section, fourth article. To remedy this defect of the Constitution, the express limitations upon the States contained in the first section of the fourteenth amendment, together with the grant of power in Congress to enforce them by legislation, were incorporated in the Constitution. The words “citizens of the United States,” and “citizens of the States,” as employed in the fourteenth amendment, did not change or modify the relations of citizens of the State and nation as they existed under the original Constitution. Attorney General Bates gave the opinion that the Constitution uses the word “citizen” only to express the political quality of the individual in his relation to the nation; to declare that he is a member of the body-­ politic, and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other. The phrase “a citizen of the United States,” without addition or qualification, means neither more nor less than a member of the nation. (Opinion of Attorney General Bates on citizenship.) The Supreme Court of the Unites States has ruled that, according to the express words and clear meaning of the second section, fourth article of the Constitution, no privileges are secured by it except those which belong to citizenship. (Conner et al. vs. Elliott et al., 18 Howard, 593.) In Corfield  v. Coryell, (4 Washington Circuit Court Reports, 380) the court say: The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong of right to the citizens of all free Governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended 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 the purposes of trade, agriculture, professional pursuits, or 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 the other citizens of the State may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added the elective franchise as regulated and established by the laws or constitution of the State in which it is to be exercised. * * * But we cannot accede to the proposition which was insisted on by the counsel, that under this provision of the Constitution (section two, article four) the citizens of the several States are permitted to participate in all the rights which belong exclusively to the citizens of any other particular State.

The learned Justice Story declared that the intention of the clause (“the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States”) was to confer on the citizens of each State a general citizenship, and communicated all the privileges and immunities which a citizen of the same State would be entitled to under the same circumstances. (Story on the Constitution, vol. 2, p. 605.) In the case of the Bank of the United States vs. Primrose, in the Supreme Court of the United States, Mr. Webster said: That this article in the Constitution (article four, section two) does not confer on the citizens of each State political rights in every other State, is admitted. A citizen of Pennsylvania cannot go into Virginia and vote at any election in that state, though when he has acquired a residence in Virginia, and is otherwise qualified as is required by the constitution (of Virginia) he becomes, without formal adoption as a citizen of Virginia, a citizen of that State politically. (Webster’s Works, volume six, page 112.)

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It must be obvious that Mr. Webster was of opinion that the privileges and immunities of citizens, guarantied to them in the several States, did not include the privilege of the elective franchise otherwise than as

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secured by the State constitution. For, after making the statement above quoted, that a citizen of Pennsylvania cannot go into Virginia and vote, Mr. Webster adds, “but for the purposes of trade, commerce, buying and selling, it is evidently not in the power of any State to impose any hindrance or embarrassment, &c., upon citizens of other States, or to place them, going there, upon a different footing from her own citizens.” (Ib.) The proposition is clear that no citizen of the United States can rightfully vote in any State of this Union who has not the qualifications required by the constitution of the State in which the right is claimed to be exercised, except as to such conditions in the constitution of such States as deny the right to vote to citizens resident therein “on account of race, color, or previous condition of servitude.” The adoption of the fifteenth amendment of the Constitution, imposing these three limitations upon the power of the several States, was, by necessary implication, a declaration that the States had the power to regulate by a uniform rule the conditions upon which the elective franchise should be exercised by citizens of the United States resident therein. The limitations specified in the fifteenth amendment exclude the conclusion that a State of this Union, having a government republican in form, may not prescribe conditions upon which alone citizens may vote other than those prohibited. It can hardly be said that a State law which excludes from voting woman citizens, minor citizens, and non-­ resident citizens of the United States, on account of sex, minority, or domicile, is a denial of the right to vote on account of race, color, or previous condition of servitude. It may be further added that the second section of the fourteenth amendment, by the provision that “when the right to vote at any election for the choice of electors of President and Vice President of the United States, Representatives in Congress, or executive and judicial officers of the 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, a citizen 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,” implies that the several States may restrict the elective franchise as to other than male citizens. In disposing of this question effect must be given, if possible,

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to every provision of the Constitution. Article one, section two, of the Constitution provides: That the House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.

This provision has always been construed to vest in the several States the exclusive right to prescribe the qualifications of electors for the most numerous branch of the State Legislature, and therefore for members of Congress. And this interpretation is supported by section four, article one, of the Constitution, which ­provides: That the time, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at anytime by law make or alter such regulations except as to the place of choosing Senators.

Now, it is submitted, if it had been intended that Congress should prescribe the qualification of electors, that the grant would have read: the Congress may at anytime by law make or alter such regulations, and also prescribe the qualification of electors, &c. The power, on the contrary, is limited exclusively to the time, place, and manner and does not extend to the qualification of the electors. This power to prescribe the qualification of electors in the several States has always been exercised, and is to-­day, by the several States of the Union; and we apprehend, until the Constitution shall be changed, will continue to be so exercised, subject only to the express limitations imposed by the Constitution upon the several States, before noticed. We are of opinion, therefore, that it is not competent for the Congress of the United States to establish by law the right to vote without regard to sex in the several States of this Union without the consent of the people of such States and against their constitutions and laws; and that such legislation would be, in our judgment, a violation of the Constitution of the United States, and of the rights reserved to the States respectively by the Constitution. It is undoubtedly the right of the people of the several States so to reform their constitutions and laws as to secure the equal exercise of the right of suffrage at all elections held therein, under the Constitution of the United States, to all citizens, without regard to sex; and as pub-

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lic opinion creates constitutions and governments in the several States, it is not to be doubted that whenever, in any State, the people are of opinion that such a reform is advisable, it will be made. If, however, as is claimed in the memorial referred to, the right to vote “is vested by the Constitution in the citizens of the United States without regard to sex,” that right can be established in the courts without further legislation. The suggestion is made that Congress by a mere declaratory act shall say that the construction claimed in the memorial is the true construction of the Constitution, or, in other words, that by the Constitution of the United States the right to vote is vested in citizens of the United States “without regard to sex,” anything in the constitution and laws of any State to the contrary notwithstanding. In the opinion of the committee such declaratory act is not authorized by the Constitution nor within the legislative power of Congress. We therefore recommend the adoption of the following resolution: Resolved, That the prayer of the petitioner be not granted; that the memorial be laid on the table, and that the Committee on the Judiciary be discharged from the further consideration of the subject.

The question presented is one of exceeding interest and importance, involving as it does the constitutional rights not only of the memorialist but of more than one half of the citizens of the United States—a question of constitutional law in which the civil and natural rights of the citizen are involved. Questions of propriety or of expediency have nothing to do with it. The question is not “Would it be expedient to extend the right of suffrage to women,” but “Have women citizens that right by the Constitution as it is.” ... By the fourteenth amendment of the Constitution of the United States, what constitutes citizenship of the United States, is for the first time declared, and who are included by the term citizen. Upon this question, before that time, there had been much discussion judicial, political, and general, and no distinct and definite definition of qualification had been settled. The people of the United States determined this question by the fourteenth Amendment to the Constitution, which declares that— All persons born or naturalized 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 law.

Mr. Loughridge, from the Committee on the Judiciary, submitted the following as the

VIEWS OF THE MINORITY.* In the matter of the memorial of Victoria C. Woodhull, referred by the House to the Committee on the Judiciary, the undersigned, members of the committee, being unable to agree to the report of the committee, present the following as their views upon the subject of the memorial: The memorialist sets forth that she is a native born citizen of the United States, and a resident thereof; that she is of adult age and has resided in the State of New York for three years past; that by the Constitution of the United States she is guaranteed the right of suffrage; but that she is, by the laws of the State of New York, denied the exercise of that right; and that by the laws of different States and Territories the privilege of voting is denied to all the female citizens of the United States; and petitions for relief by the enactment of some law to enforce the provisions of the Constitution, by which such right is guaranteed. * Cong. Globe, 41st Cong., 3rd Sess., H.R. Report No. 22, pt. 2 (1871).

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This amendment, after declaring who are citizens of the United States, and thus fixing but one grade of citizenship, which insures to all citizens alike all the privileges, immunities and rights which accrue to that condition, goes on in the same section and prohibits these privileges and immunities from abridgment by the States. Whatever these “privileges and immunities” are, they attach to the female citizen equally with the male. It is implied by this amendment that they are inherent, that they belong to citizenship as such, for they are not therein specified or enumerated. The majority of the committee hold that the privileges guaranteed by the fourteenth amendment do not refer to any other than the privilege embraced in section 2, of article 4, of the original text. The committee certainly did not duly consider this unjustified statement. Section 2, of article 4, provides

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for the privileges of “citizens of the States,” while the first section of the XIV. Amendment protects the privileges of “citizens of the United States.” The term citizens of the States and citizens of the United States are by no means convertible. A circuit court of the United States seems to hold a different view of this question from that stated by the committee. In the case of The Live Stock Association vs. Crescent City (1st Abbott, 396,) Justice Bradley, of the Supreme Court of the United States, delivering the opinion, uses the following language in relation to the first clause of the 14th Amendment:

people, but it is a free government. * * * * * It was very ably contended on the part of the defendants that the fourteenth amendment was intended only to secure to all citizens equal capacities before the law. That was at first our view of it. But it does not so read. The language is, “No State shall abridge the privileges or immunities of citizens of the United States.” What are the privileges and immunities of the citizens of the United States? Are they capacities merely? Are they not also rights?

The Court in this seems to intimate very strongly that the amendment was intended to secure the natural rights of citizens, as well as their equal capacities before the law. In a case in the Supreme Court of Georgia, in 1869, the question was before the court whether a negro was competent to hold office in the State of Georgia. The case was ably argued on both sides, Mr. Akerman, the present Attorney General of the United States, being of counsel for the petitioner. Although the point was made and argued fully, that the right to vote and hold office were both included in the privileges and immunities of citizens, and were thus guaranteed by the fourteenth amendment, yet that point was not directly passed upon by the court, the court holding that under the laws and constitution of Georgia, the negro citizen had the right claimed. In delivering the opinion, Chief Justice Brown said:

The new prohibition that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” is not identical with the clause in the Constitution which declared that “the citizens of each State shall be entitled to all the privileges and Immunities of citizens in the several States.” It embraces much more. It is possible that those who framed the article were not themselves aware of the far-­reaching character of its terms, yet if the amendment does in fact bear a broader meaning, and does extend its protecting shield over those who were never thought of when it was conceived and put in form, and does reach social evils which were never before prohibited by constitutional enactment, it is to be presumed that the American people, in giving it their imprimatur, understood what they were doing and meant to decree what in fact they have decreed. The “privileges and immunities” secured by the original Constitution were only such as each State gave to its own citizens, * * * * * but the fourteenth amendment prohibits any State from abridging the privileges or immunities of citizens of the United States, whether its own citizens or any others. It not merely requires equality of privileges, but it demands that the privileges and immunities of all citizens shall be absolutely unabridged and ­unimpaired.

It is not necessary to the decision of this case to inquire what are the “privileges and immunities” of a citizen, which are guaranteed by the fourteenth amendment to the Constitution of the United States. Whatever they may be, they are protected against all abridgment by legislation. * * * Whether the “privileges and immunities” of the citizens embrace political rights, including the right to hold office, I need not now inquire. If they do, that right is guaranteed alike by the Constitution of the United States and of Georgia, and is beyond the control of the legislature.

In the opinion of Justice McCay, among other propositions, he lays down the following:

In the same opinion, after enumerating some of the “privileges” of the citizens, such as were pertinent to the case on trial, but declining to enumerate all, the Court further says: These privileges can not be invaded without sapping the foundation of republican government. A republican government is not merely a government of the

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2d. The rights of the people of this State, white and black, are not granted to them by the constitution thereof; the object and effect of that instrument is not to give, but to restrain, deny, regulate and guarantee rights, and all persons recognized by that constitution as citizens of the State have equal legal

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and political rights, except as otherwise expressly declared. 3d. It is the settled and uniform sense of the word “citizen,” when used in reference to the citizens of the separate States of the United States, and to their rights as such citizens, that it describes a person entitled to every right, legal and political, enjoyed by any person in that State, unless there be some express exceptions made by positive law covering the particular persons, whose rights are in question.

applied only to the case of a removal from one State into another. By such removal they become citizens of the adopted State without naturalization, and have a right to sue and be sued as citizens; and yet this privilege is qualified and not absolute, for they can not enjoy the right of suffrage or eligibility to office without such term of residence as shall be prescribed by the constitution and laws of the State into which they shall remove.

This case fully recognizes the right of suffrage as one of the “privileges of the citizen,” subject to the right of the State to regulate as to the term of residence—the same principle was laid down in Corfield vs. Correll. In the case of Corfield v. Correll in the Supreme Court of the United States, Justice Washington, in delivering the opinion of the court, used the following language:

In the course of the argument of this case, Mr. Akerman used the following language upon the point, as to whether citizenship carried with it the right to hold office: “It may be profitable to inquire how the term (citizen) has been understood in Georgia. * * * It will be seen that men whom Georgians have been accustomed to revere believed that citizenship in Georgia carried with it the right to hold office in the absence of positive restrictions.” The majority of the committee having started out with the erroneous hypothesis that the term “privileges of citizens of the United States,” as used in the fourteenth amendment, means no more than the term “privileges of citizens,” as used in section 2 of article 4, discuss the question thus: “The right of suffrage was not included in the privileges of citizens as used in section 2, article 4, therefore that right is not included in the privileges of citizens of the United States, as used in the fourteenth amendment.” Their premise being erroneous their whole argument fails. But if they were correct in their premise, we yet claim that their second position is not sustained by the authorities, and is shown to be fallacious by a consideration of the principles of free government. We claim that from the very nature of our Government, the right of suffrage is a fundamental right of citizenship, not only included in the term “privileges of citizens of the United States,” as used in the fourteenth amendment, but also included in the term as used in section 2, of article 4, and in this we claim we are sustained both by the authorities and by reason. In Abbott vs. Bayley, (6 Pick., 92,) the Supreme Court of Massachusetts say:

“The privileges and immunities conceded by the Constitution of the United States to citizens in the several States,” are to be confined to those which are in their nature fundamental, and belong of right to the citizens of all free governments. Such are the rights of protection of life and liberty, and to acquire and enjoy property, and to pay no higher impositions than other citizens, and to pass through or reside in the State at pleasure, and to enjoy the elective franchise as regulated and established by the laws or constitution of the State in which it is to be exercised.

And this is cited approvingly by Chancellor Kent. (2 Kent, sec. 72.) This case is cited by the majority of the Committee, as sustaining their view of the law, but we are unable so to understand it. It is for them an exceedingly unfortunate citation. In that case the court enumerated some of the “privileges of citizens,” such as are “in their nature fundamental and belong of right to the citizens of all free governments,” (mark the language,) and among the rights, place the “right of the elective franchise” in the same category with those great rights of life, liberty, and property. And yet the Committee cite this case to show that this right is not a fundamental right of the citizen! But it is added by the Court that the right of the elective franchise “is to be enjoyed as regulated and established by the State in which it is to be exercised.” These words are supposed to qualify the right, or rather take it out of the list of fundamental rights, where

“The privileges and immunities” secured to the people of each State, in every other State, can be

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the Court had just placed it. The Court is made to say by this attempt in the same sentence, “the elective franchise is a fundamental right of the citizen, and it is not a fundamental right.” It is a “fundamental right,” provided the State sees fit to grant the right. It is a “fundamental right of the citizen,” but it does not exist, unless the laws of the State give it. A singular species of “fundamental rights!” Is there not a clear distinction between the regulation of a right and its destruction? The State may regulate the right, but it may not destroy it. What is the meaning of “regulate” and “establish?” Webster says: Regulate—to put in good order. Establish—to make stable or firm. This decision then is, that “the elective franchise is a fundamental right of the citizen of all free governments, to be enjoyed by the citizen, under such laws as the State may enact to regulate the right and make it stable or firm.” Chancellor Kent, in the section referred to, in giving the substance of this opinion, leaves out the word establish, regarding the word regulate as sufficiently giving the meaning of the Court. This case is, in our opinion, a very strong one against the theory of the majority of the committee. The committee cite the language of Mr. Webster, as counsel in United States vs. Primrose. We indorse every word in that extract. We do not claim that a citizen of Pennsylvania can go into Virginia and vote in Virginia, being a citizen of Pennsylvania. No person has ever contended for such an absurdity. We claim that when the citizen of the United States becomes a citizen of Virginia, the State of Virginia has neither right nor power to abridge the privileges of such citizen by denying him entirely the right of suffrage, and thus all political rights. The authorities cited by the majority of the committee do not seem to meet the case—certainly do not sustain their theory. The case of Cooper vs. The Mayor of Savannah (4 Geo., 72,) involved the question whether a free negro was a citizen of the United States? The court, in the opinion, says:

In the Supreme Court of the United States, in the case of Scott vs. Sanford (19 Howard, p. 476,) Mr. Justice Daniel, in delivering his opinion, used the following language as to the rights and qualities of citizenship: For who it may be asked is a citizen? What do the character and status of citizens import? Without fear of contradiction, it does not import the condition of being private property, the subject of individual power and ownership. Upon a principle of etymology alone, the term citizen, as derived from civitas, conveys the idea of connection or identification with the State or government, and a participation in its functions. But beyond this there is not, it is believed, to be found, in the theories of writers on government, or in any actual experiment heretofore tried, an exposition of the term citizen which has not been understood as conferring the actual possession and enjoyment, or the perfect right of acquisition and enjoyment, of an entire equality of privileges, civil and political.

And in the same case Chief Justice Taney said: “The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing; they both describe the political body, who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the sovereign people, and every citizen is one of this people, and a constituent member of this sovereignty.” (19 Howard, 404.) In an important case in the Supreme Court of the United States, Chief Justice Jay, in delivering the opinion of the Court, said: “At the Revolution the sovereignty devolved on the people, and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves may be so called,) and have none to govern but themselves. The citizens of America are equal as fellow-­citizens, and joint tenants of the sovereignty.” (Chisholm vs. Georgia, 2 Dallas, 470.) In Conner vs. Elliott (18 Howard), Justice Curtis, in declining to give an enumeration of all the “privileges” of the citizen, said, “According to the express words and clear meaning of the clause, no privileges are secured except those that belong to citizenship.” The Supreme Court said, in Corfield vs. Coryell, that the elective franchise is such privilege; therefore, according to Justice Curtis, it belongs to citizenship. In a

Free persons of color have never been recognized as citizens of Georgia; they are not entitled to bear arms, vote for members of the legislature, or hold any civil office; they have no political rights, but have personal rights, one of which is personal l­ iberty.

That they could not vote, hold office, etc., was held evidence that they were not regarded as citizens. 615

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case in the Supreme Court of Kentucky (1 Littell’s Ky. Reports, p. 333), the Court say:

of citizenship is the right of voting in the government of the local, provincial, or national community of which one is a member. In this last sense, the right of citizenship signifies a participation in the right of voting, in the general government, as member of the State. (Rev. & Fr. Etr., tom. v, p. 383.)

No one can, therefore, in the correct sense of the term, be a citizen of a State who is not entitled upon the terms prescribed by the institutions of the State to all the rights and privileges conferred by these institutions upon the highest class of society.

In a recent work of some research, written in opposition to female suffrage, the author takes the ground that women are not citizens, and urges that as a reason why they can properly be denied the elective franchise, his theory being that if full citizens they would be entitled to the ballot. He uses the following language:

Mr. Wirt, when Attorney-­General of the United States, in an official opinion to be found on p. 508, 1st volume Opinions of Attorneys Generals, came to the conclusion that the negroes were not citizens of the United States, for the reason that they had very few of the “privileges” of citizens, and among the “privileges of citizens” of which they were deprived, that they could not vote at any election. Webster defines a citizen to be a person, native or naturalized, who has the privilege of voting for public officers, and who is qualified to fill offices in the gift of the people. Worcester defines the word thus: “An inhabitant of a republic who enjoys the rights of a citizen or freeman, and who has a right to vote for public officers as a citizen of the United States.” Bouvier, in his Law Dictionary, defines the term citizen: “One who, under the Constitution and laws of the United States, has a right to vote for Representatives in Congress and other public officers, and who is qualified to fill offices in the gift of the people.” Aristotle defines a “citizen” to be “one who is a partner in the legislative and judicial power, and who shares in the honors of the State.” (Aristotle de Repub., lib. 3, cap. 5, D.) The essential properties of Athenian citizenship consisted in the share possessed by every citizen in the legislature, in the election of magistrates, and in the courts of justice. (See Smith’s Dictionary of Greek Antiquities, p. 289). The possession of the jus suffragii, at least, if not also of the jus honorum, is the principle which governs at this day in defining citizenship in the countries deriving their jurisprudence from the civil law. (Wheaton’s International Law, p. 892). The Dutch publicist, Thorbecke, says: What constitutes the distinctive character of our epoch is the development of the right of citizenship. In its most extended, as well as its most restricted sense, it includes a great many properties. The right

It is a question about which there may be some diversity of opinion, what constitutes citizenship or who are citizens. In a loose and improper sense the word citizen is some times used to denote any inhabitant of the country, but this is not a correct use of the word. Those, and no others, are properly citizens who were parties to the original compact by which the government was formed, or their successors who are qualified to take part in the affairs of government by their votes in the election of public officers. Women and children are represented by their domestic directors or heads in whose wills theirs is supposed to be included. They, as well as others not entitled to vote, are not properly citizens, but are members of the State, fully entitled to the protection of its laws. A citizen, then, is a person entitled to vote in the elections. He is one of those in whom the sovereign power of the State resides. (Jones on Suffrage, p. 48.)

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But all such fallacious theories as this are swept away by the fourteenth amendment, which abolishes the theory of different grades of citizenship, or different grades of rights and privileges, and declares all persons born in the country or naturalized in it to be citizens, in the broadest and fullest sense of the term, leaving no room for cavil, and guaranteeing to all citizens the rights and privileges of citizens of the republic. We think we are justified in saying that the weight of authority sustains us in the view we take of this question. But considering the nature of it, it is a question depending much for its solution upon a consideration of the government under which citizenship is claimed. Citizenship in Turkey or Russia is essentially different in its rights and privileges from citizenship in the United States. In

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the former, citizenship means no more than the right to the protection of his absolute rights, and the “citizen” is a subject; nothing more. Here, in the language of Chief Justice Jay, there are no subjects. All, native-­born and naturalized, are citizens of the highest class; here all citizens are sovereigns, each citizen bearing a portion of the supreme sovereignty, and therefore it must necessarily be that the right to a voice in the Government is the right and privilege of a citizen as such, and that which is undefined in the Constitution is undefined because it is self-­evident. Could a State disfranchise and deprive of the right to a vote all citizens who have red hair; or all citizens under six feet in height? All will consent that the States could not make such arbitrary distinctions the ground for denial of political privileges; that it would be a violation of the first article of the fourteenth amendment; that it would be abridging the privileges of citizens. And yet the denial of the elective franchise to citizens on account of sex is equally as arbitrary as the distinction on account of stature, or color of hair, or any other physical distinction. These privileges of the citizen exist independent of the Constitution. They are not derived from the Constitution or the laws, but are the means of asserting and protecting rights that existed before any civil governments were formed—the right of life, liberty and property. Says Paine, in his Dissertation upon the Principles of Government:

vote, through the machinery of a free government. The right of self-­protection, it will not be denied, exists in all equally in a state of nature, and the substitute for it exists equally in all the citizens after a free government is formed, for the free government is by all and for all. The people “ordained and established” the Constitution. Such is the preamble. “We, the people.” Can it be said that the people acquire their privileges from the instrument that they themselves establish? Does the creature extend rights, privileges and immunities to the creator? No; the people retain all the rights which they have not surrendered; and if the people have not given to the Government the power to deprive them of their elective franchise, they possess it by virtue of citizenship. The true theory of this Government, and of all free governments, was laid down by our fathers in the Declaration of Independence, and declared to be “self-­evident.” “All men are endowed by their Creator with certain inalienable rights; among these are life, liberty, and the pursuit of happiness. That to secure these rights governments are instituted among men, deriving all their just powers from the consent of the governed.” Here is the great truth, the vital principle, upon which our Government is founded, and which demonstrates that the right of a voice in the conduct of the government, and the selection of the rulers, is a right and privilege of all citizens. Another of the self-­evident truths laid down in that instrument is: That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

The right of voting for representatives is the primary right, by which other rights are protected. To take away this right is to reduce man to a state of slavery, for slavery consists in being subject to the will of another; and he that has not a vote in the election of representatives is, in this case. The proposal, therefore, to disfranchise any class of men is as criminal as the proposal to take away property.

In a state of nature, before governments were formed, each person possessed a natural right to defend his liberty, his life and his property from the aggressions of his fellow-­men. When he enters into the free government he does not surrender that right, but agrees to exercise it, not by brute force, but by the ballot, by his individual voice in making the laws that dispose of, control and regulate those rights. The right to a voice in the government is but the natural right of protection of one’s life, liberty and property, by personal strength and brute force, so modified as to be exercised in the form of a

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How can the people carry out this right without the exercise of the ballot; and is not the ballot then a fundamental right and privilege of the citizen, not given to him by the Constitution, but inherent, as a necessity, from the very nature of the government? ... It is claimed by the majority of the committee that the adoption of the fifteenth amendment was by necessary implication a declaration that the States had the power to deny the right of suffrage to citizens for any other reasons than those of race, color, or previous condition of servitude. We deny that the fundamental rights of the American citizen can be taken away by “implication.”

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There is no such law for the construction of the Constitution of our country. The law is the reverse—that the fundamental rights of citizens are not to be taken away by implication, and a constitutional provision for the protection of one class can certainly not be used to destroy or impair the same rights in another class. It is too violent a construction of an amendment, which prohibits States from, or the United States from, abridging the right of a citizen to vote by reason of race, color, or previous condition of servitude, to say that by implication it conceded to the States the power to deny that right for any other reason. On that theory the States could confine the right of suffrage to a small minority, and make the State governments aristocratic, overthrowing their republican form. The fifteenth article of amendment to the Constitution clearly recognizes the right to vote, as one of the rights of a citizen of the United States. This is the language: “The right 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.” Here is stated, first, the existence of a right. Second, its nature. Whose right is it? The right of citizens of the United States. What is the right? The right to vote. And this right of citizens of the United States, States are forbidden to abridge. Can there be a more direct recognition of a right? Can that be abridged which does not exist? The denial of the power to abridge the right, recognizes the existence of the right. Is it said that this right exists by virtue of State citizenship, and State laws and Constitutions? Mark the language: “The right of citizens of the United States to vote;” not citizens of States. The right is recognized as existing independent of State citizenship. But it may be said, if the States had no power to abridge the right of suffrage, why the necessity of prohibiting them? There may not have been a necessity; it may have been done through caution, and because the peculiar condition of the colored citizens at that time rendered it necessary to place their rights beyond doubt or cavil. It is laid down as a rule of construction by Judge Story that the natural import of a single clause is not to be narrowed so as to exclude implied powers resulting from its character simply because there is another clause which enumerates certain powers which might otherwise be deemed implied powers within its scope, for in such cases we are not to assume that the affir-

mative specification excludes all other implications. (2d Story on Constitution, sec. 449.) There are numerous instances in the Constitution where a general power is given to Congress, and afterward a particular power given, which was included in the former; yet the general power is not to be narrowed, because the particular power is given. On this same principle the fact that by the fifteenth amendment the States are specifically forbidden to deny the right of suffrage on account of race, color, or previous condition of servitude, does not narrow the general provision in the fourteenth amendment which guarantees the privileges of all the citizens against abridgment by the States on any account. The rule of interpretation relied upon by the committee in their construction of the fifteenth amendment is, “that the expression of one thing is the exclusion of another,” or the specification of particulars is the exclusion of generals. Of these maxims, Judge Story says: They are susceptible of being applied, and often are ingeniously applied, to the subversion of the text and the objects of the instrument. The truth is, in order to ascertain how far an affirmative or negative provision excludes or implies others, we must look to the nature of the provision, the subject-­matter, the objects, and the scope of the instrument; these and these only can properly determine the rule of construction (2 Story, 448).

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It is claimed by the committee that the second section of the fourteenth amendment implies that the several States may restrict the right of suffrage as to other than male citizens. We may say of this as we have said of the theory of the committee upon the effect of the fifteenth amendment. It is a proposal to take away from the citizens guarantees of fundamental rights, by implication, which have been previously given in absolute terms. The first section includes all citizens in its guarantees, and includes all the “privileges and immunities” of citizenship and guards them against abridgment, and under no recognized or reasonable rule of construction can it be claimed that by implication from the provisions of the second section the States may not only abridge, but entirely destroy one of the highest privileges of the citizen to one-­half the citizens of the country. What we have said in relation to the committee’s construction of the effect of the fifteenth amendment applies equally to

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this. The object of the first section of this amendment was to secure all the rights, privileges, and immunities of all the citizens against invasion by the States. The object of the second section was to fix a rule or system of apportionment for Representatives and taxation; and the provision referred to, in relation to the exclusion of males from the right of suffrage, might be regarded as in the nature of a penalty in case of denial of that right to that class. While it, to a certain extent, protected that class of citizens, it left the others where the previous provisions of the Constitution placed them. To protect the colored man more fully than was done by that penalty was the object of the fifteenth amendment. In no event can it be said to be more than the recognition of an existing fact, that only the male citizens were, by the State laws, allowed to vote, and that existing order of things was recognized in the rule of representation, just as the institution of slavery was recognized in the original Constitution, in the article fixing the basis of representation, by the provision that only three-­fifths of all the slaves (“other persons”) should be counted. There slavery was recognized as an existing fact, and yet the Constitution never sanctioned slavery, but, on the contrary, had it been carried out according to its true construction, slavery could not have existed under it; so that the recognition of facts in the Constitution must not be held to be a sanction of what is so recognized. The majority of the committee say that this section implies that the States may deny suffrage to others than male citizens. If it implies anything it implies that the States may deny the franchise to all the citizens. It does not provide that they shall not deny the right to male citizens, but only provides that if they do so deny they shall not have representation for them. So, according to that argument, by the second section of the fourteenth amendment the power of the States is conceded to entirely take away the right of suffrage, even from that privileged class, the male citizens. And thus this rule of “implication” goes too far, and fritters away all the guarantees of the Constitution of the right of suffrage, the highest of the privileges of the citizen; and herein is demonstrated the reason and safety of the rule that fundamental rights are not to be taken away by implication, but only by express provision. When the advocates of a privileged class of citizens under the Constitution are driven to implication to sustain the theory of taxation without representation, and American citizenship without political liberty, the cause must be weak indeed.

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... We are told that the acquiescence by the people, since the adoption of the Constitution, in the denial of political rights to women citizens, and the general understanding that such denial was in conformity with the Constitution, should be taken to settle the construction of that instrument. Any force this argument may have it can only apply to the original text, and not to the fourteenth amendment, which is of but recent date. But, as a general principle, this theory is fallacious. It would stop all political progress; it would put an end to all original thought, and put the people under that tyranny with which the friends of liberty have always had to contend—the tyranny of precedent. From the beginning, our Government has been right in theory, but wrong in practice. The Constitution, had it been carried out in its true spirit, and its principles enforced, would have stricken the chains from every slave in the republic long since. Yet, for all this, it was but a few years since declared, by the highest judicial tribunal of the republic, that, according to the “general understanding” the black man in this country had no rights the white man was bound to respect. General understanding and acquiescence is a very unsafe rule by which to try questions of constitutional law, and precedents are not infallible guides toward liberty and the rights of man. ... It is said by the majority of the committee that “if the right of female citizens to suffrage is vested by the Constitution, that right can be established in the courts.” We respectfully submit that, with regard to the competency and qualification of electors for members of this House, the courts have no jurisdiction. This House is the sole judge of the election return and qualification of its own members (article 1, section 5, of Constitution;) and it is for the House alone to decide upon a contest, who are, and who are not, competent and qualified to vote. The judicial department cannot thus invade the prerogatives of the political department. And it is therefore perfectly proper, in our opinion, for the House to pass a declaratory resolution, which would be an index to the action of the House, should the question be brought before it by a contest for a seat. We, therefore, recommend to the House the adoption of the following resolution: Resolved, by the House of Representatives, That the right of suffrage is one of the inalienable rights of citi-

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zens of the United States, subject to regulation by the States, through equal and just laws. That this right is included in the “privileges of citizens of the United States,” which are guaranteed by section 1 of article 14 of amendments to the Constitution of the United States; and that women citizens, who are otherwise qualified by the laws of the State where they reside, are competent voters for Representatives in Congress. WM. Loughridge. Benj. F. Butler.

in the exercise of the powers vested by it “in the Government of the United States or in any department or officer thereof,” to provide by law for the enforcement of the Constitution, on behalf of the whole people, the nation, and for the enforcement as well of the Constitution on behalf of every individual citizen of the Republic in every State and Territory of the Union to the extent of the rights guarantied to him by the Constitution. Until this issue was raised, in 1860–61, the constitutional power of Congress to provide for the common defense and the enforcement of the Constitution and laws of the United States had not been seriously questioned in this House. Now, as then, this power, essential to the nation’s life and the safety of the people, is here challenged. It amazes me that, after all that has transpired in this country for the final settlement of this very question, gentlemen on either side of the House would dare to open it again. It has been settled by your courts of justice; it has been settled by the repeated action of your Congress within the last ten years; it has been settled by the people themselves, by the ballot and by battle, by laws and by arms; and from their decision thus made there cannot rightfully lie an appeal. And yet gentleman substantially again open this question to-­day. The question as presented here and now may be stated thus: is it competent for Congress to provide by law for the better enforcement of the Constitution and laws of the United States and the better security of the life, liberty, and property of the citizens of the United States in the several states of the Union? The Constitution is not self-­executing, therefore laws must be enacted by Congress for the due execution of all the powers vested by the Constitution in the government of the United States, or in any department or any officer thereof. No man can successfully deny the power of Congress so to legislate, for it is expressly provided in the Constitution that “Congress shall have power to make all laws which shall be necessary and proper for carrying into execution” the powers therein expressly granted to Congress, “and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.” My honorable friend from Indiana [Mr. Kerr] discussed this question, upon the Constitution as it was and not upon the Constitution as it is. In the progress of his remarks the gentleman [Mr. Kerr] did disclose to this House and to the country the fact that under the Constitution as it was, it always was competent for the

4 US House, Speech of John Bingham on the Meaning of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment March 31, 1871*

The House having under consideration the bill (H.R. No. 320) to enforce the provisions of the fourteenth amendment to the Constitution of the United States, and for other purposes— Mr. BINGHAM said: Mr. Speaker: No man is equal to the task of discussing, as it ought to be discussed, the issue before this House within the limits of a single hour. I scarcely hope that I should have done more than touch the hem of the garment of the argument when my hour shall have expired. But, sir, whatever I may fail to do, the great people behind me will not fail to supply. They, sir, constitute the tribunal before whom this issue is on trial. It is the old issue with which the people have become familiar within the last ten years. It presents itself, sir, this day only in another form. In substance it is precisely the issue which was presented ten years ago upon this floor, and was discussed ably and exhaustively on this side of the House and upon that. The question then, sir, and the question now, is, whether it is competent for the Congress of the United States, under the Constitution of the United States, in pursuance of its provisions, and * Cong. Globe, 42nd Cong., 1st Sess., Appendix, 81–86 (Mar. 31, 1871).

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Congress of the United States, by law, to enforce every affirmative grant of power and every express negative limitation imposed by the Constitution upon the States. The great case from which the gentleman read in 6 Wheaton, pages 375–447, (Cohens vs. Virginia,) is a judicial ruling that clearly, distinctly, and beyond all question, to the extent of all the affirmative grants of power in the Constitution, and of all the express negative limitations of power imposed by the Constitution upon the States, it is competent for Congress to legislate. From the opinion in this case, delivered by Marshall, C. J., I read the following:

Constitution, and in subordination to the Constitution, and subject to the express limitations of the Constitution, but for the purpose of aiding its enforcement, not of breaking it. The Constitution declares— “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.”

By the legislation of the First Congress, passed by the votes of many of the eminent men who framed the Constitution, then members of Congress, and approved by Washington, the power was given to the humblest citizen aggrieved by the final decision of State courts against his guarantied rights under the Constitution and laws of the United States, to bring the same for review and reversal before the Supreme Court of the United States, and thereby set aside the usurpations of a State. The judiciary act of 1789 asserts this power of the Government of the United States fully and expressly. The act of 1789, the validity and constitutionality of which has never been challenged by a respectable court in America, ought to have satisfied gentlemen that it is too late to raise the question they are raising here to-­ day, the power of Congress to provide by law for the enforcement of the powers vested by the Constitution in the Government of the United States, both against individuals and States, as Marshall expressed it. ... Notwithstanding the express grant of power in the Constitution, and the rulings of Marshall, and this legislation of the First Congress, gentlemen still aver that Congress cannot constitutionally make laws to enforce the rights of the nation against either States or unlawful combinations of men. I answer that the power to suppress combinations to obstruct the execution of the laws of the United States, was asserted under the administration of Washington by the Congress of the United States, and with his approval. ... I agree with the suggestion of my honorable and learned friend from Wisconsin, [Mr. Eldridge,] that the provision of the Constitution as to the protection of the States against invasion and insurrection, upon the call of their Legislature or their Governor, is in full

“America has chosen to be, in many respects and to many purposes, a nation; and for all these purposes, her Government is complete; to all these objects it is competent. The people have declared that in the exercise of all powers given for these objects it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The constitution and laws of a State, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void. These States are constituent parts of the United States. They are members of one great empire.” (6 Wheat., p. 414.)

Mr. Speaker, I have not the time to read from that opinion further. I will state, however, to the House that in this opinion, scarcely second in importance to any of the opinions that emanated from that matchless Chief Justice whose full-­orbed intellect for thirty years illumined the jurisprudence of his country, you will find incorporated the words of Hamilton, who was second to no man in gifts of mind and second to no man in the service which he rendered to the people of his own day and to the millions who have come after him in framing the Constitution of the United States. Marshall incorporates the words of Hamilton with approval, words in which Hamilton, while the Constitution was on trial for adoption or rejection before all the people of the States, referring to the dual system of government, national government, and State governments, and the judicial powers of each for the administration of the laws of the Union, declared “that the national and State systems are to be regarded as one whole,” and that “the courts of the latter [the States] will, of course, be national auxiliaries to the execution of all the laws of the Union.” The States exercise their judicial power under the 621

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force; but it in no wise touches this power of providing by law for the protection of all the guarantied rights of the people, under the Constitution of the United States, without asking any favor of the Legislature or the Governor of any State. Mr. Speaker, having said this much on this subject, I refer to the bill under consideration to say, that I do not propose now to discuss the provisions of the bill in detail. The bill incorporates in general the provisions, adapting them, however, to the existing condition of things, which have been law from the foundation of the Government, and to which I have referred. There may be provisions in the bill pending which are not necessary or proper. If there be, I shall ask the privilege, and I have no doubt it will be accorded to me, to attempt to amend by the favor of the House. Of the general power of Congress to legislate for the better enforcement of all the powers vested by the Constitution in the Government of the United States, and for the better protection of the people in the rights thereby guarantied to them against States and combinations of individuals, I have no doubt, for the reason that it is a closed question, absolutely closed— ... If it was competent heretofore to give the President power to enforce by arms the faithful execution of the laws against unlawful combinations of men, surely it is equally competent, to make the fact of such combinations a crime punishable in your courts. The powers of the States have been limited and the powers of Congress extended by the last three amendments of the Constitution. These last amendments—thirteen, fourteen, and fifteen—do, in my judgment, vest in Congress a power to protect the rights of citizens against States, and individuals in States, never before granted. It is my purpose, as far as I may be able in the limited time allowed me, to make this statement good. Mr. Speaker, the honorable gentleman from Illinois [Mr. Farnsworth] did me unwittingly, great service, when he ventured to ask me why I changed the form of the first section of the fourteenth article of amendment from the form in which I reported it to the House in February, 1866, from the Committee on Reconstruction. I will answer the gentleman, sir, and answer him truthfully. I had the honor to frame the amendment as reported in February, 1866, and the first section, as it now stands, letter for letter and syllable for syllable, in the fourteenth article of the amendments to the Consti-

tution of the United States, save the introductory clause defining citizens. The clause defining citizens never came from the joint Committee on Reconstruction, but the residue of the first section of the fourteenth amendment did come from the committee precisely as I wrote it and offered it in the Committee on Reconstruction, and precisely as it now stands in the Constitution, to wit: “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.” The fourteenth amendment concludes as follows:

“The Congress shall have power, by appropriate legislation, to enforce the provisions of this article.”

That is the grant of power. It is full and complete. The gentleman says that amendment differs from the amendment reported by me in February; differs from the provision introduced and written by me, now in the fourteenth article of amendments. It differs in this: that it is, as it now stands in the Constitution, more comprehensive than as it was first proposed and reported in February, 1866. It embraces all and more than did the February proposition. Mr. FARNSWORTH. I wish simply to call your attention— Mr. BINGHAM. Well, what is it? Mr. FARNSWORTH. The fourteenth amendment embraced other provisions which require legislation. The last clause gives Congress power— Mr. BINGHAM. I thank the gentleman for that word. The fourteenth amendment closes with the words, “the Congress shall have power to enforce, by appropriate legislation, the provisions of this article”—the whole of it, sir; all the provisions of the article; every section of it. Mr. FARNSWORTH rose. Mr. BINGHAM. The gentleman from Illinois must not further interrupt me. He is not now enlightening me on this subject, though doubtless he is capable of doing so when he has the time. The gentleman ventured upon saying that this amendment does not embrace all of the amendment prepared and reported by me with the consent of the committee in February, 1866. The amendment reported 622

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in February, and to which the gentleman refers, is as follows:

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.”

“The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all the privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.”

These are the words of Magna Charta, “we will not deny to any man right or justice,” the great words of England’s constitution, out of which has come all that grand system of English law and growth and development which has made the elder branch of our house, only second to America, her child, in the family of nations. I affirm that by the equal justice of her laws, by the strength, maturity, and splendor of her intellect, by the purity of her life, by her inventive genius, by her power on land and sea, by her triumphs in production, greater in proportion to population than that of any other people now or at any time upon this globe, England is foremost of the nations of the Old World. It was her Magna Charta, sir, which, when faithfully enforced, made it impossible for a slave to breathe in England, and by force of it, it came to be that the moment a slave set foot upon her soil his fetters turned to dust and he was free. A people to be great must be just. The gentleman asked what means the words in the fourteenth article “nor shall any State deny to any person the equal protection of the laws.” Sir, the gentleman seems to have taken a step backwards, either in knowledge of the right or fidelity to it. No man regrets this more than I do. When this fourteenth amendment was under discussion before the House, the gentleman endeavored to impress upon the House that the adoption of this very amendment, and especially the first section of it, which he says now we have no power to enforce, was essential to the protection of the poor emancipated slaves in the several States. I shall do no injustice to the gentleman. I shall quote his words exactly from the Globe as they there stand recorded. At that day, speaking of this amendment, the gentleman from Illinois [Mr. Farnsworth] said:

That is the amendment, and the whole of it, as reported in February, 1866. That amendment never was rejected by the House or Senate. A motion was made to lay it on the table, which was a test vote on the merits of it, and the motion failed—only forty-­one votes for the motion, and one hundred and ten against it. I consented to and voted for the motion to postpone it till the second Tuesday of April. Afterward, in the joint Committee on Reconstruction, I introduced this amendment, in the precise form, as I have stated, in which it was reported, and as it now stands in the Constitution of my country. It contains the words, among others— “Nor deny to any person within its jurisdiction the equal protection of the laws.”

The gentleman inquires, what does this mean? It ought to have occurred to the gentleman that it means that no State shall deny to any person within its jurisdiction the equal protection of the Constitution of the United States, as that Constitution is the supreme law of the land, and, of course, that no State should deny to any such person any of the rights which it guaranties to all men, nor should any State deny to any such person any rights secured to him either by the laws and treaties of the United States or of such State. The gentleman, if he had consulted Magna Charta, which England’s brilliant and profound constitutional historian, Hallam, has well said “is the keystone of English liberty,” would have found, in the forty-­sixth clause, these words: “We will sell to no man, we will not deny or delay to any man right or justice.”

“Equal protection by the laws! Can there be a well-­ founded objection to this? Is not this the very foundation of a republican government? Is it not the undeniable right of every subject of the Government to receive ‘equal protection of the laws’ with every other subject? This is so self-­evident and just that no man whose soul is not too cramped and dwarfed to hold the smallest germ of justice can fail to see and appreciate it.”—Globe, volume 58, page 2539.

After all the past, is it needful to say what it means to deny right or justice to any man? The words in the first section of the fourteenth amendment are quite as comprehensive as these words of Magna Charta, to wit: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of

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“The preservation of the Government requires it. The rights and liberties of the loyal poor cannot be preserved without it.”—Ibid., page 2540.

Surely the gentleman then supposed the words “the equal protection of the laws” were more than a glittering generality; that they were to be enforced to the extent of securing to all the guarantees of life, liberty, and property as provided in the supreme law of the land, the Constitution of the United States. Well might the gentleman inquire, as he does to-­day, “What means that language if we adopted the amendment without power to enforce it?” There is not a line or a letter in the fourteenth amendment that looks to the protection of the rights of these poor unfortunates, “the loyal poor,” is the gentleman called them, who were subjected to the torture of human bondage, but the provisions of the first and fifth sections of the fourteenth article of amendment. The power to enforce this provision by law is as full as any other grant of power to Congress. It is, “the Congress shall have power, by appropriate legislation,” to enforce this and every other provision of this article. Mr. Speaker, allow me to say, further, that by the text of the Constitution as you remember it, and as all thoughtful Representatives remember it, there are negative limitations upon the power of the States; as, for example, that no State shall make an ex post facto law; that no State shall pass any law impairing the obligation of contracts; that no State shall grant any title of nobility; that no State shall make anything a legal tender but gold and silver coin; that no State shall enter into any treaty, alliance, or confederation, nor any compact or agreement with another State, or with a foreign Power, &c. These are of the negative limitations on the power of the States in the original text of the Constitution. Does the gentleman undertake to tell me that they have not always been enforced against State constitutions and State statutes, and the judgment of the highest courts of the States, in the Supreme Court of the United States, under the twenty-­fifth section of the act of 1789? Why, sir, if I were to read the decisions that have been made in the exercise of this very power, under that law, enforcing these negative prohibitions upon States, the sun would go down before I had read even a syllabus of the cases. Is not the gentleman answered now? But, says the gentleman to me, why did you change the amendment of February, 1866? Sir, I sat at the feet of one who, though departed this life, still lives among us in his im-

mortal spirit, and still speaks to us from the reports of the highest judicial tribunal on earth, which he so long adorned as the Chief Justice of the Supreme Court of the United States. I took counsel, sir, of that great man, John Marshall, foremost of all the judges, in the hope that by his guidance, the amendment might be so framed that in all the hereafter, it might be accepted by the historian of the American Constitution and her Magna Charta “as the keystone of American liberty.” I answer the gentleman, how I came to change the form of February to the words now in the first section of the fourteenth article of amendment, as they stand, and I trust will forever stand, in the Constitution of my country. I had read—and that is what induced me to attempt to impose by constitutional amendments new limitations upon the power of the States—the great decision of Marshall in Barron vs. the Mayor and City Council of Baltimore, wherein the Chief Justice said, in obedience to his official oath and the Constitution as it then was: “The amendments [to the Constitution] contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.”—7 Peters, p. 250.

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In this case the city had taken private property for public use, without compensation as alleged, and there was no redress for the wrong in the Supreme Court of the United States; and only for this reason, the first eight amendments were not limitations on the power of the States. And so afterward, in the case of the Lessee of Livingston vs. Moore and others, (7 Peters, 552,) the court ruled, “it is now settled that the amendments [to the Constitution] do not extend to the States.” They were but limitations upon Congress. Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights. Those amendments secured the citizens against any deprivation of any essential rights of person by any act of Congress, and among other things thereby they were secured in their persons, houses, papers, and effects against unreasonable searches and seizures, in the inviolability of their homes in times of peace, by declaring that no soldier shall in time of peace be quartered in any house without the consent of the owner. They secured trial by jury; they secured the right to be informed of the nature and cause of accusations which might in any case be made against them; they secured

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compulsory process for witnesses, and to be heard in defense by counsel. They secured, in short, all the rights dear to the American citizen. And yet it was decided, and rightfully, that these amendments, defining and protecting the rights of men and citizens, were only limitations on the power of Congress, not on the power of the States. In reexamining that case of Barron, Mr. Speaker, after my struggle in the House in February, 1866, to which the gentleman has alluded, I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United States, the Chief Justice said: “Had the framers of these amendments 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 intention.” Barron vs. The Mayor, &c., 7 Peters, 250. Acting upon this suggestion I did imitate the framers of the original Constitution. As they had said “no State shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts;” imitating their example and imitating it to the letter, I prepared the provision of the first section of the fourteenth amendment as it stands in the Constitution, as follows:

to assemble, and to petition the Government for redress of grievances.

Article II. A well-­regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. Article III. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in the manner to be prescribed by law.

Article IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. Article V. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled on any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

“No State shall make or enforce any law which shall abridge the privileges or immunities of the 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.”

I hope the gentleman now knows why I changed the form of the amendment of February, 1866. Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows: Article I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably

Article VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

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Article VII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial

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by jury shall be preserved, and no fact tried by jury shall be otherwise re-­examined in any court of the United States, than according to the rules of the common law.

Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provision of the fourteenth article, that no state shall abridge the privileges and immunities of citizens of the United States, which are defined in the eight articles of amendment, and which were not limitations on the power of the States before the fourteenth amendment made them limitations? Sir, before the ratification of the fourteenth amendment, the State could deny to any citizen the right of trial by jury, and it was done. Before that the State could abridge the freedom of the press, and it was so done in half of the States of the Union. Before that a State, as in the case of the State of Illinois, could make it a crime punishable by fine and imprisonment for any citizen within her limits, in obedience to the injunction of our Divine Master, to help a slave who was ready to perish; to give him shelter, or break with him his crust of bread. The validity of that State restriction upon the rights of conscience and the duty of life was affirmed, to the shame and disgrace of America, in the Supreme Court of the United States; but nevertheless affirmed in obedience to the requirements of the Constitution. (14 Howard, 19–20. Moore vs. The People.) Under the Constitution as it is, not as it was, and by force of the fourteenth amendment, no State hereafter can imitate the bad example of Illinois, to which I have referred, nor can any State ever repeat the example of Georgia and send men to the penitentiary, as did that State, for teaching the Indian to read the lessons of the New Testament, to know that new evangel, “The pure in heart shall see God.” Mr. Speaker, this House may safely follow the example of the makers of the Constitution and the builders of the Republic, by passing laws for enforcing all the privileges and immunities of citizens of the United States, as guarantied by the amended Constitution and expressly enumerated in the Constitution. Do gentleman say that by so legislating we would strike down the rights of the State? God forbid. I believe our dual system of government essential for our national existence. That Constitution which Washington so aptly said made us one people, is essential to our nationality and essential to the protection of the rights of all the people at home and abroad. The State governments are also essential to the local administration of the law, which makes it omnipresent, visible to every man within the vast extent of the Republic, in every place, whether by the wayside or

Article VIII.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth 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 Congress, and such other laws for their better enforcement as Congress may make. Mr. Speaker, that decision in the fourth of Washington’s Circuit Court Reports, to which my learned colleague [Mr. Shellabarger] has referred is only a construction of the second section, fourth article of the original Constitution, to wit, “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” In that case the court only held that in civil rights the State could not refuse to extend to citizens of other States the same general rights secured to its own. In the case of The United States vs. Primrose, Mr. Webster said that— “For the purposes of trade, it is evidently not in the power of any State to impose any hinderance or embarrassment, &c., upon citizens of other States, or to place them, on coming there, upon a different footing from her own citizens.”—6 Webster’s Works, 112. The learned Justice Story declared that—

“The intention of the clause (‘the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,’) was to confer on the citizens of each State a general citizenship, and communicated all the privileges and immunities which a citizen of the same State would be entitled to under the same circumstances.”—Story on the Constitution, vol. 2, page 605. 626

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by the fireside, restraining him by its terrors from the wrong, and protecting him by his power, in the right. Who is there here to say that any State ever had the right to defeat the very object for which all government is made? The nation cannot be without that Constitution, which made us “one people;” the nation cannot be without the State governments to localize and enforce the rights of the people under the Constitution. No right reserved by the Constitution to the States should be impaired, no right vested by it in the government of the United States, or in any department or officer thereof, should be challenged or violated. “Centralized power, decentralized administration,” expresses the whole philosophy of the American system. You say it is centralized power to restrain by law unlawful combinations in States against the Constitution and citizens of the United States, to enforce the Constitution and the rights of the United States citizen[s] by national law, to disperse by force, if need be, combinations too powerful to be overcome by judicial process, engaged in trampling underfoot the life and liberty, or destroying the property of the citizen. The people of the United States are entitled to have their rights guarantied to them by the Constitution of the United States, protected by national law. I enter upon no new construction. I follow this day, in its letter and its spirit, the utterance of the mightiest man of our time, to whom God gave such gifts of intellect as are seldom given to man. The intellectual giant of the North, in the most elaborate argument of his public life, vindicated the Constitution of his country to the extent of all the grants and limitations of power which it then contained, and asserted the rightful authority of Congress to enforce them by law. The Supreme Court of the United States, and the legislative and executive departments, as I have shown, fully supported all that he said. To the right understanding of Mr. Webster’s words, the House will bear in mind that the Constitution of the United States required, that every State officer, legislative, executive, and judicial, should be bound by oath or affirmation to support it; that it declared that—

be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” I now quote Mr. Webster’s words:

“The maintenance of this Constitution does not depend on the plighted faith of the States as States to support it.” * * * “It relies on individual duty and obligation. “The Constitution of the United States creates direct relations between this Government and individuals. This Government may punish individuals for treason, and all other crimes in the code, when committed against the United States.” *** “On the other hand, the Government owes high and solemn duties to every citizen of the country. It is bound to protect him in his most important rights and interests. It makes war for his protection, and no other government in the country can make war. It makes peace for his protection, and no other government can make peace. He goes abroad beneath its flag, and carries with him a national character imparted to him by this Government, which no other government can impart.”—3 Webster’s Work’s, pp. 469, 470.

Has the Congress any clearer grant of power to make war for the protection of the citizen than it has to make laws to enforce his guarantied “privileges” under the Constitution, as defined therein and assured by the fourteenth amendment? The significant remark in that profound speech of Mr. Webster is, that, in which he says that the maintenance of this Constitution does not depend on the plighted faith of the States as States to support it. It relies on individual duty and obligation. That was his judgment; and logically it was followed by his other words, “The Government owes high and solemn duties to every citizen of the country. It is bound to protect him in his most important rights.” Has he rights any more important than the rights of life, liberty, and property? Sir, what would this Government be worth if it must rely upon States to execute its grants of power, its limitations of power upon States, and its express guarantees of rights to the people. Admitting that the States have concurrent power to enforce the Constitution of the United States within their respective limits, must we wait for their action? Are not laws preventive, as well as

“This Constitution and the laws of the United States which shall be made in pursuance of thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall

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remedial and punitive? Is it not better to prevent a great transgression in advance, than to engage in the terrible work of imprisonment, and confiscation, and execution after the crime has been done? Our fathers in the beginning set us the example of legislating in advance. Yet gentlemen say, now that the Constitution is amended and new powers have been vested in Congress, we must wait until these combinations are made. Why, sir, if we pass this bill and these offenses are not attempted or actually committed anywhere, no man is hurt, no State is restrained in the exercise of any of the powers which rightfully belong to it. Why not in advance provide against the denial of rights by States, whether the denial be acts of omission or commission, as well as against the unlawful acts of combinations and conspiracies against the rights of the people? The States never had the right, though they had the power, to inflict wrongs upon free citizens by a denial of the full protection of the laws; because all State officials are by the Constitution required to be bound by oath or affirmation to support the Constitution. As I have already said, the States did deny to citizens the equal protection of the laws, they did deny the rights of citizens under the Constitution, and except to the extent of the express limitations upon the States, as I have shown, the citizen had no remedy. They took property without compensation, and he had no remedy. They restricted the freedom of the press, and he had no remedy. They restricted the freedom of speech, and he had no remedy. They restricted the rights of conscience, and he had no remedy. They bought and sold men who had no remedy. Who dare say, now that the Constitution has been amended, that the nation cannot by law provide against all such abuses and denials of right as these in States and by States, or combinations of persons? I respectfully ask my friend from Illinois [Mr. Farnsworth] to review all that he has said on this subject. If I am not right in asserting that the negative limitations imposed by the Constitution on States can be enforced by law against individuals and States, then the Government was wrong from the administration of Washington down, and the Supreme Court of the United States was wrong every time this question has come before it. Let gentlemen consider the last three amendments and the new limitations thereby imposed upon the power of the States, and the new powers thereby vested in Congress. The first of these (the thirteenth) provides that involuntary servitude, or slavery, shall not exist in the United States. That is negative. Then we have the

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further provision that Congress shall have power to enforce, by appropriate legislation, this amendment. That is affirmative. Do gentlemen undertaking to say to-­day that this does not impose a new limitation upon the power of the States, and grant a new power to Congress? Does the gentleman from Indiana [Mr. Kerr] wish to be understood as affirming that there is no new grant of power here to Congress and no new limitation on the States? I rather think not. Let any State try the experiment of again enslaving men, and we will see, whether it is not competent for the Congress of the United States to make it a felony punishable by death to reduce any man, white or black, under color of State law, to a system of enforced human servitude or slavery; that system which converts a man, endowed with immortal life, into a thing of trade, an article of merchandise, with no acknowledged rights in the present and no hope of a heritage in the great hereafter. In such cases the nation would inflict the penalty for this crime upon individuals, not upon States. Will gentlemen undertake to tell the country that we cannot enforce by positive enactment that negative provision, the thirteenth article of amendment? We have fully considered the fourteenth amendment. We have seen that it expressly grants the power to Congress to enforce its provisions, all its provisions, by appropriate legislation. Consider the fifteenth amendment, which declares, “No State shall deny to any citizen of the United States the right to vote on account of race, color, or previous condition of servitude.” Here is a negative provision, a mere limitation, like the thirteenth and fourteenth amendments, on the power of the States, but coupled with a grant of power to Congress to enforce it. Did not a large majority of this House vote for the enforcement act of last May, which set aside the constitutions as well as the statutes of half the States of the Union because they denied rights guarantied to citizens by this negative provision, and which also declared combinations in States to deprive citizens of their rights, felony, punishable in the courts of the United States? I undertake to say, as to those sections of that law which enforce this provision and define and provide for the punishment of conspirators against the guarantied rights of the people, that there has never been found in America, anywhere, a court weak enough or wicked enough to question their validity, not one. I am not speaking of all the details of that act. I am speaking of the provisions of it which declare that the right shall not be denied, nor challenged, nor violated

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by individuals or States. What difference is there between enforcing the negative provision of the fifteenth amendment and enforcing a negative provision of the thirteenth and fourteenth amendments? There is no difference, sir. No man can find any difference. There the three new amendments stand, imposing limitations, as I have said, upon the powers of the States which never were imposed on them before, and granting to the Congress of the United States express powers which never were in Congress before. Mr. Speaker, I respectfully submit to the House and country that, by virtue of these amendments, it is competent for Congress today to provide by law that no man shall be held to answer in the tribunals of any State in this Union for any act made criminal by the laws of that State without a fair and impartial trial by jury. Congress never before has had the power to do it. It is also competent for Congress to provide that no citizen in any State shall be deprived of his property by State law or the judgment of a State court without just compensation therefor. Congress never before had the power so to declare. It is competent for the Congress of the United States to-­ day to declare that no State shall make or enforce any law which shall abridge the freedom of speech, the freedom of the press, or the right of the people peaceably to assemble together and petition for redress of grievances, for these are of the rights of citizens of the United States defined in the Constitution and guarantied by the fourteenth amendment, and to enforce which Congress is thereby expressly empowered. It is clear that if Congress do so provide by penal laws for the protection of these rights, those violating them must answer for the crime, and not the States. The United States punishes men, not States, for a violation of its law. Mr. Speaker, I do not fear what the judgment of the people will be on this great question. I only regret that I cannot more fully discuss it or more clearly present it. I feel that my strength is well-­nigh exhausted. I trust I have said enough to demonstrate the power of this Government to enforce the Constitution and protect the people in their rights of person and property. ... Mr. Speaker, in this discussion I have been necessarily compelled to speak of the powers of the national Government and of the powers of the States, and have referred only incidentally to the provisions of the Constitution guaranteeing rights, privileges, and immunities to citizens of the United States. I pray Mr. Speaker, that the House will not misunderstand me as placing

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the Government, either national or State, above the citizen. I ask the House, when they come to deliberate upon the question, not to forget the imperishable words of the Declaration, “All men are created equal and endowed by their Creator with the rights of life and liberty.” I ask gentlemen not to forget those other words of the Declaration, that “to protect these rights” (not to confer them) “governments are instituted among men.” I ask gentlemen further, when they come to deliberate upon this question, not to forget the words incorporated by its makers in the Constitution of our common country, by which it is declared that, to establish justice and to secure the blessings of liberty, “We, the people of the United States, do ordain this Constitution.” Liberty secured by law is not license. Liberty, our own American liberty, is the right “to know, to argue, and to utter freely according to conscience.” It is the liberty, sir, to know your duty and to do it. It is the liberty, sir, to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow-­men, and to be secure in the enjoyment of the fruits of your toil. Justice, sir, to establish which this Constitution was ordained, the people themselves being witness, is to give every man his due. The justice to be established by the Constitution is the attribute of God, as to do justice is the perpetual obligation of men and nations. Let justice for all, by the power and majesty of American law be established for all, so that the poorest man in his hovel on the frontiers of your widely extended domain, bearing with him toward the setting sun the symbols of civilization, and laying in the wilderness the foundations of new commonwealths, may be made as secure in his person and property and the prince in his palace or the king on his throne. Let equal and exact justice be established, that America may become the exemplar to all the nations of the world of the capacity of man for self-­government, and in establishing it may illustrate the utterance of that grand intellect Collard, of whom one of the most gifted of living men said: “His words become indelibly engraved upon what ever spot they fall. ‘The citizen,’ said he, ‘has a higher destiny than that of States.’” *** “‘States are born, live, and die upon the earth; here they accomplish their destiny; but they contain not the whole man. After the citizen has discharged every obligation he owes to society, every obligation

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that he owes to the State, there abides in him the nobler part of his nature—his immortal life, and to the unknown blessings of an invisible world.’” [Applause.]

5 The Slaughterhouse Cases 83 U.S. 38 (1873)

Mr. Justice MILLER, now, April 14th, 1873, delivered the opinion of the court. These cases are brought here by writs of error to the Supreme Court of the State of Louisiana. They arise out of the efforts of the butchers of New Orleans to resist the Crescent City Live-­Stock Landing and Slaughter-­House Company in the exercise of certain powers conferred by the charter which created it, and which was granted by the legislature of that State. The cases named on a preceding page, with others which have been brought here and dismissed by agreement, were all decided by the Supreme Court of Louisiana in favor of the Slaughter-­House Company, as we shall hereafter call it for the sake of brevity, and these writs are brought to reverse those decisions. The records were filed in this court in 1870, and were argued before it at length on a motion made by plaintiffs in error for an order in the nature of an injunction or supersedeas, pending the action of the court on the merits. The opinion on that motion is reported in 10 Wallace, 273. On account of the importance of the questions involved in these cases they were, by permission of the court, taken up out of their order on the docket and argued in January, 1872. At that hearing one of the justices was absent, and it was found, on consultation, that there was a diversity of views among those who were present. Impressed with the gravity of the questions raised in the argument, the court under these circumstances ordered that the cases be placed on the calendar and reargued before a full bench. This argument was had early in February last. Preliminary to the consideration of those questions is a motion by the defendant to dismiss the cases, on the ground that the contest between the parties has been

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adjusted by an agreement made since the records came into this court, and that part of that agreement is that these writs should be dismissed. This motion was heard with the argument on the merits, and was much pressed by counsel. It is supported by affidavits and by copies of the written agreement relied on. It is sufficient to say of these that we do not find in them satisfactory evidence that the agreement is binding upon all the parties to the record who are named as plaintiffs in the several writs of error, and that there are parties now before the court, in each of the three cases, the names of which appear on a preceding page, who have not consented to their dismissal, and who are not bound by the action of those who have so consented. They have a right to be heard, and the motion to dismiss cannot prevail. The records show that the plaintiffs in error relied upon, and asserted throughout the entire course of the litigation in the State courts, that the grant of privileges in the charter of defendant, which they were contesting, was a violation of the most important provisions of the thirteenth and fourteenth articles of amendment of the Constitution of the United States. The jurisdiction and the duty of this court to review the judgment of the State court on those questions is clear and is imperative. The statute thus assailed as unconstitutional was passed March 8th, 1869, and is entitled “An act to protect the health of the city of New Orleans, to locate the stock-­ landings and slaughter-­houses, and to incorporate the Crescent City Live-­Stock Landing and Slaughter-­House Company.” The first section forbids the landing or slaughtering of animals whose flesh is intended for food, within the city of New Orleans and other parishes and boundaries named and defined, or the keeping or establishing any slaughter-­houses or abattoirs within those limits except by the corporation thereby created, which is also limited to certain places afterwards mentioned. Suitable penalties are enacted for violations of this prohibition. The second section designates the corporators, gives the name to the corporation, and confers on it the usual corporate powers. The third and fourth sections authorize the company to establish and erect within certain territorial limits, therein defined, one or more stock-­yards, stock-­ landings, and slaughter-­houses, and imposes upon it the duty of erecting, on or before the first day of June, 1869, one grand slaughter-­house of sufficient capacity for slaughtering five hundred animals per day. It declares that the company, after it shall have pre-

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pared all the necessary buildings, yards, and other conveniences for that purpose, shall have the sole and exclusive privilege of conducting and carrying on the live-­stock landing and slaughter-­house business within the limits and privilege granted by the act, and that all such animals shall be landed at the stock-­landings and slaughtered at the slaughter-­houses of the company, and nowhere else. Penalties are enacted for infractions of this provision, and prices fixed for the maximum charges of the company for each steamboat and for each animal landed. Section five orders the closing up of all other stock-­ landings and slaughter-­houses after the first day of June, in the parishes of Orleans, Jefferson, and St. Bernard, and makes it the duty of the company to permit any person to slaughter animals in their slaughter-­houses under a heavy penalty for each refusal. Another section fixes a limit to the charges to be made by the company for each animal so slaughtered in their building, and another provides for an inspection of all animals intended to be so slaughtered, by an officer appointed by the governor of the State for that purpose. These are the principal features of the statute, and are all that have any bearing upon the questions to be decided by us. ... The plaintiffs in error accepting this issue, allege that the statute is a violation of the Constitution of the United States in these several particulars: That it creates an involuntary servitude forbidden by the thirteenth article of amendment; That it abridges the privileges and immunities of citizens of the United States; That it denies to the plaintiffs the equal protection of the laws; and, That it deprives them of their property without due process of law; contrary to the provisions of the first section of the fourteenth article of amendment. This court is thus called upon for the first time to give construction to these articles. We do not conceal from ourselves the great responsibility which this duty devolves upon us. No questions so far-­reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States, and of the several States to each other and to the citizens of the States and of the United States, have been before this court during the official life of any of its present members. We have given every

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opportunity for a full hearing at the bar; we have discussed it freely and compared views among ourselves; we have taken ample time for careful deliberation, and we now propose to announce the judgments which we have formed in the construction of those articles, so far as we have found them necessary to the decision of the cases before us, and beyond that we have neither the inclination nor the right to go. Twelve articles of amendment were added to the Federal Constitution soon after the original organization of the government under it in 1789. Of these all but the last were adopted so soon afterwards as to justify the statement that they were practically contemporaneous with the adoption of the original; and the twelfth, adopted in eighteen hundred and three, was so nearly so as to have become, like all the others, historical and of another age. But within the last eight years three other articles of amendment of vast importance have been added by the voice of the people to that now venerable instrument. The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning. Nor can such doubts, when any reasonably exist, be safely and rationally solved without a reference to that history; for in it is found the occasion and the necessity for recurring again to the great source of power in this country, the people of the States, for additional guarantees of human rights; additional powers to the Federal government; additional restraints upon those of the States. Fortunately that history is fresh within the memory of us all, and its leading features, as they bear upon the matter before us, free from doubt. The institution of African slavery, as it existed in about half the States of the Union, and the contests pervading the public mind for many years, between those who desired its curtailment and ultimate extinction and those who desired additional safeguards for its security and perpetuation, culminated in the effort, on the part of most of the States in which slavery existed, to separate from the Federal government, and to resist its authority. This constituted the war of the rebellion, and whatever auxiliary causes may have contributed to bring about this war, undoubtedly the overshadowing and efficient cause was African slavery. In that struggle slavery, as a legalized social relation, perished. It perished as a necessity of the bitterness and force of the conflict. When the armies of freedom found themselves upon the soil of slavery they could do noth-

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ing less than free the poor victims whose enforced servitude was the foundation of the quarrel. And when hard pressed in the contest these men (for they proved themselves men in that terrible crisis) offered their services and were accepted by thousands to aid in suppressing the unlawful rebellion, slavery was at an end wherever the Federal government succeeded in that purpose. The proclamation of President Lincoln expressed an accomplished fact as to a large portion of the insurrectionary districts, when he declared slavery abolished in them all. But the war being over, those who had succeeded in re-­establishing the authority of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of the Executive, both of which might have been questioned in after times, and they determined to place this main and most valuable result in the Constitution of the restored Union as one of its fundamental articles. Hence the thirteenth article of amendment of that instrument. Its two short sections seem hardly to admit of construction, so vigorous is their expression and so appropriate to the purpose we have indicated. “1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction. “2. Congress shall have power to enforce this article by appropriate legislation.” To withdraw the mind from the contemplation of this grand yet simple declaration of the personal freedom of all the human race within the jurisdiction of this government—a declaration designed to establish the freedom of four millions of slaves—and with a microscopic search endeavor to find in it a reference to servitudes, which may have been attached to property in certain localities, requires an effort, to say the least of it. That a personal servitude was meant is proved by the use of the word “involuntary,” which can only apply to human beings. The exception of servitude as a punishment for crime gives an idea of the class of servitude that is meant. The word servitude is of larger meaning than slavery, as the latter is popularly understood in this country, and the obvious purpose was to forbid all shades and conditions of African slavery. It was very well understood that in the form of apprenticeship for long terms, as it had been practiced in the West India Islands, on the abolition of slavery by the English government, or by reducing the slaves to the condition

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of serfs attached to the plantation, the purpose of the article might have been evaded, if only the word slavery had been used. The case of the apprentice slave, held under a law of Maryland, liberated by Chief Justice Chase, on a writ of habeas corpus under this article, illustrates this course of observation. And it is all that we deem necessary to say on the application of that article to the statute of Louisiana, now under consideration. The process of restoring to their proper relations with the Federal government and with the other States those which had sided with the rebellion, undertaken under the proclamation of President Johnson in 1865, and before the assembling of Congress, developed the fact that, notwithstanding the formal recognition by those States of the abolition of slavery, the condition of the slave race would, without further protection of the Federal government, be almost as bad as it was before. Among the first acts of legislation adopted by several of the States in the legislative bodies which claimed to be in their normal relations with the Federal government, were laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value, while they had lost the protection which they had received from their former owners from motives both of interest and humanity. They were in some States forbidden to appear in the towns in any other character than menial servants. They were required to reside on and cultivate the soil without the right to purchase or own it. They were excluded from many occupations of gain, and were not permitted to give testimony in the courts in any case where a white man was a party. It was said that their lives were at the mercy of bad men, either because the laws for their protection were insufficient or were not enforced. These circumstances, whatever of falsehood or misconception may have been mingled with their presentation, forced upon the statesmen who had conducted the Federal government in safety through the crisis of the rebellion, and who supposed that by the thirteenth article of amendment they had secured the result of their labors, the conviction that something more was necessary in the way of constitutional protection to the unfortunate race who had suffered so much. They accordingly passed through Congress the proposition for the fourteenth amendment, and they declined to treat as restored to their full participation in the government of the Union the States which had been in insurrection,

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until they ratified that article by a formal vote of their legislative bodies. Before we proceed to examine more critically the provisions of this amendment, on which the plaintiffs in error rely, let us complete and dismiss the history of the recent amendments, as that history relates to the general purpose which pervades them all. A few years’ experience satisfied the thoughtful men who had been the authors of the other two amendments that, notwithstanding the restraints of those articles on the States, and the laws passed under the additional powers granted to Congress, these were inadequate for the protection of life, liberty, and property, without which freedom to the slave was no boon. They were in all those States denied the right of suffrage. The laws were administered by the white man alone. It was urged that a race of men distinctively marked as was the negro, living in the midst of another and dominant race, could never be fully secured in their person and their property without the right of suffrage. Hence the fifteenth amendment, which declares that “the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude.” The negro having, by the fourteenth amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union. We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-­made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment, in terms, mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth. We do not say that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. Undoubtedly while negro slavery alone was in the mind of the Congress which proposed

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the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void. And so if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent. But what we do say, and what we wish to be understood is, that in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished, as far as constitutional law can accomplish it. The first section of the fourteenth article, to which our attention is more specially invited, opens with a definition of citizenship—not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals. It had been said by eminent judges that no man was a citizen of the United States, except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. Whether this proposition was sound or not had never been judicially decided. But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled; and if it was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen, were still, not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution. To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State, the first clause of the first section was framed.

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“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The first observation we have to make on this clause is, that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States. The next observation is more important in view of the arguments of counsel in the present case. It is, that the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union. It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual. We think this distinction and its explicit recognition in this amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs rests wholly on the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same. The language is, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” It is a little remarkable, if this clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States, in the very sentence which

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precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and with a purpose. Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment. If, then, there is a difference between the privileges and immunities belonging to a citizen of the United States as such, and those belonging to the citizen of the State as such the latter must rest for their security and protection where they have heretofore rested; for they are not embraced by this paragraph of the amendment. The first occurrence of the words “privileges and immunities” in our constitutional history, is to be found in the fourth of the articles of the old Confederation. It declares “that the better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively.” In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: “The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” There can be but little question that the purpose of both these provisions is the same, and that the privileges and immunities intended are the same in each. In the article of the Confederation we have some of these specifically mentioned, and enough perhaps to give some general idea of the class of civil rights meant by the phrase. Fortunately we are not without judicial construction of this clause of the Constitution. The first and the leading case on the subject is that of Corfield v. Coryell, decided by Mr. Justice Washington in the Circuit Court for

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the District of Pennsylvania in 1823. “The inquiry,” he says, “is, what are the privileges and immunities of citizens of the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would be more tedious than difficult to enumerate. They may all, however, be comprehended under the following general heads: protection by the government, 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 prescribe for the general good of the whole.” This definition of the privileges and immunities of citizens of the States is adopted in the main by this court in the recent case of Ward  v. The State of Maryland, while it declines to undertake an authoritative definition beyond what was necessary to that decision. The description, when taken to include others not named, but which are of the same general character, embraces nearly every civil right for the establishment and protection of which organized government is instituted. They are, in the language of Judge Washington, those rights which are fundamental. Throughout his opinion, they are spoken of as rights belonging to the individual as a citizen of a State. They are so spoken of in the constitutional provision which he was construing. And they have always been held to be the class of rights which the State governments were created to establish and secure. In the case of Paul v. Virginia, the court, in expounding this clause of the Constitution, says that “the privileges and immunities secured to citizens of each State in the several States, by the provision in question, are those privileges and immunities which are common to the citizens in the latter States under their constitution and laws by virtue of their being citizens.” The constitutional provision there alluded to did not create those rights, which it called privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens. Its sole purpose was to declare to the several States, that whatever those rights, as you grant or establish

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them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. It would be the vainest show of learning to attempt to prove by citations of authority, that up to the adoption of the recent amendments, no claim or pretence was set up that those rights depended on the Federal government for their existence or protection, beyond the very few express limitations which the Federal Constitution imposed upon the States—such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States? All this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-­reaching and pervading, so great a departure

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from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt. We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them. Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State governments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges and immunities of citizens of the United States which no State can abridge, until some case involving those privileges may make it necessary to do so. But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which owe their existence to the Federal government, its National character, its Constitution, or its laws. One of these is well described in the case of Crandall v. Nevada.* It is said to be the right of the citizen of this great country, protected by implied guarantees of its Constitution, “to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States.” And quoting from the language of Chief Justice Taney in another case, it is said “that for all the great purposes for which the Federal government was established, we are one people, with one common country, we are all citizens of the United States;” and it is, as such citizens, that their rights are supported in this court in Crandall v. Nevada. Another privilege of a citizen of the United States is * [6 Wallace, 36. —Ed.]

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to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States, and not citizenship of a State. One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment, and by the other clause of the fourteenth, next to be considered. But it is useless to pursue this branch of the inquiry, since we are of opinion that the rights claimed by these plaintiffs in error, if they have any existence, are not privileges and immunities of citizens of the United States within the meaning of the clause of the fourteenth amendment under consideration. “All persons born or naturalized 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 its laws.” The argument has not been much pressed in these cases that the defendant’s charter deprives the plaintiffs of their property without due process of law, or that it denies to them the equal protection of the law. The first of these paragraphs has been in the Constitution since the adoption of the fifth amendment, as a restraint upon the Federal power. It is also to be found in some form of expression in the constitutions of nearly all the States, as a restraint upon the power of the States. This law then, has practically been the same as it now is during the existence of the government, except so far as the present amendment may place the restraining

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power over the States in this matter in the hands of the Federal government. We are not without judicial interpretation, therefore, both State and National, of the meaning of this clause. And it is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision. “Nor shall any State deny to any person within its jurisdiction the equal protection of the laws.” In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden. If, however, the States did not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation. We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other. But as it is a State that is to be dealt with, and not alone the validity of its laws, we may safely leave that matter until Congress shall have exercised its power, or some case of State oppression, by denial of equal justice in its courts, shall have claimed a decision at our hands. We find no such case in the one before us, and do not deem it necessary to go over the argument again, as it may have relation to this particular clause of the amendment. In the early history of the organization of the government, its statemen seem to have divided on the line which should separate the powers of the National government from those of the State governments, and though this line has never been very well defined in public opinion, such a division has continued from that day to this. The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted, shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied

that such a jealousy continued to exist with many patriotic men until the breaking out of the late civil war. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government. Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National government. But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights—the rights of person and of property—was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation. But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions required, has always held with a steady and an even hand the balance between State and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution, or of any of its parts. The judgments of the Supreme Court of Louisiana in these cases are AFFIRMED.

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Mr. Justice FIELD, dissenting: I am unable to agree with the majority of the court in these cases, and will proceed to state the reasons of my dissent from their judgment. The cases grow out of the act of the legislature of the State of Louisiana, entitled “An act to protect the health of the city of New Orleans, to locate the stock-­ landings and slaughter-­houses, and to incorporate ‘The Crescent City Live-­Stock Landing and Slaughter-­House Company,” which was approved on the eighth of March, 1869, and went into operation on the first of June following. The act creates the corporation mentioned in its title, which is composed of seventeen persons desig-

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nated by name, and invests them and their successors with the powers usually conferred upon corporations in addition to their special and exclusive privileges. It first declares that it shall not be lawful, after the first day of June, 1869, to “land, keep, or slaughter any cattle, beeves, calves, sheep, swine, or other animals, or to have, keep, or establish any stock-­landing, yards, slaughter-­houses, or abattoirs within the city of New Orleans or the parishes of Orleans, Jefferson, and St. Bernard,” except as provided in the act; and imposes a penalty of two hundred and fifty dollars for each violation of its provisions. It then authorizes the corporation mentioned to establish and erect within the parish of St. Bernard and the corporate limits of New Orleans, below the United States barracks, on the east side of the Mississippi, or at any point below a designated railroad depot on the west side of the river, “wharves, stables, sheds, yards, and buildings, necessary to land, stable, shelter, protect, and preserve all kinds of horses, mules, cattle, and other animals,” and provides that cattle and other animals, destined for sale or slaughter in the city of New Orleans or its environs, shall be landed at the landings and yards of the company, and be there yarded, sheltered, and protected, if necessary; and that the company shall be entitled to certain prescribed fees for the use of its wharves, and for each animal landed, and be authorized to detain the animals until the fees are paid, and if not paid within fifteen days to take proceedings for their sale. Every person violating any of these provisions, or landing, yarding, or keeping animals elsewhere, is subjected to a fine of two hundred and fifty dollars. The act then requires the corporation to erect a grand slaughter-­house of sufficient dimensions to accommodate all butchers, and in which five hundred animals may be slaughtered a day, with a sufficient number of sheds and stables for the stock received at the port of New Orleans, at the same time authorizing the company to erect other landing-­places and other slaughter-­ houses at any points consistent with the provisions of the act. The act then provides that when the slaughter-­ houses and accessory buildings have been completed and thrown open for use, public notice thereof shall be given for thirty days, and within that time “all other stock-­landings and slaughter-­houses within the parishes of Orleans, Jefferson, and St. Bernard shall be closed, and it shall no longer be lawful to slaughter 638

cattle, hogs, calves, sheep, or goats, the meat of which is determined [destined] for sale within the parishes aforesaid, under a penalty of one hundred dollars for each and every offence.” The act then provides that the company shall receive for every animal slaughtered in its buildings certain prescribed fees, besides the head, feet, gore, and entrails of all animals except of swine. Other provisions of the act require the inspection of the animals before they are slaughtered, and allow the construction of railways to facilitate communication with the buildings of the company and the city of New Orleans. But it is only the special and exclusive privileges conferred by the act that this court has to consider in the cases before it. These privileges are granted for the period of twenty-­five years. Their exclusive character not only follows from the provisions I have cited, but it is declared in express terms in the act. In the third section the language is that the corporation “shall have the sole and exclusive privilege of conducting and carrying on the live-­stock, landing, and slaughter-­house business within the limits and privileges granted by the provisions of the act.” And in the fourth section the language is, that after the first of June, 1869, the company shall have “the exclusive privilege of having landed at their landing-­places all animals intended for sale or slaughter in the parishes of Orleans and Jefferson,” and “the exclusive privilege of having slaughtered” in its slaughter-­houses all animals, the meat of which is intended for sale in these parishes. In order to understand the real character of these special privileges, it is necessary to know the extent of country and of population which they affect. The parish of Orleans contains an area of country of 150 square miles; the parish of Jefferson, 384 square miles; and the parish of St. Bernard, 620 square miles. The three parishes together contain an area of 1154 square miles, and they have a population of between two and three hundred thousand people. The plaintiffs in error deny the validity of the act in question, so far as it confers the special and exclusive privileges mentioned. The first case before us was brought by an association of butchers in the three parishes against the corporation, to prevent the assertion and enforcement of these privileges. The second case was instituted by the attorney-­general of the State, in the name of the State, to protect the corporation in the

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No one will deny the abstract justice which lies in the position of the plaintiffs in error; and I shall endeavor to show that the position has some support in the fundamental law of the country. It is contended in justification for the act in question that it was adopted in the interest of the city, to promote its cleanliness and protect its health, and was the legitimate exercise of what is termed the police power of the State. That power undoubtedly extends to all regulations affecting the health, good order, morals, peace, and safety of society, and is exercised on a great variety of subjects, and in almost numberless ways. All sorts of restrictions and burdens are imposed under it, and when these are not in conflict with any constitutional prohibitions, or fundamental principles, they cannot be successfully assailed in a judicial tribunal. With this power of the State and its legitimate exercise I shall not differ from the majority of the court. But under the pretence of prescribing a police regulation the State cannot be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to secure against abridgment. In the law in question there are only two provisions which can properly be called police regulations—the one which requires the landing and slaughtering of animals below the city of New Orleans, and the other which requires the inspection of the animals before they are slaughtered. When these requirements are complied with, the sanitary purposes of the act are accomplished. In all other particulars the act is a mere grant to a corporation created by it of special and exclusive privileges by which the health of the city is in no way promoted. It is plain that if the corporation can, without endangering the health of the public, carry on the business of landing, keeping, and slaughtering cattle within a district below the city embracing an area of over a thousand square miles, it would not endanger the public health if other persons were also permitted to carry on the same business within the same district under similar conditions as to the inspection of the animals. The health of the city might require the removal from its limits and suburbs of all buildings for keeping and slaughtering cattle, but no such object could possibly justify legislation removing such buildings from a large part of the State for the benefit of a single corporation. The pretence of sanitary regulations for the grant of the exclusive privileges is a shallow one, which merits only this passing notice.

enjoyment of these privileges, and to prevent an association of stock-­dealers and butchers from acquiring a tract of land in the same district with the corporation, upon which to erect suitable buildings for receiving, keeping, and slaughtering cattle, and preparing animal food for market. The third case was commenced by the corporation itself, to restrain the defendants from carrying on a business similar to its own, in violation of its alleged exclusive privileges. The substance of the averments of the plaintiffs in error is this: That prior to the passage of the act in question they were engaged in the lawful and necessary business of procuring and bringing to the parishes of Orleans, Jefferson, and St. Bernard, animals suitable for human food, and in preparing such food for market; that in the prosecution of this business they had provided in these parishes suitable establishments for landing, sheltering, keeping, and slaughtering cattle and the sale of meat; that with their association about four hundred persons were connected, and that in the parishes named about a thousand persons were thus engaged in procuring, preparing, and selling animal food. And they complain that the business of landing, yarding, and keeping, within the parishes named, cattle intended for sale or slaughter, which was lawful for them to pursue before the first day of June, 1869, is made by that act unlawful for any one except the corporation named; and that the business of slaughtering cattle and preparing animal food for market, which it was lawful for them to pursue in these parishes before that day, is made by that act unlawful for them to pursue afterwards, except in the buildings of the company, and upon payment of certain prescribed fees, and a surrender of a valuable portion of each animal slaughtered. And they contend that the lawful business of landing, yarding, sheltering, and keeping cattle intended for sale or slaughter, which they in common with every individual in the community of the three parishes had a right to follow, cannot be thus taken from them and given over for a period of twenty-­five years to the sole and exclusive enjoyment of a corporation of seventeen persons or of anybody else. And they also contend that the lawful and necessary business of slaughtering cattle and preparing animal food for market, which they and all other individuals had a right to follow, cannot be thus restricted within this territory of 1154 square miles to the buildings of this corporation, or be subjected to tribute for the emolument of that body. 639

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It is also sought to justify the act in question on the same principle that exclusive grants for ferries, bridges, and turnpikes are sanctioned. But it can find no support there. Those grants are of franchises of a public character appertaining to the government. Their use usually requires the exercise of the sovereign right of eminent domain. It is for the government to determine when one of them shall be granted, and the conditions upon which it shall be enjoyed. It is the duty of the government to provide suitable roads, bridges, and ferries for the convenience of the public, and if it chooses to devolve this duty to any extent, or in any locality, upon particular individuals or corporations, it may of course stipulate for such exclusive privileges connected with the franchise as it may deem proper, without encroaching upon the freedom or the just rights of others. The grant, with exclusive privileges, of a right thus appertaining to the government, is a very different thing from a grant, with exclusive privileges, of a right to pursue one of the ordinary trades or callings of life, which is a right appertaining solely to the individual. Nor is there any analogy between this act of Louisiana and the legislation which confers upon the inventor of a new and useful improvement an exclusive right to make and sell to others his invention. The government in this way only secures to the inventor the temporary enjoyment of that which, without him, would not have existed. It thus only recognizes in the inventor a temporary property in the product of his own brain. The act of Louisiana presents the naked case, unaccompanied by any public considerations, where a right to pursue a lawful and necessary calling, previously enjoyed by every citizen, and in connection with which a thousand persons were daily employed, is taken away and vested exclusively for twenty-­five years, for an extensive district and a large population, in a single corporation, or its exercise is for that period restricted to the establishments of the corporation, and there allowed only upon onerous conditions. If exclusive privileges of this character can be granted to a corporation of seventeen persons, they may, in the discretion of the legislature, be equally granted to single individual. If they may be granted for twenty-­five years they may be equally granted for a century, and in perpetuity. If they may be granted for the landing and keeping of animals intended for sale or slaughter they may be equally granted for the landing and storing of grain and other products of the earth, or for any article of commerce. If they may be granted for structures in which

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animal food is prepared for market they may be equally granted for structures in which farinaceous or vegetable food is prepared. They may be granted for any of the pursuits of human industry, even in its most simple and common forms. Indeed, upon the theory on which the exclusive privileges granted by the act in question are sustained, there is no monopoly, in the most odious form, which may not be upheld. The question presented is, therefore, one of the gravest importance, not merely to the parties here, but to the whole country. It is nothing less than the question whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation. In my judgment the fourteenth amendment does afford such protection, and was so intended by the Congress which framed and the States which adopted it. The counsel for the plaintiffs in error have contended, with great force, that the act in question is also inhibited by the thirteenth amendment. That amendment prohibits slavery and involuntary servitude, except as a punishment for crime, but I have not supposed it was susceptible of a construction which would cover the enactment in question. I have been so accustomed to regard it as intended to meet that form of slavery which had previously prevailed in this country, and to which the recent civil war owed its existence, that I was not prepared, nor am I yet, to give to it the extent and force ascribed by counsel. Still it is evidence that the language of the amendment is not used in a restrictive sense. It is not confined to African slavery alone. It is general and universal in its application. Slavery of white men as well as of black men is prohibited, and not merely slavery in the strict sense of the term, but involuntary servitude in every form. The words “involuntary servitude” have not been the subject of any judicial or legislative exposition, that I am aware of, in this country, except that which is found in the Civil Rights Act, which will be hereafter noticed. It is, however, clear that they include something more than slavery in the strict sense of the term; they include also serfage, vassalage, villenage, peonage, and all other forms of compulsory service for the mere benefit or pleasure of others. Nor is this the full import of the terms. The abolition of slavery and involuntary servitude was intended to make every one born in this country a freeman, and as such to give to him the right to pursue the ordinary avocations of life without other restraint than such as affects all others, and to en-

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joy equally with them the fruits of his labor. A prohibition to him to pursue certain callings, open to others of the same age, condition, and sex, or to reside in places where others are permitted to live, would so far deprive him of the rights of a freeman, and would place him, as respects others, in a condition of servitude. A person allowed to pursue only one trade or calling, and only in one locality of the country, would not be, in the strict sense of the term, in a condition of slavery, but probably none would deny that he would be in a condition of servitude. He certainly would not possess the liberties nor enjoy the privileges of a freeman. The compulsion which would force him to labor even for his own benefit only in one direction, or in one place, would be almost as oppressive and nearly as great an invasion of his liberty as the compulsion which would force him to labor for the benefit or pleasure of another, and would equally constitute an element of servitude. The counsel of the plaintiffs in error therefore contend that “wherever a law of a State, or a law of the United States, makes a discrimination between classes of persons, which deprives the one class of their freedom or their property, or which makes a caste of them to subserve the power, pride, avarice, vanity, or vengeance of others,” there involuntary servitude exists within the meaning of the thirteenth amendment. It is not necessary, in my judgment, for the disposition of the present case in favor of the plaintiffs in error, to accept as entirely correct this conclusion of counsel. It, however, finds support in the act of Congress known as the Civil Rights Act, which was framed and adopted upon a construction of the thirteenth amendment, giving to its language a similar breadth. That amendment was ratified on the eighteenth of December, 1865, and in April of the following year the Civil Rights Act was passed. Its first section declares that all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are “citizens of the United States,” and that “such citizens, 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 in every State and Territory in the United States, 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 equal benefit of all laws and proceedings for the security of person and property, as enjoyed by white citizens.”

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This legislation was supported upon the theory that citizens of the United States as such were entitled to the rights and privileges enumerated, and that to deny to any such citizen equality in these rights and privileges with others, was, to the extent of the denial, subjecting him to an involuntary servitude. Senator Trumbull, who drew the act and who was its earnest advocate in the Senate, stated, on opening the discussion upon it in that body, that the measure was intended to give effect to the declaration of the amendment, and to secure to all persons in the United States practical freedom. After referring to several statutes passed in some of the Southern States, discriminating between the freedmen and white citizens, and after citing the definition of civil liberty given by Blackstone, the Senator said: “I take it that any statute which is not equal to all, and which deprives any citizen of civil rights, which are secured to other citizens, is an unjust encroachment upon his liberty; and it is in fact a badge of servitude which by the Constitution is prohibited.” By the act of Louisiana, within the three parishes named, a territory exceeding one thousand one hundred square miles, and embracing over two hundred thousand people, every man who pursues the business of preparing animal food for market must take his animals to the buildings of the favored company, and must perform his work in them, and for the use of the buildings must pay a prescribed tribute to the company, and leave with it a valuable portion of each animal slaughtered. Every man in these parishes who has a horse or other animal for sale, must carry him to the yards and stables of this company, and for their use pay a like tribute. He is not allowed to do his work in his own buildings, or to take his animals to his own stables or keep them in his own yards, even though they should be erected in the same district as the buildings, stables, and yards of the company, and that district embraces over eleven hundred square miles. The prohibitions imposed by this act upon butchers and dealers in cattle in these parishes, and the special privileges conferred upon the favored corporation, are similar in principle and as odious in character as the restrictions imposed in the last century upon the peasantry in some parts of France, where, as says a French writer, the peasant was prohibited “to hunt on his own lands, to fish in his own waters, to grind at his own mill, to cook at his own oven, to dry his clothes on his own machines, to whet his instruments at his own grindstone, to make his own wine, his oil, and his cider at his own press, . . . or to sell his

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commodities at the public market.” The exclusive right to all these privileges was vested in the lords of the vicinage. “The history of the most execrable tyranny of ancient times,” says the same writer, “offers nothing like this. This category of oppressions cannot be applied to a free man, or to the peasant, except in violation of his rights.” But if the exclusive privileges conferred upon the Louisiana corporation can be sustained, it is not perceived why exclusive privileges for the construction and keeping of ovens, machines, grindstones, wine-­presses, and for all the numerous trades and pursuits for the prosecution of which buildings are required, may not be equally bestowed upon other corporations or private individuals, and for periods of indefinite duration. It is not necessary, however, as I have said, to rest my objections to the act in question upon the terms and meaning of the thirteenth amendment. The provisions of the fourteenth amendment, which is properly a supplement to the thirteenth, cover, in my judgment, the case before us, and inhibit any legislation which confers special and exclusive privileges like these under consideration. The amendment was adopted to obviate objections which had been raised and pressed with great force to the validity of the Civil Rights Act, and to place the common rights of American citizens under the protection of the National government. It first declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” It then declares that “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.” The first clause of this amendment determines who are citizens of the United States, and how their citizenship is created. Before its enactment there was much diversity of opinion among jurists and statesmen whether there was any such citizenship independent of that of the State, and, if any existed, as to the manner in which it originated. With a great number the opinion prevailed that there was no such citizenship independent of the citizenship of the State. Such was the opinion of Mr. Calhoun and the class represented by him. In his celebrated speech in the Senate upon the Force Bill, in 1833, referring to the reliance expressed by a senator upon the fact that we are citizens of the United States, he said:

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“If by citizen of the United States he means a citizen at large, one whose citizenship extends to the entire geographical limits of the country without having a local citizenship in some State or Territory, a sort of citizen of the world, all I have to say is that such a citizen would be a perfect nondescript; that not a single individual of this description can be found in the entire mass of our population. Notwithstanding all the pomp and display of eloquence on the occasion, every citizen is a citizen of some State or Territory, and as such, under an express provision of the Constitution, is entitled to all privileges and immunities of citizens in the several States; and it is in this and no other sense that we are citizens of the United States.” In the Dred Scott case this subject of citizenship of the United States was fully and elaborately discussed. The exposition in the opinion of Mr. Justice Curtis has been generally accepted by the profession of the country as the one containing the soundest views of constitutional law. And he held that, under the Constitution, citizenship of the United States in reference to natives was dependent upon citizenship in the several States, under their constitutions and laws. The Chief Justice, in that case, and a majority of the court with him, held that the words “people of the United States” and “citizens” were synonymous terms; that the people of the respective States were the parties to the Constitution; that these people consisted of the free inhabitants of those States; that they had provided in their Constitution for the adoption of a uniform rule of naturalization; that they and their descendants and persons naturalized were the only persons who could be citizens of the United States, and that it was not in the power of any State to invest any other person with citizenship so that he could enjoy the privileges of a citizen under the Constitution, and that therefore the descendants of persons brought to this country and sold as slaves were not, and could not be citizens within the meaning of the Constitution. The first clause of the fourteenth amendment changes this whole subject, and removes it from the region of discussion and doubt. It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any State or the condition of their ancestry. A citizen of a State is now only a citizen of the United States residing in that State. The fundamental rights, privileges, and immunities which belong

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to him as a free man and a free citizen, now belong to him as a citizen of the United States, and are not dependent upon his citizenship of any State. The exercise of these rights and privileges, and the degree of enjoyment received from such exercise, are always more or less affected by the condition and the local institutions of the State, or city, or town where he resides. They are thus affected in a State by the wisdom of its laws, the ability of its officers, the efficiency of its magistrates, the education and morals of its people, and by many other considerations. This is a result which follows from the constitution of society, and can never be avoided, but in no other way can they be affected by the action of the State, or by the residence of the citizen therein. They do not derive their existence from its legislation, and cannot be destroyed by its power. The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always controlled any State legislation of that character. But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence. What, then, are the privileges and immunities which are secured against abridgment by State legislation? In the first section of the Civil Rights Act Congress has given its interpretation to these terms, or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the 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 equal benefit of all laws and proceedings

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for the security of person and property.” That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation of a similar character, extending the protection of the National government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress re-­enacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment. The terms, privileges and immunities, are not new in the amendment; they were in the Constitution before the amendment was adopted. They are found in the second section of the fourth article, which declares that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” and they have been the subject of frequent consideration in judicial decisions. In Corfield v. Coryell, Mr. Justice Washington said he had “no hesitation in confining these expressions to those privileges and immunities which were, in their nature, fundamental; which belong of right to citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose the Union, from the time of their becoming free, independent, and sovereign;” and, in considering what those fundamental privileges were, he said that perhaps it would be more tedious than difficult to enumerate them, but that they might be “all comprehended 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.” This appears to me to be a sound construction of the clause in question. The privileges and immunities designated are those which of right belong to the citizens of all free governments. Clearly among these must be placed the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons. In the discussions in Congress upon the passage of the Civil Rights Act repeated reference was made to this language of Mr. Justice Washington. It was cited by Senator Trumbull with the observation that it enumerated the very rights belonging to a citizen of the United States set forth in the first section of the act, and with the statement that all persons born in the United States, being declared by the

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act citizens of the United States, would thenceforth be entitled to the rights of citizens, and that these were the great fundamental rights set forth in the act; and that they were set forth “as appertaining to every freeman.” The privileges and immunities designated in the second section of the fourth article of the Constitution are, then, according to the decision cited, those which of right belong to the citizens of all free governments, and they can be enjoyed under that clause by the citizens of each State in the several States upon the same terms and conditions as they are enjoyed by the citizens of the latter States. No discrimination can be made by one State against the citizens of other States in their enjoyment, nor can any greater imposition be levied than such as is laid upon its own citizens. It is a clause which insures equality in the enjoyment of these rights between citizens of the several States whilst in the same State. Nor is there anything in the opinion in the case of Paul  v. Virginia, which at all militates against these views, as is supposed by the majority of the court. The act of Virginia, of 1866, which was under consideration in that case, provided that no insurance company, not incorporated under the laws of the State, should carry on its business within the State without previously obtaining a license for that purpose; and that it should not receive such license until it had deposited with the treasurer of the State bonds of a specified character, to an amount varying from thirty to fifty thousand dollars. No such deposit was required of insurance companies incorporated by the State, for carrying on their business within the State; and in the case cited the validity of the discriminating provisions of the statute of Virginia between her own corporations and the corporations of other States, was assailed. It was contended that the statute in this particular was in conflict with that clause of the Constitution which declares that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” But the court answered, that corporations were not citizens within the meaning of this clause; that the term citizens as there used applied only to natural persons, members of the body politic owing allegiance to the State, not to artificial persons created by the legislature and possessing only the attributes which the legislature had prescribed; that though it had been held that where contracts or rights of property were to be enforced by or against a corporation, the courts of the United States would, for the purpose of maintaining jurisdiction, consider the

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corporation as representing citizens of the State, under the laws of which it was created, and to this extent would treat a corporation was a citizen within the provision of the Constitution extending the judicial power of the United States to controversies between citizens of different States, it had never been held in any case which had come under its observation, either in the State or Federal courts, that a corporation was a citizen within the meaning of the clause in question, entitling the citizens of each State to the privileges and immunities of citizens in the several States. And the court observed, that the privileges and immunities secured by that provision were those privileges and immunities which were common to the citizens in the latter States, under their constitution and laws, by virtue of their being citizens; that special privileges enjoyed by citizens in their own States were not secured in other States by the provision; that it was not intended by it to give to the laws of one State any operation in other States; that they could have no such operation except by the permission, expressed or implied, of those States; and that the special privileges which they conferred must, therefore, be enjoyed at home unless the assent of other States to their enjoyment therein were given. And so the court held, that a corporation, being a grant of special privileges to the corporators, had no legal existence beyond the limits of the sovereignty where created, and that the recognition of its existence by other States, and the enforcement of its contracts made therein, depended purely upon the assent of those States, which could be granted upon such terms and conditions as those States might think proper to impose. The whole purport of the decision was, that citizens of one State do not carry with them into other States any special privileges or immunities, conferred by the laws of their own States, of a corporate or other character. That decision has no pertinency to the questions involved in this case. The common privileges and immunities which of right belong to all citizens, stand on a very different footing. These the citizens of each State do carry with them into other States and are secured by the clause in question, in their enjoyment upon terms of equality with citizens of the latter States. This equality in one particular was enforced by this court in the recent case of Ward v. The State of Maryland, reported in the 12th of Wallace. A statute of that State required the payment of a larger sum from a non-­resident trader for a license to enable him to sell his merchandise in the State, than it did of a resident trader, and the court held,

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that the statute in thus discriminating against the non-­ resident trader contravened the clause securing to the citizens of each State the privileges and immunities of citizens of the several States. The privilege of disposing of his property, which was an essential incident to his ownership, possessed by the non-­resident, was subjected by the statute of Maryland to a greater burden than was imposed upon a like privilege of her own citizens. The privileges of the non-­resident were in this particular abridged by that legislation. What the clause in question did for the protection of the citizens of one State against hostile and discriminating legislation of other States, the fourteenth amendment does for the protection of every citizen of the United States against hostile and discriminating legislation against him in favor of others, whether they reside in the same or in different States. If under the fourth article of the Constitution equality of privileges and immunities is secured between citizens of different States, under the fourteenth amendment the same equality is secured between citizens of the United States. It will not be pretended that under the fourth article of the Constitution any State could create a monopoly in any known trade or manufacture in favor of her own citizens, or any portion of them, which would exclude an equal participation in the trade or manufacture monopolized by citizens of other States. She could not confer, for example, upon any of her citizens the sole right to manufacture shoes, or boots, or silk, or the sole right to sell those articles in the State so as to exclude non-­resident citizens from engaging in a similar manufacture or sale. The non-­resident citizens could claim equality of privilege under the provisions of the fourth article with the citizens of the State exercising the monopoly as well as with others, and thus, as respects them, the monopoly would cease. If this were not so it would be in the power of the State to exclude at any time the citizens of other States from participation in particular branches of commerce or trade, and extend the exclusion from time to time so as effectually to prevent any traffic with them. Now, what the clause in question does for the protection of citizens of one State against the creation of monopolies in favor of citizens of other States, the fourteenth amendment does for the protection of every citizen of the United States against the creation of any monopoly whatever. The privileges and immunities of citizens of the United States, of every one of them, is secured against abridgment in any form by any State.

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The fourteenth amendment places them under the guardianship of the National authority. All monopolies in any known trade or manufacture are an invasion of these privileges, for they encroach upon the liberty of citizens to acquire property and pursue happiness, and were held void at common law in the great Case of Monopolies, decided during the reign of Queen Elizabeth. ... If it be said that the civil law and not the common law is the basis of the jurisprudence of Louisiana, I answer that the decree of Louis XVI, in 1776, abolished all monopolies of trades and all special privileges of corporations, guilds, and trading companies, and authorized every person to exercise, without restraint, his art, trade, or profession, and such has been the law of France and of her colonies ever since, and that law prevailed in Louisiana at the time of her cession to the United States. Since then, notwithstanding the existence in that State of the civil law as the basis of her jurisprudence, freedom of pursuit has been always recognized as the common right of her citizens. But were this otherwise, the fourteenth amendment secures the like protection to all citizens in that State against any abridgment of their common rights, as in other States. That amendment was intended to give practical effect to the declaration of 1776 of inalienable rights, rights which are the gift of the Creator, which the law does not confer, but only recognizes. If the trader in London could plead that he was a free citizen of that city against the enforcement to his injury of monopolies, surely under the fourteenth amendment every citizen of the United States should be able to plead his citizenship of the republic as a protection against any similar invasion of his privileges and immunities. So fundamental has this privilege of every citizen to be free from disparaging and unequal enactments, in the pursuit of the ordinary avocations of life, been regarded, that few instances have arisen where the principle has been so far violated as to call for the interposition of the courts. But whenever this has occurred, with the exception of the present cases from Louisiana, which are the most barefaced and flagrant of all, the enactment interfering with the privilege of the citizen has been pronounced illegal and void. When a case under the same law, under which the present cases have arisen, came before the Circuit Court of the United States in the District of Louisiana, there was no hesitation on the part of the court in declaring the law, in its exclusive features, to be an invasion of one of the fun-

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damental privileges of the citizen. The presiding justice, in delivering the opinion of the court, observed that it might be difficult to enumerate or define what were the essential privileges of a citizen of the United States, which a State could not by its laws invade, but that so far as the question under consideration was concerned, it might be safely said that “it is one of the privileges of every American citizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit, without unreasonable regulation or molestation, and without being restricted by any of those unjust, oppressive, and odious monopolies or exclusive privileges which have been condemned by all free governments.” And again: “There is no more sacred right of citizenship than the right to pursue unmolested a lawful employment in a lawful manner. It is nothing more nor less than the sacred right of labor.” ... This equality of right, with exemption from all disparaging and partial enactments, in the lawful pursuits of life, throughout the whole country, is the distinguishing privilege of citizens of the United States. To them, everywhere, all pursuits, all professions, all avocations are open without other restrictions than such as are imposed equally upon all others of the same age, sex, and condition. The State may prescribe such regulations for every pursuit and calling of life as will promote the public health, secure the good order and advance the general prosperity of society, but when once prescribed, the pursuit or calling must be free to be followed by every citizen who is within the conditions designated, and will conform to the regulations. This is the fundamental idea upon which our institutions rest, and unless adhered to in the legislation of the country our government will be a republic only in name. The fourteenth amendment, in my judgment, makes it essential to the validity of the legislation of every State that this equality of right should be respected. How widely this equality has been departed from, how entirely rejected and trampled upon by the act of Louisiana, I have already shown. And it is to me a matter of profound regret that its validity is recognized by a majority of this court, for by it the right of free labor, one of the most sacred and imprescriptible rights of man, is violated. As stated by the Supreme Court of Connecticut, in the case cited, grants of exclusive privileges, such as is made by the act in question, are opposed to the whole theory of free government, and it requires no aid from any bill of rights to render them void. That only is a free govern-

ment, in the American sense of the term, under which the inalienable right of every citizen to pursue his happiness is unrestrained, except by just, equal, and impartial laws. I am authorized by the CHIEF JUSTICE, Mr. Justice SWAYNE, and Mr. Justice BRADLEY, to state that they concur with me in this dissenting opinion.

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Mr. Justice BRADLEY, also dissenting: I concur in the opinion which has just been read by Mr. Justice Field; but desire to add a few observations for the purpose of more fully illustrating my views on the important question decided in these cases, and the special grounds on which they rest. The fourteenth amendment to the Constitution of the United States, section 1, declares that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States. The legislature of Louisiana, under pretence of making a police regulation for the promotion of the public health, passed an act conferring upon a corporation, created by the act, the exclusive right, for twenty-­five years, to have and maintain slaughter-­houses, landings for cattle, and yards for confining cattle intended for slaughter, within the parishes of Orleans, Jefferson, and St. Bernard, a territory containing nearly twelve hundred square miles, including the city of New Orleans; and prohibiting all other persons from building, keeping, or having slaughter-­houses, landings for cattle, and yards for confining cattle intended for slaughter within the said limits; and requiring that all cattle and other animals to be slaughtered for food in that district should be brought to the slaughter-­houses and works of the favored company to be slaughtered, and a payment of a fee to the company for such act. It is contended that this prohibition abridges the privileges and immunities of citizens of the United States, especially of the plaintiffs in error, who were particularly affected thereby; and whether it does so or not is the simple question in this case. And the solution of this question depends upon the solution of two other questions, to wit: First. Is it one of the rights and privileges of a citizen of the United States to pursue such civil employment as he may choose to adopt, subject to such reasonable regulations as may be prescribed by law? Secondly. Is a monopoly, or exclusive right, given to one person to the exclusion of all others, to keep slaughter-­houses, in a district of nearly twelve hundred

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square miles, for the supply of meat for a large city, a reasonable regulation of that employment which the legislature has a right to impose? The first of these questions is one of vast importance, and lies at the very foundations of our government. The question is now settled by the fourteenth amendment itself, that citizenship of the United States is the primary citizenship in this country; and that State citizenship is secondary and derivative, depending upon citizenship of the United States and the citizen’s place of residence. The States have not now, if they ever had, any power to restrict their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein, and an equality of rights with every other citizen; and the whole power of the nation is pledged to sustain him in that right. He is not bound to cringe to any superior, or to pray for any act of grace, as a means of enjoying all the rights and privileges enjoyed by other citizens. And when the spirit of lawlessness, mob violence, and sectional hate can be so completely repressed as to give full practical effect to this right, we shall be a happier nation, and a more prosperous one than we now are. Citizenship of the United States ought to be, and, according to the Constitution, is, a sure and undoubted title to equal rights in any and every States in this Union, subject to such regulations as the legislature may rightfully prescribe. If a man be denied full equality before the law, he is denied one of the essential rights of citizenship as a citizen of the United States. Every citizen, then, being primarily a citizen of the United States, and, secondarily, a citizen of the State where he resides, what, in general, are the privileges and immunities of a citizen of the United States? Is the right, liberty, or privilege of choosing any lawful employment one of them? If a State legislature should pass a law prohibiting the inhabitants of a particular township, county, or city, from tanning leather or making shoes, would such a law violate any privileges or immunities of those inhabitants as citizens of the United States, or only their privileges and immunities as citizens of that particular State? Or if a State legislature should pass a law of caste, making all trades and professions, or certain enumerated trades and professions, hereditary, so that no one could follow any such trades or professions except that which was pursued by his father, would such a law violate the privileges and immunities of the people of that State as citizens of the United States, or only as citizens

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of the State? Would they have no redress but to appeal to the courts of that particular State? This seems to me to be the essential question before us for consideration. And, in my judgment, the right of any citizen to follow whatever lawful employment he chooses to adopt (submitting himself to all lawful regulations) is one of his most valuable rights, and one which the legislature of a State cannot invade, whether restrained by its own constitution or not. The right of a State to regulate the conduct of its citizens is undoubtedly a very broad and extensive one, and not to be lightly restricted. But there are certain fundamental rights which this right of regulation cannot infringe. It may prescribe the manner of their exercise, but it cannot subvert the rights themselves. I speak now of the rights of citizens of any free government. Granting for the present that the citizens of one government cannot claim the privileges of citizens in another government; that prior to the union of our North American States the citizens of one State could not claim the privileges of citizens in another State; or, that after the union was formed the citizens of the United States, as such, could not claim the privileges of citizens in any particular State; yet the citizens of each of the States and the citizens of the United States would be entitled to certain privileges and immunities as citizens, at the hands of their own government—privileges and immunities which their own governments respectively would be bound to respect and maintain. In this free country, the people of which inherited certain traditionary rights and privileges from their ancestors, citizenship means something. It has certain privileges and immunities attached to it which the government, whether restricted by express or implied limitations, cannot take away or impair. It may do so temporarily by force, but it cannot do so by right. And these privileges and immunities attach as well to citizenship of the United States as to citizenship of the States. The people of this country brought with them to its shores the rights of Englishmen; the rights which had been wrested from English sovereigns at various periods of the nation’s history. One of these fundamental rights was expressed in these words, found in Magna Charta: “No freeman shall be taken or imprisoned, or be disseized of his freehold or liberties or free customs, or be outlawed or exiled, or any otherwise destroyed; nor will we pass upon him or condemn him but by lawful judgment of his peers or by the law of the land.” English constitutional writers expound this article as rendering

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life, liberty, and property inviolable, except by due process of law. This is the very right which the plaintiffs in error claim in this case. Another of these rights was that of habeas corpus, or the right of having any invasion of personal liberty judicially examined into, at once, by a competent judicial magistrate. Blackstone classifies these fundamental rights under three heads, as the absolute rights of individuals, to wit: the right of personal security, the right of personal liberty, and the right of private property. And of the last he says: “The third absolute right, inherent in every Englishman, is that of property, which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution save only by the laws of the land.” The privileges and immunities of Englishmen were established and secured by long usage and by various acts of Parliament. But it may be said that the Parliament of England has unlimited authority, and might repeal the laws which have from time to time been enacted. Theoretically this is so, but practically it is not. England has no written constitution, it is true; but it has an unwritten one, resting in the acknowledged, and frequently declared, privileges of Parliament and the people, to violate which in any material respect would produce a revolution in an hour. A violation of one of the fundamental principles of that constitution in the Colonies, namely, the principle that recognizes the property of the people as their own, and which, therefore, regards all taxes for the support of government as gifts of the people through their representatives, and regards taxation without representation as subversive of free government, was the origin of our own revolution. This, it is true, was the violation of a political right; but personal rights were deemed equally sacred, and were claimed by the very first Congress of the Colonies, assembled in 1774, as the undoubted inheritance of the people of this country; and the Declaration of Independence, which was the first political act of the American people in their independent sovereign capacity, lays the foundation of our National existence upon this broad proposition: “That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.” Here again we have the great threefold division of the rights of freemen, asserted as the rights of man. Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are the fundamental rights which can only be taken away by due process of law, and which

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can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; and these rights, I contend, belong to the citizens of every free government. For the preservation, exercise, and enjoyment of these rights the individual citizen, as a necessity, must be left free to adopt such calling, profession, or trade as may seem to him most conducive to that end. Without this right he cannot be a freeman. This right to choose one’s calling is an essential part of that liberty which it is the object of government to protect; and a calling, when chosen, is a man’s property and right. Liberty and property are not protected where these rights are arbitrarily assailed. I think sufficient has been said to show that citizenship is not an empty name, but that, in this country at least, it has connected with it certain incidental rights, privileges, and immunities of the greatest importance. And to say that these rights and immunities attach only to State citizenship, and not to citizenship of the United States, appears to me to evince a very narrow and insufficient estimate of constitutional history and the rights of men, not to say the rights of the American people. On this point the often-­quoted language of Mr. Justice Washington, in Corfield v. Coryell, is very instructive. Being called upon to expound that clause in the fourth article of the Constitution, which declares that “the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States,” he says: “The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign. What these fundamental privileges are it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended 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

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trade, agriculture, professional pursuits, or 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 the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental.” It is pertinent to observe that both the clause of the Constitution referred to, and Justice Washington in his comment on it, speak of the privileges and immunities of citizens in a State; not of citizens of a State. It is the privileges and immunities of citizens, that is, of citizens as such, that are to be accorded to citizens of other States when they are found in any State; or, as Justice Washington says, “privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments.” It is true the courts have usually regarded the clause referred to as securing only an equality of privileges with the citizens of the State in which the parties are found. Equality before the law is undoubtedly one of the privileges and immunities of every citizen. I am not aware that any case has arisen in which it became necessary to vindicate any other fundamental privilege of citizenship; although rights have been claimed which were not deemed fundamental, and have been rejected as not within the protection of this clause. Be this, however, as it may, the language of the clause is as I have stated it, and seems fairly susceptible of a broader interpretation than that which makes it a guarantee of mere equality of privileges with other citizens. But we are not bound to resort to implication, or to the constitutional history of England, to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself. The Constitution, it is true, as it stood prior to the recent amendments, specifies, in terms, only a few of the personal privileges and immunities of citizens, but they are very comprehensive in their character. The States were merely prohibited from passing bills of attainder, ex post facto laws, laws impairing the obligation of contracts, and perhaps one or two more. But others of the greatest consequence were enumerated, although they were only secured, in express terms, from invasion by the Federal government; such as the right of habeas corpus, the right of trial by jury,

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of free exercise of religious worship, the right of free speech and a free press, the right peaceably to assemble for the discussion of public measures, the right to be secure against unreasonable searches and seizures, and above all, and including almost all the rest, the right of not being deprived of life, liberty, or property, without due process of law. These, and still others are specified in the original Constitution, or in the early amendments of it, as among the privileges and immunities of citizens of the United States, or, what is still stronger for the force of the argument, the rights of all persons, whether citizens or not. But even if the Constitution were silent, the fundamental privileges and immunities of citizens, as such, would be no less real and no less inviolable than they now are. It was not necessary to say in words that the citizens of the United States should have and exercise all the privileges of citizens; the privilege of buying, selling, and enjoying property; the privilege of engaging in any lawful employment for a livelihood; the privilege of resorting to the laws for redress of injuries, and the like. Their very citizenship conferred these privileges, if they did not possess them before. And these privileges they would enjoy whether they were citizens of any State or not. Inhabitants of Federal territories and new citizens, made such by annexation of territory or naturalization, though without any status as citizens of a State, could, nevertheless, as citizens of the United States, lay claim to every one of the privileges and immunities which have been enumerated; and among these none is more essential and fundamental than the right to follow such profession or employment as each one may choose, subject only to uniform regulations equally applicable to all. II. The next question to be determined in this case is: Is a monopoly or exclusive right, given to one person, or corporation, to the exclusion of all others, to keep slaughter-­houses in a district of nearly twelve hundred square miles, for the supply of meat for a great city, a reasonable regulation of that employment which the legislature has a right to impose? The keeping of a slaughter-­house is part of, and incidental to, the trade of a butcher—one of the ordinary occupations of human life. To compel a butcher, or rather all the butchers of a large city and an extensive district, to slaughter their cattle in another person’s slaughter-­house and pay him a toll therefor, is such a restriction upon the trade as materially to interfere with its prosecution. It is onerous, unreasonable, arbitrary,

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and unjust. It has none of the qualities of a police regulation. If it were really a police regulation, it would undoubtedly be within the power of the legislature. That portion of the act which requires all slaughter-­houses to be located below the city, and to be subject to inspection, &c., is clearly a police regulation. That portion which allows no one but the favored company to build, own, or have slaughter-­houses is not a police regulation, and has not the faintest semblance of one. It is one of those arbitrary and unjust laws made in the interest of a few scheming individuals, by which some of the Southern States have, within the past few years, been so deplorably oppressed and impoverished. It seems to me strange that it can be viewed in any other light. The granting of monopolies, or exclusive privileges to individuals or corporations, is an invasion of the right of others to choose a lawful calling, and an infringement of personal liberty. It was so felt by the English nation as far back as the reigns of Elizabeth and James. A fierce struggle for the suppression of such monopolies, and for abolishing the prerogative of creating them, was made and was successful. The statute of 21st James, abolishing monopolies, was one of those constitutional landmarks of English liberty which the English nation so highly prize and so jealously preserve. It was a part of that inheritance which our fathers brought with them. This statute abolished all monopolies except grants for a term of years to the inventors of new manufactures. This exception is the groundwork of patents for new inventions and copyrights of books. These have always been sustained as beneficial to the state. But all other monopolies were abolished, as tending to the impoverishment of the people and to interference with their free pursuits. And ever since that struggle no English-­ speaking people have ever endured such an odious badge of tyranny. It has been suggested that this was a mere legislative act, and that the British Parliament, as well as our own legislatures, have frequently disregarded it by granting exclusive privileges for erecting ferries, railroads, markets, and other establishments of a public kind. It requires but a slight acquaintance with legal history to know that grants of this kind of franchises are totally different from the monopolies of commodities or of ordinary callings or pursuits. These public franchises can only be exercised under authority from the government, and the government may grant them on such conditions as it sees fit. But even these exclusive privileges are becoming more and more odious, and are get-

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ting to be more and more regarded as wrong in principle, and as inimical to the just rights and greatest good of the people. But to cite them as proof of the power of legislatures to create mere monopolies, such as no free and enlightened community any longer endures, appears to me, to say the least, very strange and illogical. Lastly: Can the Federal courts administer relief to citizens of the United States whose privileges and immunities have been abridged by a State? Of this I entertain no doubt. Prior to the fourteenth amendment this could not be done, except in a few instances, for the want of the requisite authority. As the great mass of citizens of the United States were also citizens of individual States, many of their general privileges and immunities would be the same in the one capacity as in the other. Having this double citizenship, and the great body of municipal laws intended for the protection of person and property being the laws of the State, and no provision being made, and no machinery provided by the Constitution, except in a few specified cases, for any interference by the General Government between a State and its citizens, the protection of the citizen in the enjoyment of his fundamental privileges and immunities (except where a citizen of one State went into another State) was largely left to State laws and State courts, where they will still continue to be left unless actually invaded by the unconstitutional acts or delinquency of the State governments themselves. Admitting, therefore, that formerly the States were not prohibited from infringing any of the fundamental privileges and immunities of citizens of the United States, in a few specified cases, that cannot be said now, since the adoption of the fourteenth amendment. In my judgment, it was the intention of the people of this country in adopting that amendment to provide National security against violation by the States of the fundamental rights of the citizen. The first section of this amendment, after declaring that all persons born or naturalized in the United States, and subject to its jurisdiction, are citizens of the United States and of the State wherein they reside, proceeds to declare further, that “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;” and that Congress shall have power to enforce by appropriate legislation the provisions of this article.

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Now, here is a clear prohibition on the States against making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States. If my views are correct with regard to what are the privileges and immunities of citizens, it follows conclusively that any law which establishes a sheer monopoly, depriving a large class of citizens of the privilege of pursuing a lawful employment, does abridge the privileges of those citizens. The amendment also prohibits any State from depriving any person (citizen or otherwise) of life, liberty, or property, without due process of law. In my view, a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law. Their right of choice is a portion of their liberty; their occupation is their property. Such a law also deprives those citizens of the equal protection of the laws, contrary to the last clause of the section. The constitutional question is distinctly raised in these cases; the constitutional right is expressly claimed; it was violated by State law, which was sustained by the State court, and we are called upon in a legitimate and proper way to afford redress. Our jurisdiction and our duty are plain and imperative. It is futile to argue that none but persons of the African race are intended to be benefited by this amendment. They may have been the primary cause of the amendment, but its language is general, embracing all citizens, and I think it was purposely so expressed. The mischief to be remedied was not merely slavery and its incidents and consequences; but that spirit of insubordination and disloyalty to the National government which had troubled the country for so many years in some of the States, and that intolerance of free speech and free discussion which often rendered life and property insecure, and led to much unequal legislation. The amendment was an attempt to give voice to the strong National yearning for that time and that condition of things, in which American citizenship should be a sure guaranty of safety, and in which every citizen of the United States might stand erect on every portion of its soil, in the full enjoyment of every right and privilege belonging to a freeman, without fear of violence or molestation. But great fears are expressed that this construction of the amendment will lead to enactments by Congress interfering with the internal affairs of the States,

and establishing therein civil and criminal codes of law for the government of the citizens, and thus abolishing the State governments in everything but name; or else, that it will lead the Federal courts to draw to their cognizance the supervision of State tribunals on every subject of judicial inquiry, on the plea of ascertaining whether the privileges and immunities of citizens have not been abridged. In my judgment no such practical inconveniences would arise. Very little, if any, legislation on the part of Congress would be required to carry the amendment into effect. Like the prohibition against passing a law impairing the obligation of a contract, it would execute itself. The point would be regularly raised, in a suit at law, and settled by final reference to the Federal court. As the privileges and immunities protected are only those fundamental ones which belong to every citizen, they would soon become so far defined as to cause but a slight accumulation of business in the Federal courts. Besides, the recognized existence of the law would prevent its frequent violation. But even if the business of the National courts should be increased, Congress could easily supply the remedy by increasing their number and efficiency. The great question is, What is the true construction of the amendment? When once we find that, we shall find the means of giving it effect. The argument from inconvenience ought not to have a very controlling influence in questions of this sort. The National will and National interest are of far greater importance. In my opinion the judgment of the Supreme Court of Louisiana ought to be reversed.

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Mr. Justice SWAYNE, dissenting: I concur in the dissent in these cases and in the views expressed by my brethren, Mr. Justice Field and Mr. Justice Bradley. I desire, however, to submit a few additional remarks. The first eleven amendments to the Constitution were intended to be checks and limitations upon the government which that instrument called into existence. They had their origin in a spirit of jealousy on the part of the States, which existed when the Constitution was adopted. The first ten were proposed in 1789 by the first Congress at its first session after the organization of the government. The eleventh was proposed in 1794, and the twelfth in 1803. The one last mentioned regulates the mode of electing the President and Vice-­President. It neither increased nor diminished the power of the General Government, and may be said in that respect

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to occupy neutral ground. No further amendments were made until 1865, a period of more than sixty years. The thirteenth amendment was proposed by Congress on the 1st of February, 1865, the fourteenth on the 16th of June, 1866, and the fifteenth on the 27th of February, 1869. These amendments are a new departure, and mark an important epoch in the constitutional history of the country. They trench directly upon the power of the States, and deeply affect those bodies. They are, in this respect, at the opposite pole from the first eleven. Fairly construed these amendments may be said to rise to the dignity of a new Magna Charta. The thirteenth blotted out slavery and forbade forever its restoration. It struck the fetters from four millions of human beings and raised them at once to the sphere of freemen. This was an act of grace and justice performed by the Nation. Before the war it could have been done only by the States where the institution existed, acting severally and separately from each other. The power then rested wholly with them. In that way, apparently, such a result could never have occurred. The power of Congress did not extend to the subject, except in the Territories. The fourteenth amendment consists of five sections. The first is as follows: “All persons born or naturalized within 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 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.” The fifth section declares that Congress shall have power to enforce the provisions of this amendment by appropriate legislation. The fifteenth amendment declares that the right 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. Until this amendment was adopted the subject to which it relates was wholly within the jurisdiction of the States. The General Government was excluded from participation. The first section of the fourteenth amendment is alone involved in the consideration of these cases. No searching analysis is necessary to eliminate its meaning. Its language is intelligible and direct. Nothing can be more transparent. Every word employed has an established signification. There is no room for construction. There is nothing to construe. Elaboration may obscure,

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but cannot make clearer, the intent and purpose sought to be carried out. (1.) Citizens of the States and of the United States are defined. (2.) It is declared that no State shall, by law, abridge the privileges or immunities of citizens of the United States. (3.) That no State shall deprive any person, whether a citizen or not, of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. A citizen of a State is ipso facto a citizen of the United States. No one can be the former without being also the latter; but the latter, by losing his residence in one State without acquiring it in another, although he continues to be the latter, ceases for the time to be the former. “The privileges and immunities” of a citizen of the United States include, among other things, the fundamental rights of life, liberty, and property, and also the rights which pertain to him by reason of his membership of the Nation. The citizen of a State has the same fundamental rights as a citizen of the United States, and also certain others, local in their character, arising from his relation to the State, and in addition, those which belong to the citizen of the United States, he being in that relation also. There may thus be a double citizenship, each having some rights peculiar to itself. It is only over those which belong to the citizen of the United States that the category here in question throws the shield of its protection. All those which belong to the citizen of a State, except as a bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are left to the guardianship of the bills of rights, constitutions, and laws of the States respectively. Those rights may all be enjoyed in every State by the citizens of every other State by virtue of clause 2, section 4, article 1, of the Constitution of the United States as it was originally framed. This section does not in anywise affect them; such was not its purpose. In the next category, obviously ex industria, to prevent, as far as may be, the possibility of misinterpretation, either as to persons or things, the phrases “citizens of the United States” and “privileges and immunities” are dropped, and more simple and comprehensive terms are substituted. The substitutes are “any person,” and “life,” “liberty,” and “property,” and “the equal protection of the laws.” Life, liberty, and property are forbidden to be taken “without due process of law,” and “equal protection of the laws” is guaranteed to all. Life

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is the gift of God, and the right to preserve it is the most sacred of the rights of man. Liberty is freedom from all restraints but such as are justly imposed by law. Beyond that line lies the domain of usurpation and tyranny. Property is everything which has an exchangeable value, and the right of property includes the power to dispose of it according to the will of the owner. Labor is property, and as such merits protection. The right to make it available is next in importance to the rights of life and liberty. It lies to a large extent at the foundation of most other forms of property, and of all solid individual and national prosperity. “Due process of law” is the application of the law as it exists in the fair and regular course of administrative procedure. “The equal protection of the laws” places all upon a footing of legal equality and gives the same protection to all for the preservation of life, liberty, and property, and the pursuit of happiness. It is admitted that the plaintiffs in error are citizens of the United States, and persons within the jurisdiction of Louisiana. The cases before us, therefore, present but two questions. (1.) Does the act of the legislature creating the monopoly in question abridge the privileges and immunities of the plaintiffs in error as citizens of the United States? (2.) Does it deprive them of liberty or property without due process of law, or deny them the equal protection of the laws of the State, they being persons “within its jurisdiction?” Both these inquiries I remit for their answer as to the facts to the opinions of my brethren, Mr. Justice Field and Mr. Justice Bradley. They are full and conclusive upon the subject. A more flagrant and indefensible invasion of the rights of many for the benefit of a few has not occurred in the legislative history of the country. The response to both inquiries should be in the affirmative. In my opinion the cases, as presented in the record, are clearly within the letter and meaning of both the negative categories of the sixth section. The judgments before us should, therefore, be reversed. These amendments are all consequences of the late civil war. The prejudices and apprehension as to the central government which prevailed when the Constitution was adopted were dispelled by the light of experience. The public mind became satisfied that there was less danger of tyranny in the head than of anarchy and tyranny in the members. The provisions of this section are all eminently conservative in their character. They are a bulwark of defence, and can never be made an en-

gine of oppression. The language employed is unqualified in its scope. There is no exception in its terms, and there can be properly none in their application. By the language “citizens of the United States” was meant all such citizens; and by “any person” was meant all persons within the jurisdiction of the State. No distinction is intimated on account of race or color. This court has no authority to interpolate a limitation that is neither expressed nor implied. Our duty is to execute the law, not to make it. The protection provided was not intended to be confined to those of any particular race or class, but to embrace equally all races, classes, and conditions of men. It is objected that the power conferred is novel and large. The answer is that the novelty was known and the measure deliberately adopted. The power is beneficent in its nature, and cannot be abused. It is such as should exist in every well-­ordered system of polity. Where could it be more appropriately lodged than in the hands to which it is confided? It is necessary to enable the government of the nation to secure to every one within its jurisdiction the rights and privileges enumerated, which, according to the plainest considerations of reason and justice and the fundamental principles of the social compact, all are entitled to enjoy. Without such authority any government claiming to be national is glaringly defective. The construction adopted by the majority of my brethren is, in my judgment, much too narrow. It defeats, by a limitation not anticipated, the intent of those by whom the instrument was framed and of those by whom it was adopted. To the extent of that limitation it turns, as it were, what was meant for bread into a stone. By the Constitution, as it stood before the war, ample protection was given against oppression by the Union, but little was given against wrong and oppression by the States. That want was intended to be supplied by this amendment. Against the former this court has been called upon more than once to interpose. Authority of the same amplitude was intended to be conferred as to the latter. But this arm of our jurisdiction is, in these cases, stricken down by the judgment just given. Nowhere, than in this court, ought the will of the nation, as thus expressed, to be more liberally construed or more cordially executed. This determination of the majority seems to me to lie far in the other direction. I earnestly hope that the consequences to follow may prove less serious and far-­reaching than the minority fear they will be. 653

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out of the definition of citizenship of a state as defined by the first section of the Fourteenth Amendment. In regard to that amendment counsel for the plaintiff in this Court truly says that there are certain privileges and immunities which belong to a citizen of the United States as such; otherwise it would be nonsense for the Fourteenth Amendment to prohibit a state from abridging them, and he proceeds to argue that admission to the bar of a state of a person who possesses the requisite learning and character is one of those which a state may not deny. In this latter proposition we are not able to concur with counsel. We agree with him that there are privileges and immunities belonging to citizens of the United States, in that relation and character, and that it is these and these alone which a state is forbidden to abridge. But the right to admission to practice in the courts of a state is not one of them. This right in no sense depends on citizenship of the United States. It has not, as far as we know, ever been made in any state, or in any case, to depend on citizenship at all. Certainly many prominent and distinguished lawyers have been admitted to practice, both in the state and federal courts, who were not citizens of the United States or of any state. But on whatever basis this right may be placed, so far as it can have any relation to citizenship at all, it would seem that, as to the courts of a state, it would relate to citizenship of the state, and as to federal courts, it would relate to citizenship of the United States. The opinion just delivered in the Slaughter-­House Cases* renders elaborate argument in the present case unnecessary, for, unless we are wholly and radically mistaken in the principles on which those cases are decided, the right to control and regulate the granting of license to practice law in the courts of a state is one of those powers which are not transferred for its protection to the federal government, and its exercise is in no manner governed or controlled by citizenship of the United States in the party seeking such license. It is unnecessary to repeat the argument on which the judgment in those cases is founded. It is sufficient to say they are conclusive of the present case. Judgment affirmed.

6 Bradwell v. The State 83 U.S. 130 (1873)

Mr. Justice MILLER delivered the opinion of the Court. The record in this case is not very perfect, but it may be fairly taken that the plaintiff asserted her right to a license on the grounds, among others, that she was a citizen of the United States, and that having been a citizen of Vermont at one time, she was, in the State of Illinois, entitled to any right granted to citizens of the latter state. The court having overruled these claims of right founded on the clauses of the federal Constitution before referred to, those propositions may be considered as properly before this Court. As regards the provision of the Constitution that citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states, the plaintiff in her affidavit has stated very clearly a case to which it is inapplicable. The protection designed by that clause, as has been repeatedly held, has no application to a citizen of the state whose laws are complained of. If the plaintiff was a citizen of the State of Illinois, that provision of the Constitution gave her no protection against its courts or its legislation. The plaintiff seems to have seen this difficulty, and attempts to avoid it by stating that she was born in Vermont. While she remained in Vermont, that circumstance made her a citizen of that state. But she states, at the same time, that she is a citizen of the United States, and that she is now, and has been for many years past, a resident of Chicago, in the State of Illinois. The Fourteenth Amendment declares that citizens of the United States are citizens of the state within which they reside; therefore the plaintiff was, at the time of making her application, a citizen of the United States and a citizen of the State of Illinois. We do not here mean to say that there may not be a temporary residence in one state, with intent to return to another, which will not create citizenship in the former. But the plaintiff states nothing to take her case

* [Bradwell was handed down on April 15, 1873, the day after the Supreme Court handed down its decision in the Slaughterhouse Cases. —Ed.] 654

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Mr. Justice BRADLEY: I concur in the judgment of the Court in this case, by which the judgment of the Supreme Court of Illinois is affirmed, but not for the reasons specified in the opinion just read. The claim of the plaintiff, who is a married woman, to be admitted to practice as an attorney and counselor at law is based upon the supposed right of every person, man or woman, to engage in any lawful employment for a livelihood. The Supreme Court of Illinois denied the application on the ground that, by the common law, which is the basis of the laws of Illinois, only men were admitted to the bar, and the legislature had not made any change in this respect, but had simply provided that no person should be admitted to practice as attorney or counselor without having previously obtained a license for that purpose from two justices of the Supreme Court, and that no person should receive a license without first obtaining a certificate from the court of some county of his good moral character. In other respects, it was left to the discretion of the court to establish the rules by which admission to the profession should be determined. The court, however, regarded itself as bound by at least two limitations. One was that it should establish such terms of admission as would promote the proper administration of justice, and the other that it should not admit any persons, or class of persons, not intended by the legislature to be admitted, even though not expressly excluded by statute. In view of this latter limitation the court felt compelled to deny the application of females to be admitted as members of the bar. Being contrary to the rules of the common law and the usages of Westminster Hall from time immemorial, it could not be supposed that the legislature had intended to adopt any different rule. The claim that under the Fourteenth Amendment of the Constitution, which declares that no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, the statute law of Illinois, or the common law prevailing in that state, can no longer be set up as a barrier against the right of females to pursue any lawful employment for a livelihood (the practice of law included), assumes that it is one of the privileges and immunities of women as citizens to engage in any and every profession, occupation, or employment in civil life. It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fun-

damental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The Constitution of the family organization, which is founded in the divine ordinance as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state, and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most states. One of these is that a married woman is incapable, without her husband’s consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counselor. It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases. The humane movements of modern society, which have for their object the multiplication of avenues for woman’s advancement, and of occupations adapted to her condition and sex, have my heartiest concurrence. But I am not prepared to say that it is one of her fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsi655

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bilities. In the nature of things, it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the state, and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex. For these reasons, I think that the laws of Illinois now complained of are not obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States.

Mr. Justice SWAYNE and Mr. Justice FIELD concurred in the foregoing opinion of Mr. Justice BRADLEY. The CHIEF JUSTICE dissented from the judgment of the Court and from all the opinions.

7 Minor v. Happersett 88 U.S. 21 (1875)

The CHIEF JUSTICE* delivered the opinion of the Court. The question is presented in this case whether, since the adoption of the Fourteenth Amendment, a woman who is a citizen of the United States and of the State of Missouri is a voter in that state notwithstanding the provision of the constitution and laws of the state which confine the right of suffrage to men alone. We might, perhaps, decide the case upon other grounds, but this question is fairly made. From the opinion, we find that it was the only one decided in the court below, and it is the only one which has been argued here. The case was undoubtedly brought to this Court for the sole purpose * [When Chief Justice Salmon Chase died in May 1873, President Grant nominated Morrison Waite as the new chief justice. Waite took the oath of office on March 4, 1874. —Ed.]

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of having that question decided by us, and in view of the evident propriety there is of having it settled, so far as it can be by such a decision, we have concluded to waive all other considerations and proceed at once to its determination. It is contended that the provisions of the constitution and laws of the State of Missouri which confine the right of suffrage and registration therefor to men are in violation of the Constitution of the United States, and therefore void. The argument is that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the state in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship which the state cannot by its laws or constitution abridge. There is no doubt that women may be citizens. They are persons, and by the Fourteenth Amendment “all persons born or naturalized in the United States and subject to the jurisdiction thereof ” are expressly declared to be “citizens of the United States and of the state wherein they reside.” But in our opinion it did not need this amendment to give them that position. Before its adoption, the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several states, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community such as a nation is implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are in this connection reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance. For convenience, it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose, the words “subject,” “inhabitant,” and “citizen” have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the states upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used

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in this sense, it is understood as conveying the idea of membership of a nation, and nothing more. To determine, then, who were citizens of the United States before the adoption of the amendment, it is necessary to ascertain what persons originally associated themselves together to form the nation and what were afterwards admitted to membership. Looking at the Constitution itself, we find that it was ordained and established by “the people of the United States,” and then going further back, we find that these were the people of the several states that had before dissolved the political bands which connected them with Great Britain and assumed a separate and equal station among the powers of the earth, and that had by Articles of Confederation and Perpetual Union, in which they took the name of “the United States of America,” entered into a firm league of friendship with each other for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to or attack made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever. Whoever, then, was one of the people of either of these states when the Constitution of the United States was adopted became ipso facto a citizen—a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was consequently one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were. Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that “No person except a natural-­born citizen or a citizen of the United States at the time of the adoption of the Constitution shall be eligible to the office of President,” and that Congress shall have power “to establish a uniform rule of naturalization.” Thus, new citizens may be born or they may be created by naturalization. The Constitution does not in words say who shall be natural-­born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or

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natural-­born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words “all children” are certainly as comprehensive, when used in this connection, as “all persons,” and if females are included in the last, they must be in the first. That they are included in the last is not denied. In fact, the whole argument of the plaintiffs proceeds upon that idea. Under the power to adopt a uniform system of naturalization, Congress, as early as 1790, provided “that any alien, being a free white person,” might be admitted as a citizen of the United States, and that the children of such persons so naturalized, dwelling within the United States, being under twenty-­one years of age at the time of such naturalization, should also be considered citizens of the United States, and that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-­born citizens. These provisions thus enacted have in substance been retained in all the naturalization laws adopted since. In 1855, however, the last provision was somewhat extended, and all persons theretofore born or thereafter to be born out of the limits of the jurisdiction of the United States, whose fathers were or should be at the time of their birth citizens of the United States were declared to be citizens also. As early as 1804 it was enacted by Congress that when any alien who had declared his intention to become a citizen in the manner provided by law died before he was actually naturalized, his widow and children should be considered as citizens of the United States and entitled to all rights and privileges as such upon taking the necessary oath; and in 1855 it was further provided that any woman who might lawfully be naturalized under the existing laws, married, or who should be married to a citizen of the United States should be deemed and taken to be a citizen. From this it is apparent that from the commencement of the legislation upon this subject, alien women and alien minors could be made citizens by naturalization, and we think it will not be contended that this

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would have been done if it had not been supposed that native women and native minors were already citizens by birth. But if more is necessary to show that women have always been considered as citizens the same as men, abundant proof is to be found in the legislative and judicial history of the country. Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different states. Under this, it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record. Its existence as a fact may be put in issue and tried. If found not to exist, the case must be dismissed. Notwithstanding this, the records of the courts are full of cases in which the jurisdiction depends upon the citizenship of women, and not one can be found, we think, in which objection was made on that account. Certainly none can be found in which it has been held that women could not sue or be sued in the courts of the United States. Again, at the time of the adoption of the Constitution, in many of the states (and in some probably now) aliens could not inherit or transmit inheritance. There are a multitude of cases to be found in which the question has been presented whether a woman was or was not an alien, and as such capable or incapable of inheritance, but in no one has it been insisted that she was not a citizen because she was a woman. On the contrary, her right to citizenship has been in all cases assumed. The only question has been whether, in the particular case under consideration, she had availed herself of the right. In the legislative department of the government, similar proof will be found. Thus, in the preemption laws, a widow, “being a citizen of the United States,” is allowed to make settlement on the public lands and purchase upon the terms specified, and women, “being citizens of the United States,” are permitted to avail themselves of the benefit of the homestead law. Other proof of like character might be found, but certainly more cannot be necessary to establish the fact that sex has never been made one of the elements of citizenship in the United States. In this respect, men have never had an advantage over women. The same laws precisely apply to both. The Fourteenth Amendment did not affect the citizenship of women any more than it did of men. In this particular, therefore, the rights of Mrs. Minor do not depend upon the amendment. She

has always been a citizen from her birth and entitled to all the privileges and immunities of citizenship. The amendment prohibited the state, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States, but it did not confer citizenship on her. That she had before its adoption. If the right of suffrage is one of the necessary privileges of a citizen of the United States, then the Constitution and laws of Missouri confining it to men are in violation of the Constitution of the United States, as amended, and consequently void. The direct question is therefore presented whether all citizens are necessarily voters. The Constitution does not define the privileges and immunities of citizens. For that definition we must look elsewhere. In this case, we need not determine what they are, but only whether suffrage is necessarily one of them. It certainly is nowhere made so in express terms. The United States has no voters in the states of its own creation. The elective officers of the United States are all elected directly or indirectly by state voters. The members of the House of Representatives are to be chosen by the people of the states, and the electors in each state must have the qualifications requisite for electors of the most numerous branch of the state legislature. Senators are to be chosen by the legislatures of the states, and necessarily the members of the legislature required to make the choice are elected by the voters of the state. Each state must appoint in such manner, as the legislature thereof may direct, the electors to elect the President and Vice-­President. The times, places, and manner of holding elections for Senators and Representatives are to be prescribed in each state by the legislature thereof, but Congress may at any time, by law, make or alter such regulations, except as to the place of choosing Senators. It is not necessary to inquire whether this power of supervision thus given to Congress is sufficient to authorize any interference with the state laws prescribing the qualifications of voters, for no such interference has ever been attempted. The power of the state in this particular is certainly supreme until Congress acts. The amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it. Indirectly it may have had that effect because it may have increased the number of citizens entitled to suffrage under the 658

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cluding 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 Congress, the executive and 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 the rebellion, or other crimes, 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.” Why this if it was not in the power of the legislature to deny the right of suffrage to some male inhabitants? And if suffrage was necessarily one of the absolute rights of citizenship, why confine the operation of the limitation to male inhabitants? Women and children are, as we have seen, “persons.” They are counted in the enumeration upon which the apportionment is to be made, but if they were necessarily voters because of their citizenship unless clearly excluded, why inflict the penalty for the exclusion of males alone? Clearly no such form of words would have been selected to express the idea here indicated if suffrage was the absolute right of all citizens. And still again, after the adoption of the Fourteenth Amendment, it was deemed necessary to adopt a fifteenth, as follows: “The right 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.” The Fourteenth Amendment had already provided that no state should make or enforce any law which should abridge the privileges or immunities of citizens of the United States. If suffrage was one of these privileges or immunities, why amend the Constitution to prevent its being denied on account of race &c.? Nothing is more evident than that the greater must include the less, and if all were already protected, why go through with the form of amending the Constitution to protect a part? It is true that the United States guarantees to every state a republican form of government. It is also true that no state can pass a bill of attainder, and that no person can be deprived of life, liberty, or property without due process of law. All these several provisions of the Constitution must be construed in connection with the

constitution and laws of the states, but it operates for this purpose, if at all, through the states and the state laws, and not directly upon the citizen. It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the states at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. But if it was not, the contrary may with propriety be assumed. When the federal Constitution was adopted, all the states with the exception of Rhode Island and Connecticut had constitutions of their own. These two continued to act under their charters from the Crown. Upon an examination of those constitutions, we find that in no state were all citizens permitted to vote. Each state determined for itself who should have that power. ... In this condition of the law in respect to suffrage in the several states, it cannot for a moment be doubted that if it had been intended to make all citizens of the United States voters, the framers of the Constitution would not have left it to implication. So important a change in the condition of citizenship as it actually existed, if intended, would have been expressly declared. But if further proof is necessary to show that no such change was intended, it can easily be found both in and out of the Constitution. By Article IV, Section 2, it is provided that “The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.” If suffrage is necessarily a part of citizenship, then the citizens of each state must be entitled to vote in the several states precisely as their citizens are. This is more than asserting that they may change their residence and become citizens of the state and thus be voters. It goes to the extent of insisting that, while retaining their original citizenship, they may vote in any state. This, we think, has never been claimed. And again, by the very terms of the amendment we have been considering (the fourteenth), “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, ex659

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other parts of the instrument and in the light of the surrounding circumstances. The guaranty is of a republican form of government. No particular government is designated as republican; neither is the exact form to be guaranteed in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended. The guaranty necessarily implies a duty on the part of the states themselves to provide such a government. All the states had governments when the Constitution was adopted. In all, the people participated to some extent, through their representatives elected in the manner specially provided. These governments the Constitution did not change. They were accepted precisely as they were, and it is therefore to be presumed that they were such as it was the duty of the states to provide. Thus we have unmistakable evidence of what was republican in form, within the meaning of that term as employed in the Constitution. As has been seen, all the citizens of the states were not invested with the right of suffrage. In all save perhaps New Jersey, this right was only bestowed upon men, and not upon all of them. Under these circumstances, it is certainly now too late to contend that a government is not republican, within the meaning of this guaranty in the Constitution, because women are not made voters. The same may be said of the other provisions just quoted. Women were excluded from suffrage in nearly all the states by the express provision of their constitutions and laws. If that had been equivalent to a bill of attainder, certainly its abrogation would not have been left to implication. Nothing less than express language would have been employed to effect so radical a change. So also of the amendment which declares that no person shall be deprived of life, liberty, or property without due process of law, adopted as it was as early as 1791. If suffrage was intended to be included within its obligations, language better adapted to express that intent would most certainly have been employed. The right of suffrage, when granted, will be protected. He who has it can only be deprived of it by due process of law, but in order to claim protection, he must first show that he has the right. But we have already sufficiently considered the proof found upon the inside of the Constitution. That upon the outside is equally effective. The Constitution was submitted to the states for

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adoption in 1787, and was ratified by nine states in 1788, and finally by the thirteen original states in 1790. Vermont was the first new state admitted to the Union, and it came in under a constitution which conferred the right of suffrage only upon men of the full age of twenty-­ one years, having resided in the state for the space of one whole year next before the election, and who were of quiet and peaceable behavior. This was in 1791. The next year, 1792, Kentucky followed with a constitution confining the right of suffrage to free male citizens of the age of twenty-­one years who had resided in the state two years or in the county in which they offered to vote one year next before the election. Then followed Tennessee, in 1796, with voters of freemen of the age of twenty-­ one years and upwards, possessing a freehold in the county wherein they may vote, and being inhabitants of the state or freemen being inhabitants of anyone county in the state six months immediately preceding the day of election. But we need not particularize further. No new state has ever been admitted to the Union which has conferred the right of suffrage upon women, and this has never been considered a valid objection to her admission. On the contrary, as is claimed in the argument, the right of suffrage was withdrawn from women as early as 1807 in the State of New Jersey without any attempt to obtain the interference of the United States to prevent it. Since then, the governments of the insurgent states have been reorganized under a requirement that before their representatives could be admitted to seats in Congress, they must have adopted new constitutions, republican in form. In no one of these constitutions was suffrage conferred upon women, and yet the states have all been restored to their original position as states in the Union. Besides this, citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage. Thus, in Missouri, persons of foreign birth, who have declared their intention to become citizens of the United States, may under certain circumstances vote. The same provision is to be found in the Constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, and Texas. Certainly if the courts can consider any question settled, this is one. For nearly ninety years, the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage. If uniform practice long continued can settle the construction of so important an instrument as the Constitution of the United States confessedly is,

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most certainly it has been done here. Our province is to decide what the law is, not to declare what it should be. We have given this case the careful consideration its importance demands. If the law is wrong, it ought to be changed; but the power for that is not with us. The arguments addressed to us bearing upon such a view of the subject may perhaps be sufficient to induce those having the power to make the alteration, but they ought not to be permitted to influence our judgment in determining the present rights of the parties now litigating before us. No argument as to woman’s need of suffrage can be considered. We can only act upon her rights as they exist. It is not for us to look at the hardship of withholding. Our duty is at an end if we find it is within the power of a state to withhold. Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon anyone, and that the constitutions and laws of the several states which commit that important trust to men alone are not necessarily void, we Affirm the judgment.

8 United States v. Reese 92 U.S. 214 (1876)

Mr. CHIEF JUSTICE WAITE delivered the opinion of the court. This case comes here by reason of a division of opinion between the judges of the Circuit Court in the District of Kentucky. It presents an indictment containing four counts, under sects. 3 and 4 of the act of May 31, 1870 (16 Stat. 140), against two of the inspectors of a municipal election in the State of Kentucky, for refusing to receive and count at such election the vote of William Garner, a citizen of the United States of African descent. All the questions presented by the certificate of division arose upon general demurrers to the several counts of the indictment. In this court the United States abandon the first and third counts, and expressly waive the consideration of all claims not arising out of the enforcement of the Fifteenth Amendment of the Constitution. After this concession, the principal question left for consideration is, whether the act under which the indictment is found

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can be made effective for the punishment of inspectors of elections who refuse to receive and count the votes of citizens of the United States, having all the qualifications of voters, because of their race, color, or previous condition of servitude. If Congress has not declared an act done within a State to be a crime against the United States, the courts have no power to treat it as such. U.S. v. Hudson, 7 Cranch, 32. It is not claimed that there is any statute which can reach this case, unless it be the one in question. Looking, then, to this statute, we find that its first section provides that all citizens of the United States, who are or shall be otherwise qualified by law to vote at any election, &c., shall be entitled and allowed to vote thereat, without distinction of race, color, or previous condition of servitude, any constitution, &c., of the State to the contrary notwithstanding. This simply declares a right, without providing a punishment for its violation. The second section provides for the punishment of any officer charged with the duty of furnishing to citizens an opportunity to perform any act, which, by the constitution or laws of any State, is made a prerequisite or qualification of voting, who shall omit to give all citizens of the United States the same and equal opportunity to perform such prerequisite, and become qualified on account of the race, color, or previous condition of servitude, of the applicant. This does not apply to or include the inspectors of an election, whose only duty it is to receive and count the votes of citizens, designated by law as voters, who have already become qualified to vote at the election. The third section is to the effect, that, whenever by or under the constitution or laws of any State, &c., any act is or shall be required to be done by any citizen as a prerequisite to qualify or entitle him to vote, the offer of such citizen to perform the act required to be done “as aforesaid” shall, if it fail to be carried into execution by reason of the wrongful act or omission “aforesaid” of the person or officer charged with the duty of receiving or permitting such performance, or offer to perform, or acting thereon, be deemed and held as a performance in law of such act; and the person so offering and failing as aforesaid, and being otherwise qualified, shall be entitled to vote in the same manner, and to the same extent, as if he had, in fact, performed such act; and any judge, inspector, or other officer of election, whose duty it is to receive, count, &c., or give effect to, the vote of

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any such citizen, who shall wrongfully refuse or omit to receive, count, &c., the vote of such citizen, upon the presentation by him of his affidavit stating such offer, and the time and place thereof, and the name of the person or officer whose duty it was to act thereon, and that he was wrongfully prevented by such person or officer from performing such act, shall, for every such offence, forfeit and pay, &c. The fourth section provides for the punishment of any person who shall, by force, bribery, threats, intimidation, or other unlawful means, hinder, delay, &c., or shall combine with others to hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote, or from voting, at any election. The second count in the indictment is based upon the fourth section of this act, and the fourth upon the third section. Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress. The form and the manner of the protection may be such as Congress, in the legitimate exercise of its legislative discretion, shall provide. These may be varied to meet the necessities of the particular right to be protected. The Fifteenth Amendment does not confer the right of suffrage upon any one. It prevents the States, or the United States, however, from giving preference, in this particular, to one citizen of the United States over another on account of race, color, or previous condition of servitude. Before its adoption, this could be done. It was as much within the power of a State to exclude citizens of the United States from voting on account of race, &c., as it was on account of age, property, or education. Now it is not. If citizens of one race having certain qualifications are permitted by law to vote, those of another having the same qualifications must be. Previous to this amendment, there was no constitutional guaranty against this discrimination: now there is. It follows that the amendment has invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. This, under the express provisions of the second section of the amendment, Congress may enforce by “appropriate legislation.” This leads us to inquire whether the act now under

consideration is “appropriate legislation” for that purpose. The power of Congress to legislate at all upon the subject of voting at State elections rests upon this amendment. The effect of art. 1, sect. 4, of the Constitution, in respect to elections for senators and representatives, is not now under consideration. It has not been contended, nor can it be, that the amendment confers authority to impose penalties for every wrongful refusal to receive the vote of a qualified elector at State elections. It is only when the wrongful refusal at such an election is because of race, color, or previous condition of servitude, that Congress can interfere, and provide for its punishment. If, therefore, the third and fourth sections of the act are beyond that limit, they are unauthorized. The third section does not in express terms limit the offence of an inspector of elections, for which the punishment is provided, to a wrongful discrimination on account of race, &c. This is conceded; but it is urged, that when this section is construed with those which precede it, and to which, as is claimed, it refers, it is so limited. The argument is, that the only wrongful act, on the part of the officer whose duty it is to receive or permit the requisite qualification, which can dispense with actual qualification under the State laws, and substitute the prescribed affidavit therefor, is that mentioned and prohibited in sect. 2,—to wit, discrimination on account of race, &c., and that, consequently, sect. 3 is confined in its operation to the same wrongful discrimination. ... We are, therefore, directly called upon to decide whether a penal statute enacted by Congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which Congress may rightfully prohibit and punish. For this purpose, we must take these sections of the statute as they are. We are not able to reject a part which is unconstitutional, and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there. Each of the sections must stand as a whole, or fall altogether. The language is plain. There is no room for construction, unless it be as to the effect of the Constitution. The question, then, 662

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that by the statute of Kentucky, to entitle one to vote at an election in that State, the voter must possess certain qualifications recited, and have paid a capitation-­tax assessed by the city of Lexington; that James F. Robinson was the collector of said city, entitled to collect said tax; that Garner, in order that he might be entitled to vote, did offer to said Robinson, at his office, to pay any capitation-­tax which had been or could be assessed against him, or which was claimed against him; that Robinson refused to receive such tax on account of the race and color of Garner; that at the time of the election, having the other necessary qualifications, Garner offered his vote, and at the same time presented an affidavit to the inspector stating his offer aforesaid made to Robinson, with the particulars required by the statute, and the refusal of Robinson to receive the tax; that Farnaugh consented to receive his vote, but the defendants, constituting a majority of the inspectors, wrongfully refused to receive the same, which refusal was on account of the race and color of the said Garner. This indictment is based upon the act of Congress of May 31, 1870. 16 Stat. 140. The first four sections of the act are as follows:— ... It is said, in opposition to this indictment and in hostility to the statute under which it is drawn, that while the second section makes it a penal offence for any officer to refuse an opportunity to perform the prerequisite therein referred to on account of the race and color of the party, and therefore an indictment against that officer may be good as in violation of the Fifteenth Amendment, the third section, which relates to the inspectors of elections, omits all reference to race and color, and therefore no indictment can be sustained against those officers. It is said that Congress has no power to punish for violation of the rights of an elector generally, but only where such violation is attributable to race, color, or condition. It is said, also, that the prohibition of an act by Congress in general language is not a prohibition of that act on account of race or color. Hence it is insisted that both the statute and the indictment are insufficient. This I understand to be the basis of the opinion of the majority of the court. On this I observe,— 1. That the intention of Congress on this subject is too plain to be discussed. The Fifteenth Amendment had just been adopted, the object of which was to secure to a lately enslaved population protection against vio-

to be determined, is, whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only. It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government. The courts enforce the legislative will when ascertained, if within the constitutional grant of power. Within its legitimate sphere, Congress is supreme, and beyond the control of the courts; but if it steps outside of its constitutional limitations, and attempts that which is beyond its reach, the courts are authorized to, and when called upon in due course of legal proceedings must, annul its encroachments upon the reserved power of the States and the people. To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty. We must, therefore, decide that Congress has not as yet provided by “appropriate legislation” for the punishment of the offence charged in the indictment; and that the Circuit Court properly sustained the demurrers, and gave judgment for the defendants. This makes it unnecessary to answer any of the other questions certified. Since the law which gives the presiding judge the casting vote in cases of division, and authorizes a judgment in accordance with his opinion (Rev. Stat., sect. 650), if we find that the judgment as rendered is correct, we need not do more than affirm. If, however, we reverse, all questions certified, which may be considered in the final determination of the case according to the opinion we express, should be answered. Judgment affirmed. ...

Mr. Justice HUNT:— I am compelled to dissent from the judgment of the court in this case. The defendants were indicted in the Circuit Court of the United States for the District of Kentucky. Upon the trial, the defendants were, by the judgment of the court, discharged from the indictment on account of its alleged insufficiency. The fourth count of the indictment contains the allegations concerning the election in the city of Lexington;

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lations of their right to vote on account of their color or previous condition. The act is entitled “An Act to enforce the right of citizens of the United States to vote in the several States of the Union, and for other purposes.” The first section contains a general announcement that such right is not to be embarrassed by the fact of race, color, or previous condition. The second section requires that equal opportunity shall be given to the races in providing every prerequisite for voting, and that any officer who violates this provision shall be subject to civil damages to the extent of $500, and to fine and imprisonment. To suppose that Congress, in making these provisions, intended to impose no duty upon, and subject to no penalty, the very officers who were to perfect the exercise of the right to vote,—to wit, the inspectors who receive or reject the votes,—would be quite absurd. ... An examination of the surrounding circumstances, a knowledge of the evil intended to be prevented, a clear statement in the statute of the acts prohibited and made punishable, a certain knowledge of the legislative intention, furnish a rule by which the language of the statute before us is to be construed. The motives instigating the acts forbidden, and by which those acts are brought within the jurisdiction of the Federal authority, need not be set forth with the technical minuteness to which reference has been made. The intent is fully set forth in the second section; and the court below ought to have held, that, by the references in the third and fourth sections to the motives and instigations declared in the second section, they were incorporated into and became a part of the third and fourth sections, and that a sufficient offence against the United States authority was therein stated. I hold, therefore, that the third and fourth sections of the statute we are considering do provide for the punishment of inspectors of elections who refuse the votes of qualified electors on account of their race or color. The indictment is sufficient, and the statute sufficiently describes the offence.

9 United States v. Cruikshank 92 U.S. 542 (1876)

Mr. CHIEF JUSTICE WAITE delivered the opinion of the court. This case comes here with a certificate by the judges of the Circuit Court for the District of Louisiana that they were divided in opinion upon a question which occurred at the hearing. It presents for our consideration an indictment containing sixteen counts, divided into two series of eight counts each, based upon sect. 6 of the Enforcement Act of May 31, 1870. That section is as follows— “That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court—the fine not to exceed $5,000, and the imprisonment not to exceed ten years—and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, or trust created by the Constitution or laws of the United States.” 16 Stat. 141. The question certified arose upon a motion in arrest of judgment after a verdict of guilty generally upon the whole sixteen counts, and is stated to be whether “the said sixteen counts of said indictment are severally good and sufficient in law, and contain charges of criminal matter indictable under the laws of the United States.” The general charge in the first eight counts is that of “banding,” and in the second eight that of “conspiring” together to injure, oppress, threaten, and intimidate Levi Nelson and Alexander Tillman, citizens of the United States, of African descent and persons of color, with the intent thereby to hinder and prevent them in their free exercise and enjoyment of rights and privi664

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union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty” to themselves and their posterity (Const. Preamble), ordained and established the government of the United States, and defined its powers by a Constitution, which they adopted as its fundamental law, and made its rule of action. The government thus established and defined is to some extent a government of the States in their political capacity. It is also, for certain purposes, a government of the people. Its powers are limited in number, but not in degree. Within the scope of its powers, as enumerated and defined, it is supreme, and above the States; but beyond, it has no existence. It was erected for special purposes, and endowed with all the powers necessary for its own preservation and the accomplishment of the ends its people had in view. It can neither grant nor secure to its citizens any right or privilege not expressly or by implication placed under its jurisdiction. The people of the United States resident within any State are subject to two governments—one State and the other National—but there need be no conflict between the two. The powers which one possesses the other does not. They are established for different purposes, and have separate jurisdictions. Together, they make one whole, and furnish the people of the United States with a complete government, ample for the protection of all their rights at home and abroad. True, it may sometimes happen that a person is amenable to both jurisdictions for one and the same act. Thus, if a marshal of the United States is unlawfully resisted while executing the process of the courts within a State, and the resistance is accompanied by an assault on the officer, the sovereignty of the United States is violated by the resistance, and that of the State by the breach of peace in the assault. So, too, if one passes counterfeited coin of the United States within a State, it may be an offence against the United States and the State: the United States because it discredits the coin, and the State because of the fraud upon him to whom it is passed. This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship which owes allegiance to two sovereignties and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the

leges “granted and secured” to them “in common with all other good citizens of the United States by the Constitution and laws of the United States.” The offences provided for by the statute in question do not consist in the mere “banding” or “conspiring” of two or more persons together, but in their banding or conspiring with the intent, or for any of the purposes, specified. To bring this case under the operation of the statute, therefore, it must appear that the right, the enjoyment of which the conspirators intended to hinder or prevent, was one granted or secured by the Constitution or laws of the United States. If it does not so appear, the criminal matter charged has not been made indictable by any act of Congress. We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other. Slaughter-­House Cases, 16 Wall. 74. Citizens are the members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights. In the formation of a government, the people may confer upon it such powers as they choose. The government, when so formed, may, and when called upon should, exercise all the powers it has for the protection of the rights of its citizens and the people within its jurisdiction, but it can exercise no other. The duty of a government to afford protection is limited always by the power it possesses for that purpose. Experience made the fact known to the people of the United States that they required a national government for national purposes. The separate governments of the separate States, bound together by the articles of confederation alone, were not sufficient for the promotion of the general welfare of the people in respect to foreign nations, or for their complete protection as citizens of the confederated States. For this reason, the people of the United States, “in order to form a more perfect 665

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two departments, so to speak, and, within their respective spheres, must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction. The Government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people. No rights can be acquired under the Constitution or laws of the United States, except such as the Government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States. We now proceed to an examination of the indictment, to ascertain whether the several rights, which it is alleged the defendants intended to interfere with, are such as had been in law and in fact granted or secured by the Constitution or laws of the United States. The first and ninth counts state the intent of the defendants to have been to hinder and prevent the citizens named in the free exercise and enjoyment of their “lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceful and lawful purpose.” The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It “derives its source,” to use the language of Chief Justice Marshall in Gibbons  v. Ogden, 9 Wheat. 1, 22 U. S. 211, “from those laws whose authority is acknowledged by civilized man throughout the world.” It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The Government of the United States, when established, found it in existence, with the obligation on the part of the States to afford it protection. As no direct power over it was granted to Congress, it remains, according to the ruling in Gibbons v. Ogden, id., 22 U. S. 203, subject to State jurisdiction. Only such existing rights were committed by the people to the protection of Congress as came within the general scope of the authority granted to the national government. The first amendment to the Constitution prohibits Congress from abridging “the right of the people to assemble and to petition the government for a redress of grievances.” This, like the other amendments proposed and adopted at the same time, was not intended to limit

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the powers of the State governments in respect to their own citizens, but to operate upon the National Government alone. Barron v. The City of Baltimore, 7 Pet. 250; Lessee of Livingston v. Moore, id., 551; Fox v. Ohio, 5 How. 434; Smith  v. Maryland, 18 id. 76; Withers  v. Buckley, 20 id. 90; Pervear  v. The Commonwealth, 5 Wall. 479; Twitchell  v. The Commonwealth, 7 id. 321; Edwards  v. Elliott, 21 id. 557. It is now too late to question the correctness of this construction. As was said by the late Chief Justice, in Twitchell v. The Commonwealth, 7 Wall. 325, “the scope and application of these amendments are no longer subjects of discussion here.” They left the authority of the States just where they found it, and added nothing to the already existing powers of the United States. The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States. The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government republican in form implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States. Such, however, is not the case. The offence, as stated in the indictment, will be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever. The second and tenth counts are equally defective. The right there specified is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be

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infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the “powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,” “not surrendered or restrained” by the Constitution of the United States. The third and eleventh counts are even more objectionable. They charge the intent to have been to deprive the citizens named, they being in Louisiana, “of their respective several lives and liberty of person without due process of law.” This is nothing else than alleging a conspiracy to falsely imprison or murder citizens of the United States, being within the territorial jurisdiction of the State of Louisiana. The rights of life and personal liberty are natural rights of man. “To secure these rights,” says the Declaration of Independence, “governments are instituted among men, deriving their just powers from the consent of the governed.” The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these “unalienable rights with which they were endowed by their Creator.” Sovereignty, for this purpose, rests alone with the States. It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself. The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society. As was said by Mr. Justice Johnson, in Bank of Columbia v. Okely, 4 Wheat. 244, it secures “the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.” These counts in the indictment do not call for the exercise of any of the powers conferred by this provision in the amendment. The fourth and twelfth counts charge the intent to have been to prevent and hinder the citizens named, who were of African descent and persons of color, in “the free exercise and enjoyment of their several right and privilege to the full and equal benefit of all laws and

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proceedings, then and there, before that time, enacted or ordained by the said State of Louisiana and by the United States, and then and there, at that time, being in force in the said State and District of Louisiana aforesaid, for the security of their respective persons and property, then and there, at that time enjoyed at and within said State and District of Louisiana by white persons, being citizens of said State of Louisiana and the United States, for the protection of the persons and property of said white citizens.” There is no allegation that this was done because of the race or color of the persons conspired against. When stripped of its verbiage, the case as presented amounts to nothing more than that the defendants conspired to prevent certain citizens of the United States, being within the State of Louisiana, from enjoying the equal protection of the laws of the State and of the United States. The Fourteenth Amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add anything to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty. No question arises under the Civil Rights Act of April 9, 1866 (14 Stat. 27), which is intended for the protection of citizens of the United States in the enjoyment of certain rights, without discrimination on account of race, color, or previous condition of servitude, because, as has already been stated, it is nowhere alleged in these counts that the wrong contemplated against the rights of these citizens was on account of their race or color. Another objection is made to these counts that they are too vague and uncertain. This will be considered hereafter, in connection with the same objection to other counts. The sixth and fourteenth counts state the intent of the defendants to have been to hinder and prevent the citizens named, being of African descent, and colored, “in the free exercise and enjoyment of their several and

Appendix

respective right and privilege to vote at any election to be thereafter by law had and held by the people in and of the said State of Louisiana, or by the people of and in the parish of Grant aforesaid.” In Minor v. Happersett, 21 Wall. 178, we decided that the Constitution of the United States has not conferred the right of suffrage upon anyone, and that the United States have no voters of their own creation in the States. In United States v. Reese et al., supra, p. 92 U. S. 214, we hold that the Fifteenth Amendment has invested the citizens of the United States with a new constitutional right, which is, exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. From this, it appears that the right of suffrage is not a necessary attribute of national citizenship, but that exemption from discrimination in the exercise of that right on account of race, &c., is. The right to vote in the States comes from the States, but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the Constitution of the United States, but the last has been. Inasmuch, therefore, as it does not appear in these counts that the intent of the defendants was to prevent these parties from exercising their right to vote on account of their race, &c., it does not appear that it was their intent to interfere with any right granted or secured by the Constitution or laws of the United States. We may suspect that race was the cause of the hostility, but it is not so averred. This is material to a description of the substance of the offence, and cannot be supplied by implication. Everything essential must be charged positively, and not inferentially. The defect here is not in form, but in substance. The seventh and fifteenth counts are no better than the sixth and fourteenth. The intent here charged is to put the parties named in great fear of bodily harm, and to injure and oppress them, because, being and having been in all things qualified, they had voted “at an election before that time had and held according to law by the people of the said State of Louisiana, in said State, to-­wit, on the fourth day of November, A.D. 1872, and at divers other elections by the people of the State, also before that time had and held according to law.” There is nothing to show that the elections voted at were any other than State elections, or that the conspiracy was formed on account of the race of the parties against whom the conspirators were to act. The charge as made is really of nothing more than a conspiracy to

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commit a breach of the peace within a State. Certainly it will not be claimed that the United States have the power or are required to do mere police duly in the States. If a State cannot protect itself against domestic violence, the United States may, upon the call of the executive, when the legislature cannot be convened, lend their assistance for that purpose. This is a guaranty of the Constitution (art. 4, sect. 4), but it applies to no case like this. We are therefore of the opinion that the first, second, third, fourth, sixth, seventh, ninth, tenth, eleventh, twelfth, fourteenth, and fifteenth counts do not contain charges of a criminal nature made indictable under the laws of the United States, and that consequently they are not good and sufficient in law. They do not show that it was the intent of the defendants, by their conspiracy, to hinder or prevent the enjoyment of any right granted or secured by the Constitution. We come now to consider the fifth and thirteenth and the eighth and sixteenth counts, which may be brought together for that purpose. The intent charged in the fifth and thirteenth is “to hinder and prevent the parties in their respective free exercise and enjoyment of the rights, privileges, immunities, and protection granted and secured to them respectively as citizens of the United States, and as citizens of said State of Louisiana . . . for the reason that they, . . . being then and there citizens of said State and of the United States, were persons of African descent and race, and persons of color, and not white citizens thereof;” and in the eighth and sixteenth, to hinder and prevent them “in their several and respective free exercise and enjoyment of every, each, all, and singular the several rights and privileges granted and secured to them by the Constitution and laws of the United States.” The same general statement of the rights to be interfered with is found in the fifth and thirteenth counts. According to the view we take of these counts, the question is not whether it is enough, in general, to describe a statutory offence in the language of the statute, but whether the offence has here been described at all. The statute provides for the punishment of those who conspire “to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States.” These counts in the indictment charge, in substance that the intent in this case was to hinder and prevent

App e n d i x , d o c . 9

these citizens in the free exercise and enjoyment of “every, each, all, and singular” the rights granted them by the Constitution, &c. There is no specification of any particular right. The language is broad enough to cover all. In criminal cases, prosecuted under the laws of the United States, the accused has the constitutional right “to be informed of the nature and cause of the accusation.” Amend. VI. In United States v. Mills, 7 Pet. 142, this was construed to mean that the indictment must set forth the offence “with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged;” and in United States v. Cook, 17 Wall. 174 that “every ingredient of which the offence is composed must be accurately and clearly alleged.” It is an elementary principle of criminal pleading that, where the definition of an offence, whether it be at common law or by statute, “includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition, but it must state the species—it must descend to particulars.” 1 Arch. Cr.Pr. and Pl. 291. The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances. It is a crime to steal goods and chattels, but an indictment would be bad that did not specify with some degree of certainty the articles stolen. This because the accused must be advised of the essential particulars of the charge against him, and the court must be able to decide whether the property taken was such as was the subject of larceny. So, too, it is in some States a crime for two or more persons to conspire to cheat and defraud another out of his property, but it has been held that an indictment for such an offence must contain allegations setting forth the means proposed to be used to accomplish the purpose. This because, to make such a purpose criminal, the conspiracy must be to cheat and

defraud in a mode made criminal by statute; and, as all cheating and defrauding has not been made criminal, it is necessary for the indictment to state the means proposed, in order that the court may see that they are in fact illegal. State v. Parker, 43 N. H. 83; State v. Keach, 40 Vt. 118; Alderman v. The People, 4 Mich. 414; State v. Roberts, 34 Me. 32. In Maine, it is an offence for two or more to conspire with the intent unlawfully and wickedly to commit any crime punishable by imprisonment in the State prison (State v. Roberts), but we think it will hardly be claimed that an indictment would be good under this statute which charges the object of the conspiracy to have been “unlawfully and wickedly to commit each, every, all, and singular the crimes punishable by imprisonment in the State prison.” All crimes are not so punishable. Whether a particular crime be such a one or not is a question of law. The accused has, therefore, the right to have a specification of the charge against him in this respect in order that he may decide whether he should present his defence by motion to quash, demurrer, or plea, and the court that it may determine whether the facts will sustain the indictment. So here, the crime is made to consist in the unlawful combination with an intent to prevent the enjoyment of any right granted or secured by the Constitution, &c. All rights are not so granted or secured. Whether one is so or not is a question of law, to be decided by the court, not the prosecutor. Therefore, the indictment should state the particulars, to inform the court as well as the accused. It must be made to appear—that is to say, appears from the indictment, without going further—that the acts charged will, if proved, support a conviction for the offence alleged. But it is needless to pursue the argument further. The conclusion is irresistible that these counts are too vague and general. They lack the certainty and precision required by the established rules of criminal pleading. It follows that they are not good and sufficient in law. They are so defective that no judgment of conviction should be pronounced upon them. The order of the Circuit Court arresting the judgment upon the verdict is, therefore, affirmed; and the cause remanded, with instructions to discharge the defendants.* * [Concurrence by Justice Clifford omitted. —Ed.]

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Acknowledgments I am deeply indebted to a great many people for their help and inspiration as this project moved from dream to reality. More than once, researching, identifying, transcribing, and editing thousands of historical documents left me in despair over ever completing this collection. It was the ever-­present friendship and encouragement of a great community of scholars that kept me going even when the task seemed overwhelming. The seeds of this project were planted during multiple conversations with Professor Michael Kent Curtis, whose own work on the history of the Fourteenth Amendment has inspired generations of constitutional historians. What began as our common lament that scholars lacked a general collection of primary documents relating to the Fourteenth Amendment over time transformed into conversations about how to shape such a collection. When I finally decided to undertake the task, it was with Michael’s enormously helpful insights and suggestions. At every stage of this project, I have relied upon the work of earlier historians who first identified and discussed many of the primary documents that appear in this collection. Of particular help were Michael Les Benedict’s A Compromise of Principle: Congressional Republicans and Reconstruction, 1863– 1869; Eric L. McKitrick’s Andrew Johnson and Reconstruction; G. Edward White’s Law in American History, Volume 1: From the Colonial Years through the Civil War; and Eric Foner’s Reconstruction: America’s Unfinished Revolution, 1863–1877. My thinking about the critical events of Constitutional reconstruction was deeply influenced by the works of my former instructors at Yale Law School, in particular Akhil Amar’s Bill of Rights: Creation and Reconstruction and Bruce Ackerman’s We the People, Volumes I and II. Of the numerous works on the Civil War that I consulted during this project, I have returned most often to James McPherson’s outstanding Battle Cry of Freedom: The Civil War Era. For Civil War casualty statistics on the dead and wounded, I relied upon David J. Eicher’s The Longest Night: A Military History of the Civil War. Most of all, I credit Michael Kent Curtis’s groundbreaking book No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights with inspiring a generation of Reconstruction-­era constitutional historians (myself included). Other extremely helpful works included the following: Edward L. Ayers, In the Presence of Mine Enemies: War in the Heart of America, 1859–1863; Daniel W. Crofts, Lincoln and the Politics of Slavery: The Other Thirteenth Amendment and the Struggle to Save the Union; W. E. B. Du Bois, Black Reconstruction in America; Faye E. Dudden, Fighting Chance: The Struggle over Woman Suffrage and Black Suffrage in Reconstruction America; James G. Hollandsworth Jr., An

Absolute Massacre: The New Orleans Race Riot of July 30, 1866; Joseph B. James, The Ratification of the Fourteenth Amendment; Martha S. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America; Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment; Earl Maltz, Civil Rights, the Constitution and Congress, 1863–1869; William Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine; George Rutherglen, Civil Rights in the Shadow of Slavery; Wendy Hamand Venet, Neither Ballots nor Bullets: Women Abolitionists and the Civil War; Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment; and Rebecca Zietlow, The Forgotten Emancipator: James Mitchell Ashley and the Ideological Origins of Reconstruction. I have also greatly benefited from the legal and historical insights found in the works of Christopher Green, Lea VanderVelde, Paul Finkelman, James Fox, Lee Strang, Garrett Epps, David Upham, Randy Barnett, Allen Guelzo, Reva Siegel, and John Harrison. Special thanks to those scholars who agreed to review and comment on early drafts of the proposed table of contents. Their suggestions have helped me avoid a number of embarrassing omissions as well as determine what could use paring down. My thanks in this regard to Ed Ayers, Chris Fritz, Earl Maltz, Michael McConnell, George Rutherglen, and Rebecca Zietlow. My sincerest thanks to those colleagues and scholars who agreed to review the entire manuscript, or at least significant portions of it, and comment on its construction and presentation. Among these people are Ed Ayers, Michael Les Benedict, Allen Guelzo, Martha Jones, Earl Maltz, Michael McConnell, William Nelson, Reva Siegel, Lawrence Solum, G. Edward White, and Rebecca Zietlow. I am especially indebted to G. Edward White for his generous encouragement and advice from the earliest stages of this project to its final completion. The scholarly communities at the University of Illinois and the University of Richmond both provided richly encouraging environments in which this work could develop. My thanks to deans Bruce Smith (Illinois) and Wendy Perdue (Richmond) for providing me the time, space, and financial assistance necessary for this kind of long-­term scholarly project. I am also grateful to those student research assistants who helped further the project along, including Robert Morse, Tyler Zmick, and Michael Kuntz. Special thanks to my assistant Elizabeth Farrington, who helped organize and oversee a number of student research and editing projects essential to this collection. Most of all, I thank Betsy Kuhn for her invaluable assistance in copyediting the manuscript before I submitted it to the publisher. 671

Acknowledgments death midway through this project was a great loss to me and to the broader scholarly community that Chris did so much to assist. Above all others, in this and in every earthly endeavor, it is the love, encouragement, inspiration, and partnership of my wife, Kelly, for which I am most grateful. Ti amo.

Finally, a sincere, and sincerely sad, acknowledgment that this project would never have gotten off the ground without the warm and enthusiastic encouragement of my first editor at the University of Chicago Press, Christopher Rhodes. Chris and I developed this project over coffee in Champaign, Illinois, and it was Chris’s efforts on my behalf that convinced the press to move forward with the collection. His untimely

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Bi b lio gr aphy Books

Alexander, Frank S., and John Witte Jr., eds. The Teachings of Modern Protestantism on Law, Politics, and Human Nature. New York: Columbia University Press, 2007. Aynes, Richard. “George Washington Paschal.” In American National Biography, edited by John A. Garraty and Mark C. Carnes. New York: Oxford University Press, 1999. Benedict, Michael Les. A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869. New York: Norton, 1974. Butler, Benjamin F. Private and Official Correspondence of Gen. Benjamin F. Butler. Norwood, MA: Plimpton, 1917. Calhoun, John C. A Disquisition on Government and a Discourse on the Constitution and Government of the United States. Edited by Richard K. Cralle. Charleston, SC: Walker & James, 1851. ———. John C. Calhoun: Selected Writings and Speeches. Edited by Lee H. Cheek Jr. Washington, DC: Regnery, 2003. Commager, Henry Steele, ed. Documents of American History. New York: Appleton-­ Century-­Crofts, 1963. Congressional Reports on Woman Suffrage: The Majority and Minority Reports of the Judiciary Committee of the House of Representatives on the Woodhull Memorial. New York: Woodhull, Claflin, 1871. Cooper, Thomas Valentine, ed. American Politics (Non-­partisan) from Beginning to Date, Embodying a History of All the Political Parties, with Their Views and Records on All Important Questions. Chicago: C. R. Brodix, 1883. Crofts, Daniel W., ed. Lincoln and the Politics of Slavery: The Other Thirteenth Amendment and the Struggle to Save the Union. Chapel Hill: University of North Carolina Press, 2016. Dawson, Joseph G., III, ed. The Louisiana Governors: From Iberville to Edwards. Baton Rouge: Louisiana State University Press, 1990. Douglass, Frederick. The Frederick Douglass Papers, Series One. Edited by John W. Blassingame et al. New Haven, CT: Yale University Press, 1991. ———. Frederick Douglass: Selected Speeches and Writing. Edited by Philip S. Foner, abridged and adapted by Yuval Taylor. 2 vols. Chicago: Lawrence Hill Books, 1999. Douglass, Frederick, J. M. Whitfield, H. O. Wagoner, Rev. A. N. Freeman, and

George B. Vashon. Address of the Colored National Convention to the People of the United States. Rochester, New York, July 6–8, 1853. Rochester, NY: Printed at the Office of Frederick Douglass’s Paper, 1853. Eicher, David J. The Longest Night: A Military History of the Civil War. New York: Simon & Schuster, 2001. Elliot, Jonathan, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution. Washington, DC, 1836. Equal Suffrage: Address from the Colored Citizens of Norfolk, Va., to the People of the United States; also an Account of the Agitation among the Colored People of Virginia for Equal Rights. With an Appendix Concerning the Rights of Colored Witnesses before the State Courts. New Bedford, MA, 1865. Farrand, Max, ed. The Records of the Federal Convention of 1787. New Haven, CT: Yale University Press, 1937. Flanders, Henry, and James Mitchell. The Statutes at Large of Pennsylvania from 1682–1801. Harrisburg, PA: State Printers, 1896. Foner, Eric. Reconstruction: America’s Unfinished Revolution, 1863–1877. New York: HarperPerennial, 2014. Ford, Paul Leicester, ed. The Federalist: A Commentary on the Constitution of the United States. New York: Henry Holt, 1898. Garrison, William Lloyd. Selections from the Writings and Speeches of William Lloyd Garrison. Boston: R. F. Wallcut, 1852. Hahn, Michael. Manhood the Basis of Suffrage: Speech of Hon. Michael Hahn of Louisiana, Delivered before the National Equal Suffrage Association of Washington, on Friday Evening, November 17, 1865. Washington, DC: National Equal Suffrage Association, 1865. Hening, William Waller, ed. The Statutes at Large; Being a Collection of All the Laws of Virginia from the First Session of the Legislature, in the Year 1619. Philadelphia: R. & W. & G. Bartow, 1823. James, Joseph B. The Ratification of the Fourteenth Amendment. Macon, GA: Mercer University Press, 1984. Jefferson, Thomas. The Papers of Thomas Jefferson. Princeton, NJ: Princeton University Press, 2003. ———. Thomas Jefferson: Writings. Edited by Merrill D. Peterson. New York: Library of America, 1984. Johnson, Donald Bruce, and Kirk H. Porter, eds. National Party Platforms. Urbana: University of Illinois Press, 1961.

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Johnson, Reinhard O. The Liberty Party, 1840– 1848: Antislavery Third Party Politics in the United States. Baton Rouge: Louisiana State University Press, 2009. Johnson, Reverdy. A Further Consideration of the Dangerous Conditions of the Country, the Causes Which Have Led to It, and the Duty of the People. Baltimore: Sun Printing Establishment, 1867. Kaminski, John P., and Gaspare J. Saladino, eds. Documentary History of the Ratification of the Constitution; Ratification of the Constitution by the States, Virginia. Madison: Wisconsin Historical Society, 1993. Kent, James. Commentaries on American Law. New York: O. Halsted, 1827. Ketcham, Ralph. James Madison. Newton, CT: American Political Biography, 2003. Lincoln, Abraham. Abraham Lincoln, Speeches and Writings, 1859–1865. Edited by Don E. Fehrenbacher. New York: Library of America, 1989. Madison, James. James Madison: Writings. Edited by Jack N. Rakove. New York: Library of America, 1999. ———. Letters and Other Writings of James Madison: Fourth President of the United States. 4 vols. Philadelphia: J. B. Lippincott, 1865. McKitrick, Eric L. Andrew Johnson and Reconstruction. Chicago: University of Chicago Press, 1960. McPherson, Edward, ed. The Political History of the United States of America during the Period of Reconstruction. Washington, DC: Philip & Solomons, 1871. McPherson, James M. Battle Cry of Freedom: The Civil War Era. New York: Oxford University Press, 1988. Moore, Frank, ed. The Rebellion Record, Part II (Documents). New York: G. P. Putnam, 1861. Phillips, Wendell. The Constitution: A Pro-­ slavery Compact; or, Selections from the Madison Papers. New York: American Anti-­Slavery Society, 1844. Proceedings of a Convention of Delegates from the States of Massachusetts, Connecticut, and Rhode Island, the Counties of Cheshire and Grafton in the State of New Hampshire and the County of Windham, in the State of Vermont, Convened at Hartford in the State of Connecticut, December 15, 1814. Boston: Wells and Lilly, 1815. Rossiter, Clinton, ed. The Federalist Papers. McLean edition. New York: Mentor, 1961. Rowland, Dunbar, ed. Publications of the

Bibliography Mississippi Historical Society. Jackson, MI, 1916. Speeches of the Campaign of 1866 in the States of Ohio, Indiana, and Kentucky. Cincinnati, OH: Cincinnati Commercial, 1866. Spooner, Lysander. The Unconstitutionality of Slavery. Boston: Bela Marsh, 1845. Stanton, Elizabeth Cady, Susan B. Anthony, and Matilda Joslyn Gage, eds. History of Woman Suffrage, 1861–1876. Rochester, NY: Fowler and Wells, 1881; 1889. Story, Joseph. Commentaries on the Constitution of the United States. Boston: Hilliard, Gray, 1833. Tiffany, Joel. A Treatise on the Unconstitutionality of American Slavery: Together with the Powers and Duties of the Federal Government in Relation to that Subject. Cleveland, OH: J. Calyer, 1849. Tucker, St. George. Blackstone’s Commentaries with Notes of Reference, to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. Clark, NJ: Lawbook Exchange, 1996. First published 1803. Walker, David. Walker’s Appeal in Four Articles Together with a Preamble to the Colored Citizens of the World, but in Particular and Very Expressly to Those of the United States of America. Boston: Printed for the author, 1829. Whipple, Edwin P. Great Speeches and Orations of Daniel Webster, with an Essay on Daniel Webster as a Master of English Style. Boston: Little, Brown, 1886. Yates, William. Rights of Colored Men to Suffrage, Citizenship and Trial by Jury: Being a Book of Facts, Arguments and Authorities, Historical Notices and Sketches of Debates—with Notes. Philadelphia: Merrihew and Gunn, 1838.

US Government Documents and Sources

Annals of Congress, 15th Cong., 2nd Session (Nov. 19, 1818–­Mar. 3, 1819). Bates, Edward. On Citizenship. Washington, DC: Government Printing Office, 1862. Congressional Globe, 36th Cong., 2nd Session (Dec. 3, 1860–­Mar. 3, 1861). Congressional Globe, 38th Cong., 1st Session (Dec. 7, 1863–­July 4, 1864). Congressional Globe, 38th Cong., 2nd Session (Dec. 5, 1864–­Mar. 3, 1865). Congressional Globe, 39th Cong., 1st Session (Dec. 4, 1865–­July 28, 1866). Congressional Globe, 39th Cong., 2nd Session (Dec. 3, 1866–­Mar. 3, 1867). Congressional Globe, 40th Cong., 2nd Session (Dec. 2, 1867–­Nov. 10, 1868). Congressional Globe, 40th Cong., 3rd Session (Dec. 7, 1868–­Mar. 3, 1869).

Congressional Globe, 41st Cong., 2nd Session (Dec. 6, 1869–­July 15, 1870). Congressional Globe, 41st Cong., 3rd Session (Dec. 5, 1870–­Mar. 3, 1871). Congressional Globe, 42nd Cong., 1st Session (Mar. 4, 1871–­Apr. 20, 1871). Documentary History of the Constitution of the United States of America, 1786–1870. House of Representatives, Document No. 529, 56th Cong., 2nd Sess. Washington, DC: Department of State, 1894. House of Representatives. “Party Divisions of the House of Representatives, 1789 to Present.” History, Art, and Archives. http://history.house.gov/Institution /Party-­Divisions/Party-­Divisions/. Inaugural Addresses of the Presidents of the United States. Bicentennial ed. Washington, DC: Government Printing Office, 1989. Kendrick, Benjamin B. The Journal of the Joint Committee of Fifteen on Reconstruction, 39th Congress, 1865–1867. Clark, NJ: Lawbook Exchange, 2005. First published by Columbia University, 1914. Miller, Hunter, ed. Treaties and Other International Acts of the United States of America. Washington, DC: Government Printing Office, 1931. Minot, George ed. United States Statutes at Large. Vol. 9, Dec. 1845–­Mar. 1851. Boston: Little, Brown, 1862. Minot, George, and George P. Sanger, eds. United States Statutes at Large. Vol. 11, Dec. 1855–­Mar. 1859. Boston: Little, Brown, 1859. Peters, Richard, ed. United States Statutes at Large. Vol. 1, 1789–­Mar. 1845. Boston: Little, Brown, 1845. Sanger, George P., ed. United States Statutes at Large. Vol. 12, Dec. 1859–­Mar. 1863. Boston: Little, Brown, 1866. ———. United States Statutes at Large. Vol. 13, Dec. 1863–­Dec. 1865. Boston: Little, Brown, 1866. ———. United States Statutes at Large. Vol. 14, Dec. 1865–­Mar. 1867. Boston: Little, Brown, 1868. ———. United States Statutes at Large. Vol. 15, Dec. 1867–­Mar. 1869. Boston: Little, Brown, 1869. ———. United States Statutes at Large. Vol. 16, Dec. 1869–­Mar. 1871. Boston: Little, Brown, 1871. Tansill, Charles C., ed. Documents Illustrative of the Formation of the Union of the American States. Washington, DC: Government Printing Office, 1927.

State Documents and Sources

Alabama Senate Journal, 1866–1867, 1868. Arkansas Senate Journal, 1866–1867, 1868.

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California House Journal, 1869–1870. Delaware House Journal, 1867. Florida House Journal, 1866. Florida Senate Journal, 1868. Georgia House Journal, 1869, 1870. Georgia Senate Journal, 1869. Indiana: Brevier Legislative Reports of the General Assembly of the State of Indiana, 1865. Indiana House Journal, 1867, 1869. Indiana Senate Journal, 1867. Indiana: Brevier Legislative Reports of the General Assembly of the State of Indiana, Special Session, 1869. Iowa House Journal, 1868, 1870. Iowa Senate Journal, 1868. Kansas Senate Journal, 1867, 1870. Kentucky House Journal, 1869. Kentucky Senate Journal, 1869. Maryland Senate Journal, 1867. Massachusetts Personal Liberty Act, Acts and Resolves Passed by the General Court, 1855. Michigan House Journal, 1869. Mississippi Senate Journal, 1867. Missouri Senate Journal, 1869. Nebraska House Journal, 1867. Nebraska Senate Journal, 1867. New Hampshire House Journal, 1866. New Hampshire Senate Journal, 1866. New Jersey: Debates In the Eighty-­Ninth General Assembly of the State of New Jersey on the Bill to Ratify an Amendment to the Constitution of the United States, 1865. New Jersey: Acts of the Ninety-­Second Legislature of the State of New Jersey, 1868. New Jersey Senate Journal, 1868. New York Assembly Journal, 1865, 1867. New York Senate Journal, 1867, 1869. North Carolina: Acts Passed by the General Assembly of the State of North Carolina at the Session of 1830–31, 1831. North Carolina: Journal of the House of Commons of the General Assembly of the State of North Carolina, 1866–1867. North Carolina: Journal of the Senate of the General Assembly of the State of North Carolina, 1866–1867. North Carolina House Journal, 1868. North Carolina Senate Journal, 1868. Ohio Senate Journal, 1870. Pennsylvania, Laws of the General Assembly of the Commonwealth of Pennsylvania Passed at the Session of 1847, 1847. Pennsylvania: Appendix to the Legislative Record, 1866. Pennsylvania House Journal, 1867. Pennsylvania Senate Journal, 1867. South Carolina House Journal, 1866, 1868 (Special Session), 1869. South Carolina Senate Journal, 1865, 1869. Tennessee House Journal, 1866, 1869–1870. Tennessee Senate Journal, 1866, 1869–1870. Texas House Journal, 1866. Vermont House Journal, 1866. Vermont Senate Journal, 1866.

Bibliography Virginia Senate Journal, 1869. West Virginia Senate Journal, 1867. Wisconsin Assembly Journal, 1859. Wisconsin House Journal, 1867. Wisconsin Senate Journal, 1867.

Newspapers and Periodicals Albany Evening Journal Atlantic Monthly Boston Daily Journal Charleston Courier (SC) Chicago Tribune Cincinnati Daily Gazette Cleveland Plain Dealer Commercial Tribune (Cincinnati, OH) Crisis (Columbus, OH) Daily Age (Philadelphia, PA) Daily Eastern Argus (Portland, ME) Daily Evening Bulletin (San Francisco, CA) Daily National Intelligencer (Washington, DC) Daily State Register (Des Moines, IA)

Evening Post (New York, NY) Evening Telegraph (Philadelphia, PA) Frank Leslie’s Illustrated Newspaper (New York, NY) Harper’s Weekly Liberator (Boston, MA) National Anti-­Slavery Standard (New York, NY) New Orleans Times New York Daily Tribune New York Herald New York Times New York Tribune Press (Philadelphia, PA) Revolution (New York, NY) Richmond Whig (VA) Salem Register (MA) Washington Reporter (PA)

List of Cases

Ableman v. Booth, 62 U.S. 506 (1859) Barron v. Baltimore, 32 U.S. 243 (1833)

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Bradwell v. The State, 83 U.S. 130 (1873) Campbell v. Georgia, 11 Ga. 353 (1852) Commonwealth v. Aves, 35 Mass. 193 (1836) Corfield v. Coryell, 6 Fed. Cas. 546 (C.C.E.D.Pa. 1823) Dred Scott v. Sandford, 60 U.S. 393 (1856) Ex parte McCardle, 74 U.S. 506 (1869) Ex parte Milligan, 71 U.S. 2 (1866) In re Booth, 3 Wis. (1854) Lemmon v. People, 6 E.P. Smith 562; 20 N.Y. 562 (1860) Luther v. Borden, 48 U.S. 1 (1849) McCulloch v. Maryland, 17 U.S. 316 (1819) Minor v. Happersett, 88 U.S. 21 (1875) Prigg v. Pennsylvania, 41 U.S. 549 (1842) The Slaughterhouse Cases, 83 U.S. 38 (1873) Sommersett’s Case, 20 Howell’s State Trials 1 (K.B. 1772) State v. Mann, 13 N.C. 263 (1829) Texas v. White, 74 U.S. 700 (1869) United States v. Cruikshank, 92 U.S. 542 (1876) United States v. Reese, 92 U.S. 214 (1876)

I n de x and Table o f Cas es Abbott, Sen. Joseph: US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869), 500 Alabama Patton, Gov. Robert M., Message to the Legislature, Rejection of the Fourteenth Amendment (Dec. 6 and 7, 1866), 308 Ratification of the Fourteenth Amendment (Reversing Earlier Rejection), New Orleans Times (July 14, 1868), 420 US Congress, An Act to Admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, to Representation in Congress (June 25, 1868), 417 Albany Evening Journal: “The New Orleans Riot” (Aug. 1, 1866), 252 Alexandria Gazette: Virginia, Gov. Francis H. Peirpoint’s Message to the Legislature (Dec. 4, 1866), 307 American Anti-­Slavery Society: “A Little More about Suffrage,” New Orleans Times (Oct. 15, 1866), 277 American Equal Rights Association, Annual Meeting, Remarks of Stephen Foster, Elizabeth Cady Stanton, and Frederick Douglass, New York, NY (May 12–13, 1869), 570 Anthony, Susan B. Annual Meeting of the American Equal Rights Association, Remarks of Stephen Foster, Elizabeth Cady Stanton, and Frederick Douglass, New York, NY (May 12–13, 1869), 570 The Equal Rights Convention, Remarks of Anthony, Elizabeth Cady Stanton, and Frederick Douglass, Albany, NY (Nov. 20, 1866), 304 US House, Debate, Apportionment Amendment, Women’s Suffrage Petition (Jan. 23, 1866), 47 apportionment, 5, 227 Arkansas Murphy, Gov. Isaac, Message to the Legislature, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) (Apr. 3, 1868), 413 Senate Committee Report, Rejection of the Fourteenth Amendment (Dec. 10, 1866), 312 Atlantic Monthly Douglass, Frederick, “An Appeal to Congress for Impartial Suffrage” (Jan. 1867), 323 Douglass, Frederick, “Reconstruction” (Nov. 1866), 293

Beaman, Rep. Fernando: US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866), 170 Beck, Rep. James US Congress, The “Georgia Bill,” Debate and Passage (Dec. 16, 20, and 21, 1869), 581 US House, Suffrage Amendment, Debate on Suffrage Bill (Jan. 28, 1869), 478 Benneson, W. H.: Letter from Secretary of the Interior O. H. Browning to Benneson and H. V. Sullivan (Oct. 13, 1866), 289 Bingham, Rep. John Civil Rights Bill: US House, Debate, Civil Rights Bill (Mar. 8, 1866), 127; US House, Debate, Civil Rights Bill, Speech of Bingham in Opposition (Mar. 9, 1866), 135 Fifteenth Amendment: drafting, 435; ratification, 541; US Congress, The “Georgia Bill,” Debate and Passage (Dec. 16, 20, and 21, 1869), 581; US House, George Boutwell, Proposed Suffrage Bill and Suffrage Amendment (Jan. 23, 1869), 447; US House, Suffrage Amendment, Addition of Language Protecting the Right to Hold Office (Feb. 20, 1869), 532; US House, Suffrage Amendment, Alternative Versions Rejected, Passage of Amendment (Jan. 30, 1869), 489; US House, Suffrage Amendment, Nonconcurrence with Senate Proposal (Feb. 15, 1869), 528; US House, Suffrage Amendment, Speech of Bingham, Debate (Jan. 29, 1869), 485; US House, Suffrage Amendment, Speech of Charles A. Eldridge, Debate (Jan. 27, 1869), 463 Fourteenth Amendment (and Joint Committee on Reconstruction): drafting, 5; “The Great Importance of the Fourteenth Amendment,” New York Herald (Dec. 3, 1868), 428; Joint Committee, Adoption of John Bingham’s Version of Proposed Amendment (Feb. 10, 1866), 95; Joint Committee, Membership (1865– 1867), 24; Joint Committee, Proposed Amendment Granting Congress Power to Enforce the Rights of Citizens and All Persons (Jan. 27, 1866), 66; Joint Committee, Proposed Amendment Granting Power to Secure the Rights “of Citizens in the Several States” and “to All Persons in the Several States Equal Protection in the Rights of Life, Liberty and Property” (Feb. 3, 1866), 90; Joint Committee, Proposed

677

Constitutional Amendment (Apr. 25, 1866), 154; Joint Committee, Proposed Constitutional Amendment, Adoption of Bingham’s Draft of Section One (Apr. 28, 1866), 154; Joint Committee, Thaddeus Stevens Introduces Five-­ Section Constitutional Amendment (Apr. 21, 1866), 152; “News of Proposed Amendments in the Joint Committee on Reconstruction,” Chicago Tribune (Apr. 16, 1866), 151; Speech of Bingham, Bowerston, OH (Aug. 24, 1866), 263; US House, Bill for the Restoration of the Southern States, Vote to Recommit to Committee on Reconstruction (Jan. 28, 1867), 357; US House, Bingham, Proposed Amendments (Dec. 6, 1865), 22; US House, Bingham Reports Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons, Response by Andrew Rogers (Feb. 26, 1866), 99; US House, Cruel and Unusual Punishments Bill, Debate (Jan. 28, 1867), 355; US House, Debate, Apportionment Amendment, Speech of Bingham (Jan. 25, 1866), 55; US House, Debate, Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons (Feb. 27, 1866), 103; US House, Debate Continued, “Privileges and Immunities” Amendment, Speeches of Bingham and Giles Hotchkiss, Vote to Postpone Consideration (Feb. 28, 1866), 108; US House, Proposed Amendment to Grant Congress Power to Secure “Equal Personal Rights” (Jan. 9, 1866), 33; US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866), 170; US House, Proposed Fourteenth Amendment, Discussion Regarding Presentment to the President for Signature (June 15, 1866), 221; US House, Readmission of Tennessee, Speech of Bingham (July 20 and 23, 1866), 247; US House, Speech of Bingham in Opposition to Bill for the Restoration of the Southern States, Exchange with Thaddeus Stevens (Jan. 16, 1867), 342; US House, Speech of Bingham on the Meaning of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment (Mar. 31, 1871), 620; US Sen., Proposed Fourteenth

Index and Table of Cases Bingham, Rep. John (continued) Amendment, Debate (May 30, 1866), 195 Thirteenth Amendment: drafting, 5; US House, Debate, Civil Rights Bill, Speech of Bingham in Opposition (Mar. 9, 1866), 135; US House, Debate Continued, “Privileges and Immunities” Amendment, Speeches of Bingham and Giles Hotchkiss, Vote to Postpone Consideration (Feb. 28, 1866), 108; US House, Proposed Amendment to Grant Congress Power to Secure “Equal Personal Rights” (Jan. 9, 1866), 33 black codes, xiii, 5 US House, John Bingham, Proposed Amendment to Grant Congress Power to Secure “Equal Personal Rights” (Jan. 9, 1866), 33 US House, Debate Continued, “Privileges and Immunities” Amendment, Speeches of John Bingham and Giles Hotchkiss, Vote to Postpone (Feb. 28, 1866), 108 US Sen., Freedmen’s Bureau Bill, Black Codes (Dec. 13, 1865), 24 Blaine, Rep. James: US House, Proposed Suffrage-­Based Apportionment Amendment (Jan. 8, 1866), 31 Blair, Montgomery: Congressional Campaign Speeches of Blair and George H. Pendleton, Reading, PA (July 18, 1866), 241 Blow, Rep. Henry: Joint Committee on Reconstruction, Membership (1865–1867), 24 Boreman, Gov. Arthur, West Virginia, Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 16, 1867), 338 Boston Daily Advertiser: “On the Massachusetts Committee’s Majority Report” (Mar. 4, 1867), 390 Boston Daily Journal “The Amendment Complete” (Feb. 4, 1870), 593 “The Amendment in Indiana” (May 20, 1869), 574 “Civil Law Restored in Louisiana; Ratification of the 14th Article of Amendment” (July 15, 1868), 420 Boutwell, Rep. George Fifteenth Amendment: drafting, 435; US House, Boutwell, Proposed Suffrage Bill and Amendment (Jan. 11, 1869), 445; US House, Boutwell, Proposed Suffrage Bill and Suffrage Amendment (Jan. 23, 1869), 447; US House, Suffrage Amendment, Addition of Language Protecting the Right to Hold Office (Feb. 20, 1869), 532; US House, Suffrage Amendment, Alternative Versions Rejected, Passage of Amendment (Jan. 30, 1869), 489; US

House, Suffrage Amendment, Debate on Suffrage Bill (Jan. 28, 1869), 478; US House, Suffrage Amendment, Nonconcurrence with Senate Proposal (Feb. 15, 1869), 528; US House, Suffrage Amendment, Removal of Language Protecting Office Holding, Passes without Debate (Feb. 25, 1869), 536 Fourteenth Amendment (and Joint Committee on Reconstruction): Joint Committee, Membership (1865–1867), 24; Speech of Boutwell on Suffrage and the Fourteenth Amendment, National Anti-­Slavery Standard (Jan. 12, 1867), 337; US House, Readmission of Tennessee, Speech of John Bingham (July 20 and 23, 1866), 247 Boyer, Rep. Benjamin: US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens Introducing the Amendment, Debate (May 8, 1866), 158 Bradley, Joseph Bradwell v. The State (1873), 654 The Slaughterhouse Cases (1873), 630 Bradwell, Myra: Bradwell v. The State (1873), 654 Bramlette, Gov. Thomas, Kentucky, Message to the Legislature, Rejection of the Fourteenth Amendment (Jan. 4, 1867), 329 Brooks, Rep. James: US House, Debate, Apportionment Amendment, Women’s Suffrage Petition (Jan. 23, 1866), 47 Browning, O. H. Letter to W. H. Benneson and H. V. Sullivan (Oct. 13, 1866), 289 “Secretary Browning’s Letter,” Evening Post (Oct. 24, 1866), 292 Brownlow, Gov. William, Tennessee, Proclamation and Address, Ratification (July 4–19, 1866), 243 Bullock, Gov. Rufus B. Georgia, Message to the Legislature, House Passage and Senate Rejection of the Fifteenth Amendment (Mar. 10–18, 1869), 554 Georgia, Message to the Legislature, Ratification of the Fourteenth and Fifteenth Amendments (Feb. 2, 1870), 592 Burnside, Gov. Ambrose, Rhode Island, Message to the Legislature, Ratification of the Fourteenth Amendment (Feb. 2–7, 1867), 376 Butler, Gen. Benjamin, Speech, Candidate for House of Representatives from Massachusetts, Toledo, OH (Oct. 2, 1866), 276 Butler, Gov. David, Nebraska, Message to the Legislature, Ratification of the Fourteenth Amendment (May 17, June 8 and 15, 1867), 401 California, Gov. H. H. Haight’s Message to the Legislature, Rejection of the

678

Fifteenth Amendment (Jan. 5 and 28, 1870), 588 Chicago Republican: President Andrew Johnson Removes Secretary of War Edwin Stanton, Precipitates Impeachment Proceedings (Feb. 22, 1868), 405 Chicago Tribune: “News of Proposed Amendments in the Joint Committee on Reconstruction” (Apr. 16, 1866), 151 Cincinnati Daily Gazette Kentucky, Gov. Thomas Bramlette’s Message to the Legislature, Rejection of the Fourteenth Amendment (Jan. 4, 1867), 329 Ohio, Gov. Jacob Cox’s Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 2 and 4, 1867), 335 Suspension of Secretary of War Edwin Stanton, Official Correspondence (Aug. 13, 1867), 402 citizenship, national, 5, 227 “Madison,” Essays on the Fourteenth Amendment, Nos. I, II, and V, New York Times (Nov. 10, 15, and 28, 1866), 297 Speech of Rep. Schuyler Colfax, Indianapolis, IN (Aug. 7, 1866), 257 US House, John Bingham, Proposed Amendment to Grant Congress Power to Secure “Equal Personal Rights” (Jan. 9, 1866), 33 US House, John Bingham Reports Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons, Response by Andrew Rogers (Feb. 26, 1866), 99 US House, Civil Rights Bill, Speech of William Lawrence, Veto Override (Apr. 7, 1866), 147 US House, Debate, Civil Rights Bill (Mar. 8, 1866), 127 US House, Debate, Civil Rights Bill, Speeches of James Wilson and M. Russell Thayer (Mar. 1–2, 1866), 119 US House, Debate, Civil Rights Bill, Speech of John Bingham in Opposition (Mar. 9, 1866), 135 US House, Debate, Civil Rights Bill, Vote and Passage (Mar. 13, 1866), 142 US House, Debate, Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons (Feb. 27, 1866), 103 US House, Debate Continued, “Privileges and Immunities” Amendment, Speeches of John Bingham and Giles Hotchkiss, Vote to Postpone Consideration (Feb. 28, 1866), 108

Index and Table of Cases US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866), 170 US Sen., Debate, Civil Rights Bill, Amended Citizenship Clause (Jan. 30, 1866), 73 US Sen., Debate, Civil Rights Bill, Proposed Addition of Citizenship Clause (Jan. 29, 1866), 67 US Sen., President Andrew Johnson’s Message Accompanying Veto of the Civil Rights Bill (Mar. 27, 1866), 144 US Sen., Proposed Fourteenth Amendment, Debate (May 30, 1866), 195 US Sen., Proposed Fourteenth Amendment, Debate, Citizenship Clause Added, Section Three Removed and Replaced, Alterations to Section Four (May 29, 1866), 194 US Sen., Proposed Fourteenth Amendment, Speech of Jacob Howard Introducing the Amendment (May 23, 1866), 185 Civil Rights Act of 1866, 5 Colfax, Rep. Schuyler, Speech, Indianapolis, IN (Aug. 7, 1866), 257 The Enforcement Bill and Repassage of the 1866 Civil Rights Act (May 31, 1870), 605 “Madison,” Essays on the Fourteenth Amendment, Nos. I, II, and V, New York Times (Nov. 10, 15, and 28, 1866), 297 Morgan, Gen. George, Speech, Coshocton, OH (Aug. 21, 1866), 261 Nicholas, S. S., “The Civil Rights Bill” (Apr. 12, 1866), 150 Trumbull, Sen. Lyman, Speech, Chicago, IL (Aug. 2, 1866), 255 US House, Civil Rights Bill, Speech of William Lawrence, Veto Override (Apr. 7, 1866), 147 US House, Debate, Civil Rights Bill (Mar. 8, 1866), 127 US House, Debate, Civil Rights Bill, Speeches of James Wilson and M. Russell Thayer (Mar. 1–2, 1866), 119 US House, Debate, Civil Rights Bill, Speech of John Bingham in Opposition (Mar. 9, 1866), 135 US House, Debate, Civil Rights Bill, Speech of Columbus Delano (Mar. 8, 1866), 129 US House, Debate, Civil Rights Bill, Vote and Passage (Mar. 13, 1866), 142 US Sen., Civil Rights Bill, Debate, Vote, and Passage (Feb. 2, 1866), 84 US Sen., Civil Rights Bill, Veto Override (Apr. 6, 1866), 146 US Sen., Debate, Civil Rights Bill, Amended Citizenship Clause (Jan. 30, 1866), 73 US Sen., Debate, Civil Rights Bill, Proposed Addition of Citizenship Clause (Jan. 29, 1866), 67

US Sen., President Andrew Johnson’s Message Accompanying Veto of the Civil Rights Bill (Mar. 27, 1866), 144 US Sen., Proposed Fourteenth Amendment, Debate (May 30, 1866), 195 US Sen., Lyman Trumbull, Judiciary Committee Reports S. Nos. 60 & 61 (Freedmen’s Bureau and Civil Rights Bills) (Jan. 11, 1866), 35 US Sen., Lyman Trumbull, Reporting Amendments to Civil Rights Bill (Jan. 12, 1866), 35 Cleveland Plain Dealer: Ohio, Legislature Rescinds Prior Ratification (Jan. 12, 1868), 404 Colfax, Rep. Schuyler, Speech, Indianapolis, IN (Aug. 7, 1866), 257 Colfax Massacre: United States v. Cruikshank (1876), 664 comity clause. See privileges and immunities clause “compact theory” of the Constitution California, Gov. H. H. Haight’s Message to the Legislature, Rejection of the Fifteenth Amendment (Jan. 5 and 28, 1870), 588 South Carolina, Statement of House Minority, Ratification of the Fifteenth Amendment (Mar. 11 and 15, 1869), 554 Texas v. White (1869), 561 US House, Suffrage Amendment, Debate on Suffrage Bill (Jan. 28, 1869), 478 Congress, US Thirty-­Ninth Congress, 5, 41, 227 Fortieth Congress, 435, 439, 541 Conkling, Rep. Roscoe Joint Committee on Reconstruction, Membership (1865–1867), 24 US House, Debate, Apportionment Amendment (Jan. 22, 1866), 43 Connecticut, Debate and Passage of Fourteenth Amendment (June 25 and 27, 1866), 235 Cowan, Sen. Edgar US Sen., Debate, Civil Rights Bill, Amended Citizenship Clause (Jan. 30, 1866), 73 US Sen., Proposed Fourteenth Amendment, Debate (May 30, 1866), 195 Cox, Gov. Jacob, Ohio, Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 2 and 4, 1867), 335 Crawford, Gov. Samuel, Kansas, Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 9–11, 1867), 341 Crisis: “The Amendment—The Situation” (Feb. 13, 1867), 382 Daily Evening Bulletin (San Francisco, CA): “Ratifying the Amendment” (Mar. 4, 1869), 547

679

Daily National Intelligencer (Washington, DC) Letter from Secretary of the Interior O. H. Browning to W. H. Benneson and H. V. Sullivan (Oct. 13, 1866), 289 Nicholas, S. S., “The Civil Rights Bill” (May 8, 1866), 150 Daily State Register (Des Moines, IA): “Changing the Constitution by Telegraph” (Mar. 13, 1869), 547 Davis, Sen. Garrett US Sen., Civil Rights Bill, Debate, Vote, and Passage (Feb. 2, 1866), 84 US Sen., Proposed Fourteenth Amendment, Speech of Davis (June 7, 1866), 206 US Sen., Suffrage Amendment, Debate and Passage (Feb. 26, 1869), 536 US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869), 500 Delano, Rep. Columbus Morgan, Gen. George, Speech, Coshocton, OH (Aug. 21, 1866), 261 Speech, Coshocton, OH (Aug. 28, 1866), 265 US House, Debate, Civil Rights Bill, Speech of Delano (Mar. 8, 1866), 129 Delaware, Gov. Gove Saulsbury’s Message to the Legislature, Rejection of the Fourteenth Amendment (Jan. 1 and Feb. 14, 1867), 364 Democratic Party: Congressional Campaign Speeches of Montgomery Blair and George H. Pendleton, Reading, PA (July 18, 1866), 241 Dillingham, Gov. Paul, Vermont, Message, Ratification (Oct. 12–31, 1866), 287 District of Columbia Morgan, Gen. George, Speech, Coshocton, OH (Aug. 21, 1866), 261 Washington, DC, Passage of the District Suffrage Bill, Right Way (Jan. 19, 1867), 331 Dixon, Sen. James: US Sen., John B. Henderson, Proposed Suffrage and Office Holding Amendment (Jan. 23, 1869), 446 Doolittle, Sen. James US Sen., Proposed Fourteenth Amendment, Debate (May 30, 1866), 195 US Sen., Proposed Fourteenth Amendment, Debate, Passage of Amended Version (June 8, 1866), 206 US Sen., Proposed Fourteenth Amendment, Debate Continued (May 31, 1866), 200 Douglass, Frederick Annual Meeting of the American Equal Rights Association, Remarks of Stephen Foster, Elizabeth Cady Stanton, and Douglass, New York, NY (May 12–13, 1869), 570

Index and Table of Cases Douglass, Frederick (continued) “An Appeal to Congress for Impartial Suffrage,” Atlantic Monthly (Jan. 1867), 323 The Equal Rights Convention, Remarks of Susan B. Anthony, Elizabeth Cady Stanton, and Douglass, Albany, NY (Nov. 20, 1866), 304 Letter to a Ratification Celebration (Apr. 5, 1870), 597 “Reconstruction,” Atlantic Monthly (Nov. 1866), 293 Speech of Douglass at Southern Loyalists Convention, Philadelphia, PA (Sept. 6, 1866), 269 Drake, Sen. Charles: US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869), 500 due process clause, Fourteenth Amendment, 5, 227 Joint Committee, Adoption of John Bingham’s Version of Proposed Amendment (Feb. 10, 1866), 95 Joint Committee, John Bingham, Proposed Amendment Granting Congress Power to Enforce the Rights of Citizens and All Persons (Jan. 27, 1866), 66 Joint Committee, John Bingham, Proposed Amendment Granting Power to Secure the Rights “of Citizens in the Several States” and “to All Persons in the Several States Equal Protection in the Rights of Life, Liberty and Property” (Feb. 3, 1866), 90 The Slaughterhouse Cases (1873), 630 United States v. Cruikshank (1876), 664 US House, John Bingham, Proposed Amendment to Grant Congress Power to Secure “Equal Personal Rights” (Jan. 9, 1866), 33 US House, John Bingham Reports Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons, Response by Andrew Rogers (Feb. 26, 1866), 99 US House, Debate, Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons (Feb. 27, 1866), 103 US House, Debate Continued, “Privileges and Immunities” Amendment, Speeches of John Bingham and Giles Hotchkiss, Vote to Postpone Consideration (Feb. 28, 1866), 108 US Sen., William Pitt Fessenden Reports Proposed Amendment (Feb. 13, 1866), 95 US Sen., Proposed Fourteenth Amendment, Debate Continued, Speech of Luke Poland, Remarks of William M. Stewart (June 5, 1866), 202

US Sen., Proposed Fourteenth Amendment, Speech of Jacob Howard Introducing the Amendment (May 23, 1866), 185

Eckley, Rep. Ephraim: US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866), 170 Edmunds, Sen. George US Sen., Suffrage Amendment, Debate and Passage (Feb. 26, 1869), 536 US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869), 500 Eldridge, Rep. Charles US House, Suffrage Amendment, Alternative Versions Rejected, Passage of Amendment (Jan. 30, 1869), 489 US House, Suffrage Amendment, Speech of Eldridge, Debate (Jan. 27, 1869), 463 Eliot, Rep. Thomas: US House, Debate, Apportionment Amendment (Jan. 24, 1866), 53 Enforcement Act of 1870 The Enforcement Bill and Repassage of the 1866 Civil Rights Act (May 31, 1870), 605 United States v. Cruikshank (1876), 664 United States v. Reese (1876), 661 equal protection clause, Fourteenth Amendment Joint Committee, Adoption of John Bingham’s Version of Proposed Amendment (Feb. 10, 1866), 95 Joint Committee, John Bingham, Proposed Amendment Granting Congress Power to Enforce the Rights of Citizens and All Persons (Jan. 27, 1866), 66 Joint Committee, John Bingham, Proposed Amendment Granting Power to Secure the Rights “of Citizens in the Several States” and “to All Persons in the Several States Equal Protection in the Rights of Life, Liberty and Property” (Feb. 3, 1866), 90 Joint Committee, Proposed Amendments, Apportionment, Power to Secure to All Persons “Equal Protection in Their Rights of Life, Liberty and Property” (Jan. 12, 1866), 38 Joint Committee, Proposed Amendments, Vote on Apportionment Amendment (Jan. 20, 1866), 42 US House, Apportionment Amendment, Speech of Thaddeus Stevens, Vote and Passage (Jan. 31, 1866), 80 US House, John Bingham, Proposed Amendment (Dec. 6, 1865), 22 US House, John Bingham, Proposed Amendment to Grant Congress Power to Secure “Equal Personal Rights” (Jan. 9, 1866), 33 US House, John Bingham Reports Proposed Amendment Empowering

680

Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons, Response by Andrew Rogers (Feb. 26, 1866), 99 US House, Debate, Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons (Feb. 27, 1866), 103 US House, Debate Continued, “Privileges and Immunities” Amendment, Speeches of John Bingham and Giles Hotchkiss, Vote to Postpone Consideration (Feb. 28, 1866), 108 US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866), 170 US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens Introducing the Amendment, Debate (May 8, 1866), 158 US House, Thaddeus Stevens, Proposed Amendments (Dec. 5, 1865), 22 US Sen., Proposed Fourteenth Amendment, Speech of Garrett Davis (June 7, 1866), 206 US Sen., Proposed Fourteenth Amendment, Speech of Jacob Howard Introducing the Amendment (May 23, 1866), 185 Equal Rights Convention, Remarks of Susan B. Anthony, Elizabeth Cady Stanton, and Frederick Douglass, Albany, NY (Nov. 20, 1866), 304 Evening Post (New York, NY) “Secretary Browning’s Letter” (Oct. 24, 1866), 292 US Congressional Election Returns (Nov. 7, 1866), 293 Evening Telegraph (Philadelphia, PA): “The Rebel Massacre in New Orleans” and “The Right of Free Assemblage” (Aug. 1, 1866), 254 Fairchild, Gov. Lucas, Wisconsin, Message to the Legislature, Minority Committee Report, Ratification of the Fourteenth Amendment (Jan. 10 and 22, 1867), 377 Farnsworth, Rep. John US House, Debate, Apportionment Amendment, Women’s Suffrage Petition (Jan. 23, 1866), 47 US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866), 170 Fenton, Gov. Reuben, New York, Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 1, 2, and 10, 1867), 334 Fessenden, Sen. William Joint Committee on Reconstruction, Membership (1865–1867), 24 US Sen., Apportionment Amendment, Remarks (Feb. 7, 1866), 92

Index and Table of Cases US Sen., Debate, Apportionment Amendment, Fails Two-­Thirds Vote (Mar. 9, 1866), 133 US Sen., Fessenden Reports Proposed Amendment (Feb. 13, 1866), 95 US Sen., Proposed Fourteenth Amendment, Debate (May 30, 1866), 195 US Sen., Proposed Fourteenth Amendment, Debate Continued (June 4, 1866), 201 Field, Stephen: The Slaughterhouse Cases (1873), 630 Fifteenth Amendment, 435, 541 congressional powers and suffrage: US House, George Boutwell, Proposed Suffrage Bill and Suffrage Amendment (Jan. 23, 1869), 447; US House, Suffrage Amendment, Debate on Suffrage Bill (Jan. 28, 1869), 478; US House, Suffrage Amendment, Speech of Charles A. Eldridge, Debate (Jan. 27, 1869), 463; US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869), 500; US Sen., Suffrage and Office Holding Amendment, Speech of Charles Sumner (Feb. 5, 1869), 498 Douglass, Frederick, Letter to a Ratification Celebration (Apr. 5, 1870), 597 drafting: Fortieth Congress, Membership, 439; US House, George Boutwell, Proposed Suffrage Bill and Suffrage Amendment (Jan. 11, 1869), 445; US House, George Boutwell, Proposed Suffrage Bill and Suffrage Amendment (Jan. 23, 1869), 447; US House, Suffrage Amendment, Addition of Language Protecting the Right to Hold Office (Feb. 20, 1869), 532; US House, Suffrage Amendment, Alternative Versions Rejected, Passage of Amendment (Jan. 30, 1869), 489; US House, Suffrage Amendment, Debate on Suffrage Bill (Jan. 28, 1869), 478; US House, Suffrage Amendment, Nonconcurrence with Senate Proposal (Feb. 15, 1869), 528; US House, Suffrage Amendment, Removal of Language Protecting Office Holding, Passes without Debate (Feb. 25, 1869), 536; US House, Suffrage Amendment, Speech of John Bingham, Debate (Jan. 29, 1869), 485; US House, Suffrage Amendment, Speech of Charles A. Eldridge, Debate (Jan. 27, 1869), 463; US Sen., “Dual” Amendment on Suffrage, Office Holding, and Electors; Vote to Recede and Adopt Suffrage Amendment Proposed by House (Feb. 17, 1869), 530; US Sen., Exclusion of Georgia Senator Joshua Hill, Proposed Suffrage Amendment (Dec. 7, 1868), 445; US Sen., John B. Henderson, Proposed Suffrage and

Office Holding Amendment (Jan. 23, 1869), 446; US Sen., Suffrage Amendment, Call for Conference with House (Feb. 23, 1869), 535; US Sen., Suffrage Amendment, Debate and Passage (Feb. 26, 1869), 536; US Sen., Suffrage and Office Holding Amendment (Jan. 28, 1869), 477; US Sen., Suffrage and Office Holding Amendment, Appointment of Electors, Passage of “Dual” Amendment (Feb. 9, 1869), 525; US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 4, 1869), 493; US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869), 500; US Sen., Suffrage and Office Holding Amendment, Speech of Charles Sumner (Feb. 5, 1869), 498 Grant, Ulysses: First Inaugural Address (Mar. 4, 1869), 548; Message to Congress Announcing the Ratification of the Fifteenth Amendment (Mar. 30, 1870), 595 Phillips, Wendell, “The Senate and the Proposed Amendment,” National Anti-­ Slavery Standard (Feb. 20, 1869), 532 press coverage: “The Amendment Complete,” Boston Daily Journal (Feb. 4, 1870), 593; “The Amendment of the Constitution Regarding Suffrage,” New York Times (Mar. 8, 1869), 551; “The Fifteenth Amendment,” New York Times (Apr. 12, 1869), 569; US Congress, The Requirement Bill: Requiring Virginia, Mississippi, and Texas to Ratify the Fifteenth Amendment as a Condition of Readmission, New York Herald (Apr. 10, 1869), 559; “Wendell Phillips Advocates It—Ratification by Rhode Island,” New York Times (May 30, 1869), 574 right to hold office: US House, Suffrage Amendment, Addition of Language Protecting the Right to Hold Office (Feb. 20, 1869), 532; US House, Suffrage Amendment, Removal of Language Protecting Office Holding, Passes without Debate (Feb. 25, 1869), 536; US House, Suffrage Amendment, Speech of John Bingham, Debate (Jan. 29, 1869), 485; US House, Suffrage Amendment, Speech of Charles A. Eldridge, Debate (Jan. 27, 1869), 463; US Sen., “Dual” Amendment on Suffrage, Office Holding, and Electors; Vote to Recede and Adopt Suffrage Amendment Proposed by House (Feb. 17, 1869), 530; US Sen., John B. Henderson, Proposed Suffrage and Office Holding Amendment (Jan. 23, 1869), 446; US Sen., Suffrage Amendment, Debate and Passage (Feb. 26, 1869), 536; US Sen., Suffrage and Office Holding Amendment (Jan.

681

28, 1869), 477; US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 4, 1869), 493; US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869), 500 Supreme Court, US (postratification): United States v. Cruikshank (1876), 664; United States v. Reese (1876), 661 women’s suffrage: Annual Meeting of the American Equal Rights Association, Remarks of Stephen Foster, Elizabeth Cady Stanton, and Frederick Douglass, New York, NY (May 12–13, 1869), 570; Elizabeth Cady Stanton, “All Wise Women Should Oppose the Fifteenth Amendment,” Revolution (Oct. 21, 1869), 577; Elizabeth Cady Stanton, “Women and Black Men,” Revolution (Feb. 11, 1869), 527; US House, Judiciary Committee, Petition of Victoria Woodhull on the Subject of Female Suffrage (Jan. 2, 1871), 607; US House, Judiciary Committee, “The Woodhull Report” (Jan. 30 and Feb. 1, 1871), 609; US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 4, 1869), 493; US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869), 500 Finck, Rep. William: US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens Introducing the Amendment, Debate (May 8, 1866), 158 Fish, Hamilton: President Ulysses S. Grant, Message to Congress Announcing the Ratification of the Fifteenth Amendment (Mar. 30, 1870), 595 Florida Legislative Committee Reports and Rejection of the Fourteenth Amendment (Nov. 23, Dec. 1 and 3, 1866), 305 Reed, Gov. Harrison, Message to the Legislature, Ratification of the Thirteenth and Fourteenth Amendments (Reversing Earlier Rejection) (June 9, 1868), 417 US Congress, An Act to Admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, to Representation in Congress (June 25, 1868), 417 Walker, Gov. David S., Message to the Legislature (Nov. 14, 1866), 302 Foster, Stephen: Annual Meeting of the American Equal Rights Association, Remarks of Foster, Elizabeth Cady Stanton, and Frederick Douglass, New York, NY (May 12–13, 1869), 570 Fourteenth Amendment, 5, 227 Joint Committee on Reconstruction, 5; Adoption of John Bingham’s Version of Proposed Amendment (Feb. 10, 1866), 95; John Bingham, Proposed

Index and Table of Cases Fourteenth Amendment (continued) Amendment Granting Congress Power to Enforce the Rights of Citizens and All Persons (Jan. 27, 1866), 66; John Bingham, Proposed Amendment Granting Power to Secure the Rights “of Citizens in the Several States” and “to All Persons in the Several States Equal Protection in the Rights of Life, Liberty and Property” (Feb. 3, 1866), 90; Joint Committee, Membership (1865–1867), 24; Majority and Minority Reports of the Joint Committee (June 8, 1866), 212; “News of Proposed Amendments in the Joint Committee on Reconstruction,” Chicago Tribune (Apr. 16, 1866), 151; “The Progress of Reconstruction—What the ‘Secret Directory’ Proposes,” New York Times (Apr. 30, 1866), 156; Proposed Amendments, Apportionment, Power to Secure to All Persons “Equal Protection in Their Rights of Life, Liberty and Property” (Jan. 12, 1866), 38; Proposed Amendments, Vote on Apportionment Amendment (Jan. 20, 1866), 42; Proposed Apportionment Amendment, Exclusion of “Insurgent States” (Jan. 9, 1866), 33; Proposed Constitutional Amendment (Apr. 25, 1866), 154; Proposed Constitutional Amendment, Adoption of John Bingham’s Draft of Section One (Apr. 28, 1866), 154; Thaddeus Stevens Introduces Five-­Section Constitutional Amendment (Apr. 21, 1866), 152; US House, Opening Day of Thirty-­Ninth Congress, Exclusion of Former Rebel States, Appointing Joint Committee (Dec. 4, 1865), 20; US House, Thaddeus Stevens Introduces Proposed Five-­ Section Fourteenth Amendment (Apr. 30, 1866), 155; US Sen., Appointing Joint Committee (Dec. 12, 1865), 23; US Sen., Proposed Fourteenth Amendment, Debate, Passage of Amended Version (June 8, 1866), 206 presidential transmission: US House, Proposed Fourteenth Amendment, Discussion Regarding Presentment to the President for Signature (June 15, 1866), 221; US Sen., Proposed Fourteenth Amendment, President Andrew Johnson’s Message of Transmission (June 22, 1866), 223 press coverage, framing and passage: “News of Proposed Amendments in the Joint Committee on Reconstruction,” Chicago Tribune (Apr. 16, 1866), 151; “The Progress of Reconstruction—What the ‘Secret Directory’ Proposes,” New York Times (Apr. 30, 1866), 156; “The Reconstruction Debate in the Senate, Mr. Howard Speaks on Behalf of the

Committee,” New York Times (May 24, 1866), 193 ratification, 227; Secretary of State William Seward, Final Proclamation of the Ratification of the Fourteenth Amendment (July 28, 1868), 425 section 1: Joint Committee, Adoption of John Bingham’s Version of Proposed Amendment (Feb. 10, 1866), 95; Joint Committee, John Bingham, Proposed Amendment Granting Power to Secure the Rights “of Citizens in the Several States” and “to All Persons in the Several States Equal Protection in the Rights of Life, Liberty and Property” (Feb. 3, 1866), 90; Joint Committee, Proposed Amendments, Apportionment, Power to Secure to All Persons “Equal Protection in Their Rights of Life, Liberty and Property” (Jan. 12, 1866), 38; Joint Committee, Proposed Constitutional Amendment (Apr. 25, 1866), 154; Joint Committee, Proposed Constitutional Amendment, Adoption of John Bingham’s Draft of Section One (Apr. 28, 1866), 154; Joint Committee, Thaddeus Stevens Introduces Five-­ Section Constitutional Amendment (Apr. 21, 1866), 152; “News of Proposed Amendments in the Joint Committee on Reconstruction,” Chicago Tribune (Apr. 16, 1866), 151; US House, John Bingham, Proposed Amendment (Dec. 6, 1865), 22; US House, John Bingham, Proposed Amendment to Grant Congress Power to Secure “Equal Personal Rights” (Jan. 9, 1866), 33; US House, John Bingham Reports Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons, Response by Andrew Rogers (Feb. 26, 1866), 99; US House, Debate, Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons (Feb. 27, 1866), 103; US House, Debate Continued, “Privileges and Immunities” Amendment, Speeches of John Bingham and Giles Hotchkiss, Vote to Postpone Consideration (Feb. 28, 1866), 108; US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866), 170; US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens, Vote and Passage of Amended Senate Version (June 13, 1866), 218; US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens Introducing the Amendment, Debate (May 8, 1866), 158; US House, Speech

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of John Bingham on the Meaning of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment (Mar. 31, 1871), 620; US House, Thaddeus Stevens, Proposed Amendments (Dec. 5, 1865), 22; US House, Thaddeus Stevens Introduces Proposed Five-­Section Fourteenth Amendment (Apr. 30, 1866), 155; US Sen., Proposed Fourteenth Amendment, Debate (May 30, 1866), 195; US Sen., Proposed Fourteenth Amendment, Debate, Passage of Amended Version (June 8, 1866), 206; US Sen., Proposed Fourteenth Amendment, Debate Continued, Speech of Luke Poland, Remarks of William M. Stewart (June 5, 1866), 202; US Sen., Proposed Fourteenth Amendment, Speech of Garrett Davis (June 7, 1866), 206; US Sen., Proposed Fourteenth Amendment, Speech of Jacob Howard Introducing the Amendment (May 23, 1866), 185 section 2: Joint Committee, Proposed Amendments, Apportionment, Power to Secure to All Persons “Equal Protection in Their Rights of Life, Liberty and Property” (Jan. 12, 1866), 38; Joint Committee, Proposed Amendments, Vote on Apportionment Amendment (Jan. 20, 1866), 42; Joint Committee, Proposed Apportionment Amendment, Exclusion of “Insurgent States” (Jan. 9, 1866), 33; Joint Committee, Proposed Constitutional Amendment, Adoption of John Bingham’s Draft of Section One (Apr. 28, 1866), 154; Joint Committee, Thaddeus Stevens Introduces Five-­ Section Constitutional Amendment (Apr. 21, 1866), 152; “News of Proposed Amendments in the Joint Committee on Reconstruction,” Chicago Tribune (Apr. 16, 1866), 151; US House, Apportionment Amendment, Speech of Thaddeus Stevens, Vote and Passage (Jan. 31, 1866), 80; US House, James G. Blaine, Proposed Suffrage-­ Based Apportionment Amendment (Jan. 8, 1866), 31; US House, Debate, Apportionment Amendment (Jan. 22, 1866), 43; US House, Debate, Apportionment Amendment (Jan. 24, 1866), 53; US House, Debate, Apportionment Amendment, Speech of John Bingham (Jan. 25, 1866), 55; US House, Debate, Apportionment Amendment, Speech of William Wright (Jan. 26, 1866), 65; US House, Debate, Apportionment Amendment, Women’s Suffrage Petition (Jan. 23, 1866), 47; US House, Proposed Apportionment Amendment Referred Back to Joint Committee (Jan. 30,

Index and Table of Cases 1866), 79; US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866), 170; US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens, Vote and Passage of Amended Senate Version (June 13, 1866), 218; US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens Introducing the Amendment, Debate (May 8, 1866), 158; US House, Thaddeus Stevens, Proposed Amendments (Dec. 5, 1865), 22; US House, Thaddeus Stevens Introduces Proposed Five-­Section Fourteenth Amendment (Apr. 30, 1866), 155; US Sen., Apportionment Amendment, Remarks of William Pitt Fessenden (Feb. 7, 1866), 92; US Sen., Apportionment Amendment, Speech of Charles Sumner (Feb. 6, 1866), 90; US Sen., Debate, Apportionment Amendment, Fails Two-­Thirds Vote (Mar. 9, 1866), 133; US Sen., Debate, Apportionment Amendment, Opposition of Charles Sumner (Mar. 7, 1866), 126; US Sen., Proposed Fourteenth Amendment, Debate (May 30, 1866), 195; US Sen., Proposed Fourteenth Amendment, Debate, Passage of Amended Version (June 8, 1866), 206; US Sen., Proposed Fourteenth Amendment, Debate Continued, Speech of Luke Poland, Remarks of William M. Stewart (June 5, 1866), 202; US Sen., Proposed Fourteenth Amendment, Speech of Jacob Howard Introducing the Amendment (May 23, 1866), 185 section 3: Joint Committee, Proposed Constitutional Amendment, Adoption of John Bingham’s Draft of Section One (Apr. 28, 1866), 154; Joint Committee, Thaddeus Stevens Introduces Five-­Section Constitutional Amendment (Apr. 21, 1866), 152; “News of Proposed Amendments in the Joint Committee on Reconstruction,” Chicago Tribune (Apr. 16, 1866), 151; US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866), 170; US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens, Vote and Passage of Amended Senate Version (June 13, 1866), 218; US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens Introducing the Amendment, Debate (May 8, 1866), 158; US House, Thaddeus Stevens Introduces Proposed Five-­Section Fourteenth Amendment (Apr. 30, 1866), 155; US Sen., Proposed Fourteenth Amendment, Debate (May 30, 1866),

195; US Sen., Proposed Fourteenth Amendment, Debate, Citizenship Clause Added, Section Three Removed and Replaced, Alterations to Section Four (May 29, 1866), 194; US Sen., Proposed Fourteenth Amendment, Debate, Passage of Amended Version (June 8, 1866), 206; US Sen., Proposed Fourteenth Amendment, Debate Continued (May 31, 1866), 200; US Sen., Proposed Fourteenth Amendment, Debate Continued (June 4, 1866), 201; US Sen., Proposed Fourteenth Amendment, Speech of Jacob Howard Introducing the Amendment (May 23, 1866), 185 section 4: Joint Committee, Thaddeus Stevens Introduces Five-­Section Constitutional Amendment (Apr. 21, 1866), 152; “News of Proposed Amendments in the Joint Committee on Reconstruction,” Chicago Tribune (Apr. 16, 1866), 151; US House, John Bingham, Proposed Amendment (Dec. 6, 1865), 22; US House, Passage of Proposed Amendment on the Rebel Debt (Dec. 19, 1865), 29; US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866), 170; US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens, Vote and Passage of Amended Senate Version (June 13, 1866), 218; US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens Introducing the Amendment, Debate (May 8, 1866), 158; US House, Thaddeus Stevens, Proposed Amendments (Dec. 5, 1865), 22; US House, Thaddeus Stevens Introduces Proposed Five-­Section Fourteenth Amendment (Apr. 30, 1866), 155; US Sen., Proposed Fourteenth Amendment, Debate, Citizenship Clause Added, Section Three Removed and Replaced, Alterations to Section Four (May 29, 1866), 194; US Sen., Proposed Fourteenth Amendment, Debate, Passage of Amended Version (June 8, 1866), 206; US Sen., Proposed Fourteenth Amendment, Debate Continued (June 4, 1866), 201; US Sen., Proposed Fourteenth Amendment, Speech of Jacob Howard Introducing the Amendment (May 23, 1866), 185 section 5: Joint Committee, Thaddeus Stevens Introduces Five-­Section Constitutional Amendment (Apr. 21, 1866), 152; “News of Proposed Amendments in the Joint Committee on Reconstruction,” Chicago Tribune (Apr. 16, 1866), 151; US House, John Bingham Reports Proposed Amendment Empowering Congress

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to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons, Response by Andrew Rogers (Feb. 26, 1866), 99; US House, Debate, Civil Rights Bill, Speech of John Bingham in Opposition (Mar. 9, 1866), 135; US House, Debate, Civil Rights Bill, Speech of Columbus Delano (R-­OH) (Mar. 8, 1866), 129; US House, Debate, Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons (Feb. 27, 1866), 103; US House, Debate Continued, “Privileges and Immunities” Amendment, Speeches of John Bingham and Giles Hotchkiss, Vote to Postpone Consideration (Feb. 28, 1866), 108; US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens, Vote and Passage of Amended Senate Version (June 13, 1866), 218; US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens Introducing the Amendment, Debate (May 8, 1866), 158; US House, Thaddeus Stevens Introduces Proposed Five-­Section Fourteenth Amendment (Apr. 30, 1866), 155; US Sen., Proposed Fourteenth Amendment, Debate, Citizenship Clause Added, Section Three Removed and Replaced, Alterations to Section Four (May 29, 1866), 194; US Sen., Proposed Fourteenth Amendment, Debate, Passage of Amended Version (June 8, 1866), 206; US Sen., Proposed Fourteenth Amendment, Speech of Jacob Howard Introducing the Amendment (May 23, 1866), 185 freedmen, right to assembly Colfax Massacre: United States v. Cruikshank (1876), 664 “The New Orleans Riot,” Albany Evening Journal (Aug. 1, 1866), 252 “The Rebel Massacre in New Orleans” and “The Right of Free Assemblage,” Evening Telegraph (Aug. 1, 1866), 254 Freedmen’s Bureau Bill, 5 Speech of Sen. Lyman Trumbull, Chicago, IL (Aug. 2, 1866), 255 US House, Freedmen’s Bureau Bill, Adding “the Constitutional Right to Bear Arms” (Feb. 1, 1866), 83 US House, Freedmen’s Bureau Bill, Debate and Passage (Feb. 2, 1866), 88 US Sen., Debate, Freedmen’s Bureau Bill (Jan. 19, 1866), 39 US Sen., Freedmen’s Bureau Bill, Black Codes (Dec. 13, 1865), 24 US Sen., Freedmen’s Bureau Bill, President Andrew Johnson’s Veto Message (Feb. 19, 1866), 96

Index and Table of Cases Freedmen’s Bureau Bill (continued) US Sen., Freedmen’s Bureau Bill, Speech of Lyman Trumbull, Vote to Override Fails (Feb. 20, 1866), 98 US Sen., Lyman Trumbull, Freedmen’s Bureau Bill (Dec. 19, 1865), 28 US Sen., Lyman Trumbull, Judiciary Committee Reports S. Nos. 60 & 61 (Freedmen’s Bureau and Civil Rights Bills) (Jan. 11, 1866), 35 Frelinghuysen, Sen. Frederick: US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869), 500

Garfield, Rep. James: US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens Introducing the Amendment, Debate (May 8, 1866), 158 Georgia Fifteenth Amendment: Gov. Rufus Bullock’s Message to the Legislature, House Passage and Senate Rejection of the Fifteenth Amendment (Mar. 10–18, 1869), 554; Gov. Rufus Bullock’s Message to the Legislature, Ratification of the Fourteenth and Fifteenth Amendments (Feb. 2, 1870), 592; US Congress, The “Georgia Bill,” Debate and Passage (Dec. 16, 20, and 21, 1869), 581 Fourteenth Amendment: Gov. Rufus Bullock’s Message to the Legislature, Ratification of the Fourteenth and Fifteenth Amendments (Feb. 2, 1870), 592; “Georgia Restored to Civil Authority,” New York Times (July 24, 1868), 424; Legislature Rejects the Fourteenth Amendment, Richmond Whig (Nov. 13, 1866), 296; US Congress, An Act to Admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, to Representation in Congress (June 25, 1868), 417; US Congress, Senate and House Resolutions Declaring the Ratification of the Fourteenth Amendment (July 21, 1868), 422 Hill, Sen. Joshua: US Sen., Exclusion of Hill, Proposed Suffrage Amendment (Dec. 7, 1868), 445 Grant, Ulysses S. First Inaugural Address (Mar. 4, 1869), 548 Message to Congress Announcing the Ratification of the Fifteenth Amendment (Mar. 30, 1870), 595 Restores Edwin Stanton to the Office of Secretary of War, New York Tribune (Jan. 15, 1868), 404 Suspension of Secretary of War Edwin Stanton, Official Correspondence, Cincinnati Daily Gazette (Aug. 13, 1867), 402

Grider, Rep. Henry: Joint Committee on Reconstruction, Membership (1865– 1867), 24 Grimes, Sen. James: Joint Committee on Reconstruction, Membership (1865– 1867), 24

Haight, Gov. H. H., California, Message to the Legislature, Rejection of the Fifteenth Amendment (Jan. 5 and 28, 1870), 588 Hale, Rep. Robert US House, Debate, Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons (Feb. 27, 1866), 103 US House, Debate Continued, “Privileges and Immunities” Amendment, Speeches of John Bingham and Giles Hotchkiss, Vote to Postpone Consideration (Feb. 28, 1866), 108 Hamilton, Alexander US House, George Boutwell, Proposed Suffrage Bill and Suffrage Amendment (Jan. 23, 1869), 447 US House, Suffrage Amendment, Speech of Charles A. Eldridge, Debate (Jan. 27, 1869), 463 Harper’s Weekly: “A Clear Issue” (Oct. 6, 1866), 281 Harris, Sen. Ira: Joint Committee on Reconstruction, Membership (1865– 1867), 24 Harvey, Gov. James M., Kansas, Message to the Legislature, Repassage of the Fifteenth Amendment (Jan. 12, 1870), 586 Henderson, Sen. John: US Sen., Proposed Fourteenth Amendment, Debate, Passage of Amended Version (June 8, 1866), 206 Hendricks, Sen. Thomas Speech of Hendricks, Indianapolis, IN (Aug. 8, 1866), 260 US Sen., Debate, Freedmen’s Bureau Bill (Jan. 19, 1866), 39 US Sen., Proposed Fourteenth Amendment, Debate Continued (June 4, 1866), 201 Hibbard, E. A.: New Hampshire, House of Representatives, Speech (June 26, 1866), 239 Higby, Rep. William US House, Debate, Apportionment Amendment, Speech of John Bingham (Jan. 25, 1866), 55 US House, Debate, Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons (Feb. 27, 1866), 103 Hill, Sen. Joshua: US Sen., Exclusion of Hill, Proposed Suffrage Amendment (Dec. 7, 1868), 445 Hoar, Samuel: Speech of Rep. Columbus

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Delano, Coshocton, OH (Aug. 28, 1866), 265 Holden, Gov. W. W., North Carolina, Message to the Legislature, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) (July 2, 1868), 418 Hotchkiss, Rep. Giles: US House, Debate Continued, “Privileges and Immunities” Amendment, Speeches of John Bingham and Hotchkiss, Vote to Postpone Consideration (Feb. 28, 1866), 108 Howard, Sen. Jacob Civil Rights Bill: US Sen., Debate, Civil Rights Bill, Amended Citizenship Clause (Jan. 30, 1866), 73 Fifteenth Amendment: US Sen., Suffrage Amendment, Debate and Passage (Feb. 26, 1869), 536; US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869), 500 Fourteenth Amendment: Joint Committee on Reconstruction, Membership (1865–1867), 24; “The Reconstruction Debate in the Senate, Mr. Howard Speaks on Behalf of the Committee,” New York Times (May 24, 1866), 193; US Sen., Proposed Fourteenth Amendment, Debate (May 30, 1866), 195; US Sen., Proposed Fourteenth Amendment, Debate, Citizenship Clause Added, Section Three Removed and Replaced, Alterations to Section Four (May 29, 1866), 194; US Sen., Proposed Fourteenth Amendment, Speech of Howard Introducing the Amendment (May 23, 1866), 185 Illinois Bradwell v. The State (1873), 654 Trumbull, Sen. Lyman, Speech, Chicago, IL (Aug. 2, 1866), 255 impeachment. See Johnson, Andrew: impeachment Indiana Fifteenth Amendment: “The Amendment in Indiana,” Boston Daily Journal (May 20, 1869), 574; Democrats Resign to Prevent Vote (Mar. 3–6, 1869), 548; Remaining Republican Legislature Ratifies Amendment (May 14, 1869), 573 Fourteenth Amendment: Rep. Schuyler Colfax, Speech, Indianapolis, IN (Aug. 7, 1866), 257; Sen. Thomas A. Hendricks, Speech, Indianapolis, IN (Aug. 8, 1866), 260; Sen. Henry Lane, Speech, Indianapolis, IN (Aug. 18, 1866), 261; Gov. Oliver P. Morton, Speech on the Fourteenth Amendment, New Albany, IN (July 27, 1866), 251; Gov. Oliver P. Morton’s Message to the Legislature, Majority and Minority Committee Reports, Ratification of the Fourteenth

Index and Table of Cases Amendment (Jan. 11, 18, and 23, 1867), 349

Iowa Merrill, Gov. Samuel, Message to the Legislature, Ratification of the Fifteenth Amendment (Jan. 11 and 27, 1870), 588 Stone, Gov. William M., Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 14 and 27, Mar. 9, 1868), 406

Jenckes, Rep. Thomas, US House, Debate, Apportionment Amendment, Women’s Suffrage Petition (Jan. 23, 1866), 47 Johnson, Andrew, xiii, 5 Civil Rights Bill: US House, Civil Rights Bill, Speech of William Lawrence, Veto (Apr. 7, 1866), 147; US Sen., Civil Rights Bill, Veto Override (Apr. 6, 1866), 146; US Sen., President Johnson’s Message Accompanying Veto of the Civil Rights Bill (Mar. 27, 1866), 144 Fourteenth Amendment: “The Appeal,” Southern Loyalists Convention, Philadelphia, PA (Sept. 6, 1866), 268; “Madison,” Essays on the Fourteenth Amendment, Nos. I, II, and V, New York Times (Nov. 10, 15, and 28, 1866), 297; Proposed “Compromise” Amendment, New York Times (Feb. 5, 1867), 363; Reported Meeting between Johnson and South Carolina Commissioner Colonel T. Weatherby, New York Herald (Dec. 28, 1866), 322; Speech of President Johnson, New York, NY (Aug. 29, 1866), 267; US House, Apportionment Amendment, Speech of Thaddeus Stevens, Vote and Passage (Jan. 31, 1866), 80; US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866), 170; US House, Proposed Fourteenth Amendment, Discussion Regarding Presentment to the President for Signature (June 15, 1866), 221; US Sen., Proposed Fourteenth Amendment, Debate Continued (June 4, 1866), 201; US Sen., Proposed Fourteenth Amendment, President Johnson’s Message of Transmission (June 22, 1866), 223 Freedmen’s Bureau Bill: US Sen., Freedmen’s Bureau Bill, President Johnson’s Veto Message (Feb. 19, 1866), 96; US Sen., Freedmen’s Bureau Bill, Speech of Lyman Trumbull, Vote to Override Fails (Feb. 20, 1866), 98 impeachment: Congressional Campaign Speeches of Montgomery Blair and George H. Pendleton, Reading, PA (July 18, 1866), 241; “Impeachment . . . The President Pronounced Not Guilty,” New York Herald (May 17,

1868), 414; President Johnson Removes Secretary of War Edwin Stanton, Precipitates Impeachment Proceedings, Chicago Republican (Feb. 22, 1868), 405; Speech of Wendell Phillips on the Fourteenth Amendment, Cooper Institute (Oct. 25, 1866), 277 New Orleans Riot, Remarks on, St. Louis, MO (Sept. 8, 1866), 270 Stanton, Edwin: Gen. Ulysses Grant Restores Edwin Stanton to the Office of Secretary of War, New York Tribune (Jan. 15, 1868), 404; President Johnson Removes Secretary of War Edwin Stanton, Precipitates Impeachment Proceedings, Chicago Republican (Feb. 22, 1868), 405; Suspension of Secretary of War Edwin Stanton, Official Correspondence, Cincinnati Daily Gazette (Aug. 13, 1867), 402 Johnson, Sen. Reverdy “A Further Consideration of the Dangerous Conditions of the Country” (Nov. 15, 1867), 403 Joint Committee on Reconstruction, Membership (1865–1867), 24 Speech of Rep. Schuyler Colfax, Indianapolis, IN (Aug. 7, 1866), 257 US Sen., Debate, Civil Rights Bill, Amended Citizenship Clause (Jan. 30, 1866), 73 US Sen., Proposed Fourteenth Amendment, Debate (May 30, 1866), 195 US Sen., Proposed Fourteenth Amendment, Debate, Passage of Amended Version (June 8, 1866), 206 Joint Committee on Reconstruction, 5, 227 Membership (1865–1867), 24 US House, Opening Day of Thirty-­Ninth Congress, Exclusion of Former Rebel States, Appointing Joint Committee on Reconstruction (Dec. 4, 1865), 20 US Sen., Appointing Joint Committee on Reconstruction (Dec. 12, 1865), 23

Kansas “Changing the Constitution by Telegraph,” Daily State Register (Mar. 13, 1869), 547 Crawford, Gov. Samuel J., Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 9–11, 1867), 341 Harvey, Gov. James M., Message to the Legislature, Repassage of the Fifteenth Amendment (Jan. 12, 1870), 586 “Ratifying the Amendment,” Daily Evening Bulletin (Mar. 4, 1869), 547 Kasson, Rep. John: US House, Cruel and Unusual Punishments Bill, Debate (Jan. 28, 1867), 355 Kelley, Rep. William: US House, Proposed Fourteenth Amendment, Speech of

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Thaddeus Stevens Introducing the Amendment, Debate (May 8, 1866), 158 Kentucky Bramlette, Gov. Thomas, Message to the Legislature, Rejection of the Fourteenth Amendment (Jan. 4, 1867), 329 Stevenson, Gov. John, Message to the Legislature, Majority and Minority Reports, Rejection of the Fifteenth Amendment (Mar. 10–12, 1869), 552 United States v. Reese (1876), 661 See also Davis, Sen. Garrett Kerr, Rep. Michael US House, Debate, Civil Rights Bill (Mar. 8, 1866), 127 US House, Suffrage Amendment, Speech of Charles A. Eldridge, Debate (Jan. 27, 1869), 463 Lane, Sen. Henry, Speech, Indianapolis, IN (Aug. 18, 1866), 261 Lawrence, Rep. William: US House, Civil Rights Bill, Speech of Lawrence, Veto Override (Apr. 7, 1866), 147 Le Blond, Rep. Frank: US House, Proposed Fourteenth Amendment, Discussion Regarding Presentment to the President for Signature (June 15, 1866), 221 Louisiana Fourteenth Amendment: “Civil Law Restored in Louisiana; Ratification of the 14th Article of Amendment,” Boston Daily Journal (July 15, 1868), 420; Gov. J. Madison Wells’s Message to the Legislature, Rejection of the Fourteenth Amendment (Jan. 28, 1867), 362 New Orleans riot, 1866: President Andrew Johnson, Remarks on the New Orleans Riot, St. Louis, MO (Sept. 8, 1866), 270; “The New Orleans Riot,” Albany Evening Journal (Aug. 1, 1866), 252; “The Rebel Massacre in New Orleans” and “The Right of Free Assemblage,” Evening Telegraph (Aug. 1, 1866), 254 Reconstruction: US Congress, An Act to Admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, to Representation in Congress (June 25, 1868), 417 Supreme Court, US: The Slaughterhouse Cases (1873), 630; United States v. Cruikshank (1876), 664

“Madison,” Essays on the Fourteenth Amendment, Nos. I, II, and V, New York Times (Nov. 10, 15, and 28, 1866), 297 Madison, James US House, George Boutwell, Proposed Suffrage Bill and Suffrage Amendment (Jan. 23, 1869), 447

Index and Table of Cases Madison, James (continued) US House, Debate Continued, “Privileges and Immunities” Amendment, Speeches of John Bingham and Giles Hotchkiss, Vote to Postpone Consideration (Feb. 28, 1866), 108 US House, Suffrage Amendment, Speech of Charles A. Eldridge, Debate (Jan. 27, 1869), 463 Maryland, Legislature’s Joint Committee Report, Rejection of the Fourteenth Amendment (Mar. 19 and 23, 1867), 393 Massachusetts Boutwell, Rep. George, Speech on Suffrage and the Fourteenth Amendment, National Anti-­Slavery Standard (Jan. 12, 1867), 337 Butler, Gen. Benjamin, Speech, Candidate for House of Representatives from Massachusetts, Toledo, OH (Oct. 2, 1866), 276 Legislative Committee on Federal Relations, Majority and Minority Reports on the Proposed Fourteenth Amendment (Feb. 28, 1867), 383 “On the Massachusetts Committee’s Majority Report,” Boston Daily Advertiser (Mar. 4, 1867), 390 McCardle case Ex parte McCardle, 560 “Mr. Field’s Argument in the McCardle Case,” Report of Congressional Repeal of Supreme Court’s Jurisdiction, New York Herald (Mar. 14, 1868), 412 McKee, Rep. Samuel: US House, Suffrage Amendment, Debate on Suffrage Bill (Jan. 28, 1869), 478 Merrill, Gov. Samuel, Iowa, Message to the Legislature, Ratification of the Fifteenth Amendment (Jan. 11 and 27, 1870), 588 Michigan, Ratification of the Fifteenth Amendment, Minority Dissent and Protest (Mar. 5, 1869), 549 Miller, Samuel Bradwell v. The State (1873), 654 The Slaughterhouse Cases (1873), 630 Milligan case Ex parte Milligan, 315 Reported Meeting between President Andrew Johnson and South Carolina Commissioner Colonel T. Weatherby, New York Herald (Dec. 28, 1866), 322 US House, Proposed Bill for the Restoration of the Southern States, Speech of Thaddeus Stevens (Jan. 3, 1867), 327 Mississippi “The Fifteenth Amendment,” New York Times (Apr. 12, 1869), 569 Legislative Committee Report, Rejection of the Fourteenth Amendment (Jan. 30, 1867), 358 US Congress, The Requirement Bill: Requiring Virginia, Mississippi,

and Texas to Ratify the Fifteenth Amendment as a Condition of Readmission, New York Herald (Apr. 10, 1869), 559 Missouri “Changing the Constitution by Telegraph,” Daily State Register (Mar. 13, 1869), 547 State Legislature Ratifies Partially Reported Fifteenth Amendment (Mar. 1, 1869), 546 Morgan, Gen. George, Speech, Coshocton, OH (Aug. 21, 1866), 261 Morrill, Rep. Justin: Joint Committee on Reconstruction, Membership (1865– 1867), 24 Morton, Oliver P. Indiana, Gov. Morton’s Message to the Legislature, Majority and Minority Committee Reports, Ratification of the Fourteenth Amendment (Jan. 11, 18, and 23, 1867), 349 Speech on the Fourteenth Amendment, New Albany, IN (July 27, 1866), 251 US Congress, The “Georgia Bill,” Debate and Passage (Dec. 16, 20, and 21, 1869), 581 US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 4, 1869), 493 Murphy, Gov. Isaac, Arkansas, Message to the Legislature, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) (Apr. 3, 1868), 413 National Anti-­Slavery Standard Boutwell, Rep. George, Speech on Suffrage and the Fourteenth Amendment (Jan. 12, 1867), 337 Phillips, Wendell, “The Senate and the Proposed Amendment” (Feb. 20, 1869), 532 Stanton, Elizabeth Cady, “This Is the Negro’s Hour” (Dec. 30, 1865), 30 Native Americans, citizenship: US Sen., Proposed Fourteenth Amendment, Debate (May 30, 1866), 195 Nebraska, Gov. David Butler’s Message to the Legislature, Ratification of the Fourteenth Amendment (May 17, June 8 and 15, 1867), 401 Nevada: “Ratifying the Amendment,” Daily Evening Bulletin (Mar. 4, 1869), 547 New Hampshire Hibbard, E. A., House of Representatives, Speech (June 26, 1866), 239 House Committee Report (Majority and Minority), Ratification of the Fourteenth Amendment (June 26 and July 6, 1866), 237 New Jersey Legislative Debate, Rejection of the Fifteenth Amendment (Feb. 7, 1870), 594

686

Legislative Debates and Ratification (Sept. 11, 1866), 272 Legislature Rescinds Prior Ratification (Feb. 19, 20, and 25; Mar. 5 and 27, 1868), 408 Randolph, Gov. Theodore, Message to the Legislature, Note on Rejection of Amendment (Mar. 24, 1869), 558 US Congress, Senate and House Resolutions Declaring the Ratification of the Fourteenth Amendment (July 21, 1868), 422 US House, Receipt and Return of New Jersey Withdrawal of Ratification (Mar. 30, 1868), 411 See also Stockton, Sen. John New Orleans, LA Equal Rights Convention, Remarks of Susan B. Anthony, Elizabeth Cady Stanton, and Frederick Douglass, Albany, NY (Nov. 20, 1866), 304 Johnson, President Andrew, Remarks on the New Orleans Riot, St. Louis, MO (Sept. 8, 1866), 270 “The New Orleans Riot,” Albany Evening Journal (Aug. 1, 1866), 252 “The Rebel Massacre in New Orleans” and “The Right of Free Assemblage,” Evening Telegraph (Aug. 1, 1866), 254 New Orleans Times Alabama, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) (July 14, 1868), 420 “A Little More about Suffrage” (Oct. 15, 1866), 277 New York Fenton, Gov. Reuben, Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 1, 2, and 10, 1867), 334 Ratification of the Fifteenth Amendment (Apr. 14, 1869), 570 “Ratification of the Fifteenth Amendment Rescinded,” New York Times (Jan. 6, 1870), 585 New York Daily Tribune/New York Tribune Grant, Gen. Ulysses, Restores Edwin Stanton to the Office of Secretary of War (Jan. 15, 1868), 404 Paschal, George W., “The Fourteenth Article” (Aug. 6, 1868), 427 New York Herald Bingham, John, “The Great Importance of the Fourteenth Amendment” (Dec. 3, 1868), 428 1868 Republican National Convention and Party Platform, Chicago (May 21, 1868), 415 “Impeachment . . . The President Pronounced Not Guilty” (May 17, 1868), 414 “Mr. Field’s Argument in the McCardle Case,” Report of Congressional Repeal of Supreme Court’s Jurisdiction (Mar. 14, 1868), 412

Index and Table of Cases Reported Meeting between President Andrew Johnson and South Carolina Commissioner Colonel T. Weatherby (Dec. 28, 1866), 352 US Congress, The Requirement Bill: Requiring Virginia, Mississippi, and Texas to Ratify the Fifteenth Amendment as a Condition of Readmission (Apr. 10, 1869), 559 New York Times Fifteenth Amendment: “The Amendment of the Constitution Regarding Suffrage” (Mar. 8, 1869), 551; “The Fifteenth Amendment” (Apr. 12, 1869), 569; New York, “Ratification of the Fifteenth Amendment Rescinded” (Jan. 6, 1870), 585; “Wendell Phillips Advocates It—Ratification by Rhode Island” (May 30, 1869), 574 Fourteenth Amendment: “Georgia Restored to Civil Authority” (July 24, 1868), 424; “Madison,” Essays on the Fourteenth Amendment, Nos. I, II, and V (Nov. 10, 15, and 28, 1866), 297; “The Progress of Reconstruction—What the ‘Secret Directory’ Proposes” (Apr. 30, 1866), 156; Proposed “Compromise” Amendment (Feb. 5, 1867), 363; “The Reconstruction Debate in the Senate, Mr. Howard Speaks on Behalf of the Committee” (May 24, 1866), 193 New York Tribune. See New York Daily Tribune/New York Tribune Nicholson, John: US House, Debate, Apportionment Amendment, Speech of John Bingham (Jan. 25, 1866), 55 North Carolina Holden, Gov. W. W., Message to the Legislature, Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) (July 3, 1868), 418 US Congress, An Act to Admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, to Representation in Congress (June 25, 1868), 417 Worth, Gov. Jonathan, Message to the Legislature, Joint Committee Report, Rejection of the Fourteenth Amendment (Nov. 20 and Dec. 6, 1866), 309

Ohio Fifteenth Amendment: House Debate, Rejection of the Fifteenth Amendment (Mar. 25 and Apr. 1, 1869), 559; Legislature Reverses Prior Vote and Ratifies the Fifteenth Amendment (Jan. 3 and 14, 1870), 586 Fourteenth Amendment: Gov. Jacob Cox’s Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 2 and 4, 1867), 335; Legislature Rescinds Prior Ratification,

Plain Dealer (Jan. 12, 1868), 404; Speech of Rep. John Bingham, Bowerston, OH (Aug. 24, 1866), 263; Speech of Rep. Columbus Delano, Coshocton, OH (Aug. 28, 1866), 265; Speech of Gen. George Morgan, Coshocton, OH (Aug. 21, 1866), 261; Speech of Sen. John Sherman, Cincinnati, OH (Sept. 28, 1866), 276; US Congress, Senate and House Resolutions Declaring the Ratification of the Fourteenth Amendment (July 21, 1868), 422 Oregon, Legislative Debate and Ratification (Sept. 14 and 19, 1866), 279 Oregonian: Oregon, Legislative Debate and Ratification (Sept. 14 and 19, 1866), 279 Orr, Gov. James, South Carolina, Message to the Legislature, Rejection of the Fourteenth Amendment (Nov. 27, 1866), 313 Owen, Robert Dale, 5 “News of Proposed Amendments in the Joint Committee on Reconstruction,” Chicago Tribune (Apr. 16, 1866), 151

Paschal, George W., “The Fourteenth Article,” New York Tribune (Aug. 6, 1868), 427 Patterson, James: US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869), 500 Patton, Gov. Robert, Alabama, Message to the Legislature, Rejection of the Fourteenth Amendment (Dec. 6 and 7, 1866), 308 Peirpoint, Gov. Francis H., Virginia, Message to the Legislature, Alexandria Gazette (Dec. 3, 1866), 307 Pendleton, Rep. George H., Congressional Campaign Speeches of Montgomery Blair and Pendleton, Reading, PA (July 18, 1866), 241 Pennsylvania Congressional Campaign Speeches of Montgomery Blair and George H. Pendleton, Reading, PA (July 18, 1866), 241 Legislative Debates on the Proposed Fourteenth Amendment (Jan. 14– Feb. 6, 1867), 366 Vote, Ratification of the Fourteenth Amendment (Feb. 6, 1867), 376 Phillips, Wendell “A Little More about Suffrage,” New Orleans Times (Oct. 15, 1866), 277 “The Senate and the Proposed Amendment,” National Anti-­Slavery Standard (Feb. 20, 1869), 532 Speech on the Fourteenth Amendment, Cooper Institute (Oct. 25, 1866), 277 “Wendell Phillips Advocates It— Ratification by Rhode Island,” New York Times (May 30, 1869), 574 Poland, Sen. Luke: US Sen., Proposed Fourteenth Amendment, Debate

687

Continued, Speech of Poland, Remarks of William M. Stewart (June 5, 1866), 202 Prigg v. Pennsylvania, 41 U.S. 549 (1842) US House, Civil Rights Bill, Speech of William Lawrence, Veto Override (Apr. 7, 1866), 147 US House, Debate, Civil Rights Bill, Speech of John Bingham in Opposition (Mar. 9, 1866), 135 privileges and immunities clause (Art. 4, Sec. 2; comity clause): The Slaughterhouse Cases (1873), 630 privileges or immunities clause (Fourteenth Amendment, Sec. 1), 5, 227 drafting: Joint Committee, Proposed Constitutional Amendment (Apr. 25, 1866), 154; Joint Committee, Proposed Constitutional Amendment, Adoption of John Bingham’s Draft of Section One (Apr. 28, 1866), 154; Joint Committee, Thaddeus Stevens Introduces Five-­ Section Constitutional Amendment (Apr. 21, 1866), 152; US House, Debate on Proposed Fourteenth Amendment, Speech of Thaddeus Stevens Introducing Amendment (May 8, 1866), 158; US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866), 170; US House, Thaddeus Stevens Introduces Proposed Five-­Section Fourteenth Amendment (Apr. 30, 1866), 155; US Sen., Proposed Fourteenth Amendment, Speech of Jacob Howard Introducing the Amendment (May 23, 1866), 185 Slaughterhouse Cases (1873), 630 United States v. Cruikshank (1876), 664 US House, Speech of John Bingham on the Meaning of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment (Mar. 31, 1871), 620 Randall, Rep. Sam: US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866), 170 Randolph, Gov. Theodore, New Jersey, Message to the Legislature, Note on Rejection of Amendment (Mar. 24, 1869), 558 rebel debt: US House, Passage of Proposed Amendment on the Rebel Debt (Dec. 19, 1865), 29 Reconstruction Acts US Congress, First Reconstruction Act (Mar. 2, 1867), 388 US Congress, Second Reconstruction Act (Mar. 23, 1867), 391 Reed, Gov. Harrison, Florida, Message to the Legislature, Ratification of the Thirteenth and Fourteenth Amendments (Reversing Earlier Rejection) (June 9, 1868), 417

Index and Table of Cases Republican Party: 1968 Republican National Convention and Party Platform, Chicago (May 21, 1868), 415 Revolution (New York, NY) Stanton, Elizabeth Cady, “All Wise Women Should Oppose the Fifteenth Amendment” (Oct. 21, 1869), 577 Stanton, Elizabeth Cady, “Women and Black Men” (Feb. 11, 1869), 527 Rhode Island Burnside, Gov. Ambrose, Message to the Legislature, Ratification of the Fourteenth Amendment (Feb. 2–7, 1867), 376 “Wendell Phillips Advocates It— Ratification by Rhode Island,” New York Times (May 30, 1869), 574 Richmond Whig (VA) Georgia, Legislature Rejects the Fourteenth Amendment (Nov. 13, 1866), 296 Virginia, Debate in the General Assembly, Rejection of the Fourteenth Amendment (Jan. 8–9, 1867), 332 right to bear arms (Second Amendment). See Second Amendment Right Way: Washington, DC, Passage of the District Suffrage Bill (Jan. 19, 1867), 331 Rogers, Rep. Andrew Joint Committee on Reconstruction, Membership (1865–1867), 24 US House, John Bingham Reports Proposed Amendment Empowering Congress to Secure the “Privileges and Immunities” of Citizens and the Due Process Rights of All Persons, Response by Rogers (Feb. 26, 1866), 99 US House, Debate, Apportionment Amendment (Jan. 22, 1866), 43 US House, Debate, Civil Rights Bill, Speeches of James Wilson and M. Russell Thayer (Mar. 1–2, 1866), 119 US House, Debate Continued, “Privileges and Immunities” Amendment, Speeches of John Bingham and Giles Hotchkiss, Vote to Postpone Consideration (Feb. 28, 1866), 108 US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866), 170

Saulsbury, Gov. Gove, Delaware, Message to the Legislature, Rejection of the Fourteenth Amendment (Jan. 1 and Feb. 14, 1867), 364 Saulsbury, Sen. Willard US Sen., Civil Rights Bill, Debate, Vote, and Passage (Feb. 2, 1866), 84 US Sen., Debate, Civil Rights Bill, Proposed Addition of Citizenship Clause (Jan. 29, 1866), 67 Sawyer, Sen. Frederick: US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869), 500

secession and the Civil War Majority and Minority Reports of the Joint Committee (June 8, 1866), 212 Texas v. White (1869), 561 Second Amendment United States v. Cruikshank (1876), 664 US House, Freedmen’s Bureau Bill, Adding “the Constitutional Right to Bear Arms” (Feb. 1, 1866), 83 Senter, Gov. Dewitt, Tennessee, Message to the Legislature, Committee Reports, Rejection of the Fifteenth Amendment (Oct. 13, Nov. 15 and 16, 1869), 578 Seward, William Final Proclamation of the Ratification of the Fourteenth Amendment (July 28, 1868), 425 Proclamation of Ratification of the Thirteenth Amendment (Dec. 18, 1865), 28 Provisional Proclamation of Ratification of the Fourteenth Amendment (July 20, 1868), 421 South Carolina, Gov. James Orr’s Message to the Legislature, Rejection of the Fourteenth Amendment (Nov. 27, 1866), 313 Shellabarger, Rep. Samuel US House, George Boutwell, Proposed Suffrage Bill and Suffrage Amendment (Jan. 23, 1869), 447 US House, Debate, Apportionment Amendment (Jan. 22, 1866), 43 US House, Suffrage Amendment, Alternative Versions Rejected, Passage of Amendment (Jan. 30, 1869), 489 US House, Suffrage Amendment, Speech of Charles A. Eldridge, Debate (Jan. 27, 1869), 463 Sherman, Rep. John, Speech, Cincinnati, OH (Sept. 28, 1866), 276 South Carolina Orr, Gov. James, Message to the Legislature, Rejection of the Fourteenth Amendment (Nov. 27, 1866), 313 Ratification of the Fourteenth Amendment (Reversing Earlier Rejection) (July 7 and 9, 1868), 419 Reported Meeting between President Andrew Johnson and South Carolina Commissioner Colonel T. Weatherby, New York Herald (Dec. 28, 1866), 322 Statement of House Minority, Ratification of the Fifteenth Amendment (Mar. 11 and 15, 1869), 554 US Congress, An Act to Admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, to Representation in Congress (June 25, 1868), 417 Southern loyalists “The Appeal,” Southern Loyalists Convention, Philadelphia, PA (Sept. 6, 1866), 268

688

A Call for a Convention of Southern Loyalists (July 4, 1866), 240 Circular Accompanying the Call for a Convention of Southern Loyalists (July 10, 1866), 240 Douglass, Frederick, Speech at Southern Loyalists Convention, Philadelphia, PA (Sept. 6, 1866), 269 Stanton, Edwin Grant, Gen. Ulysses, Restores Edwin Stanton to the Office of Secretary of War, New York Tribune (Jan. 15, 1868), 404 Johnson, President Andrew, Removes Secretary of War Edwin Stanton, Precipitates Impeachment Proceedings, Chicago Republican (Feb. 22, 1868), 405 Suspension of Secretary of War Edwin Stanton, Official Correspondence, Cincinnati Daily Gazette (Aug. 13, 1867), 402 Stanton, Elizabeth Cady “All Wise Women Should Oppose the Fifteenth Amendment,” Revolution (Oct. 21, 1869), 577 Annual Meeting of the American Equal Rights Association, Remarks of Stephen Foster, Stanton, and Frederick Douglass, New York, NY (May 12–13, 1869), 570 Equal Rights Convention, Remarks of Susan B. Anthony, Stanton, and Frederick Douglass, Albany, NY (Nov. 20, 1866), 304 “This Is the Negro’s Hour,” National Anti-­Slavery Standard (Dec. 30, 1865), 30 “Women and Black Men,” Revolution (Feb. 11, 1869), 527 Stevens, Rep. Thaddeus Johnson, Reverdy, “A Further Consideration of the Dangerous Conditions of the Country” (Nov. 15, 1867), 403 Joint Committee, Proposed Apportionment Amendment, Exclusion of “Insurgent States” (Jan. 9, 1866), 33 Joint Committee, Proposed Constitutional Amendment, Adoption of John Bingham’s Draft of Section One (Apr. 28, 1866), 154 Joint Committee, Thaddeus Stevens Introduces Five-­Section Constitutional Amendment (Apr. 21, 1866), 152 Joint Committee on Reconstruction, Membership (1865–1867), 24 US House, Apportionment Amendment, Speech of Stevens, Vote and Passage (Jan. 31, 1866), 80 US House, Bill for the Restoration of the Southern States, Vote to Recommit to Committee on Reconstruction (Jan. 28, 1867), 357

Index and Table of Cases US House, Debate, Apportionment Amendment (Jan. 22, 1866), 43 US House, Debate, Apportionment Amendment, Women’s Suffrage Petition (Jan. 23, 1866), 47 US House, Opening Day of Thirty-­Ninth Congress, Exclusion of Former Rebel States, Appointing Joint Committee on Reconstruction (Dec. 4, 1865), 20 US House, Proposed Apportionment Amendment Referred Back to Joint Committee (Jan. 30, 1866), 79 US House, Proposed Bill for the Restoration of the Southern States, Speech of Stevens (Jan. 3, 1867), 327 US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866), 170 US House, Proposed Fourteenth Amendment, Speech of Stevens, Vote and Passage of Amended Senate Version (June 13, 1866), 218 US House, Proposed Fourteenth Amendment, Speech of Stevens Introducing the Amendment, Debate (May 8, 1866), 158 US House, Speech of John Bingham in Opposition to Bill for the Restoration of the Southern States, Exchange with Stevens (Jan. 16, 1867), 342 US House, Stevens, Proposed Amendments (Dec. 5, 1865), 22 US House, Stevens Introduces Proposed Five-­Section Fourteenth Amendment (Apr. 30, 1866), 155 Stevenson, Gov. John, Kentucky, Message to the Legislature, Majority and Minority Reports, Rejection of the Fifteenth Amendment (Mar. 10–12, 1869), 552 Stewart, Sen. William US Sen., “Dual” Amendment on Suffrage, Office Holding, and Electors; Vote to Recede and Adopt Suffrage Amendment Proposed by House (Feb. 17, 1869), 530 US Sen., John B. Henderson, Proposed Suffrage and Office Holding Amendment (Jan. 23, 1869), 446 US Sen., Proposed Fourteenth Amendment, Debate Continued, Speech of Luke Poland, Remarks of Stewart (June 5, 1866), 202 US Sen., Suffrage and Office Holding Amendment (Jan. 28, 1869), 477 US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 4, 1869), 493 US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869), 500 Stockton, Sen. John New Jersey, Legislature Rescinds Prior Ratification (Feb. 19, 20, and 25; Mar. 5 and 27, 1868), 408

US Sen., Exclusion of Stockton (Mar. 27, 1866), 146 US Sen., Motion to Retroactively Exclude Stockton (Mar. 22, 1866), 144 US Sen., Opening Day of Thirty-­Ninth Congress (Dec. 4, 1865), 19 Stone, Gov. William, Iowa, Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 14 and 27, Mar. 9, 1868), 406 Strouse, Rep. Myer: US House, Proposed Fourteenth Amendment, Debate and Passage (May 10, 1866), 170 suffrage, African American, 5, 227, 435, 541 Douglass, Frederick: “An Appeal to Congress for Impartial Suffrage,” Atlantic Monthly (Jan. 1867), 323; The Equal Rights Convention, Remarks of Susan B. Anthony, Elizabeth Cady Stanton, and Douglass, Albany, NY (Nov. 20, 1866), 304; “Reconstruction,” Atlantic Monthly (Nov. 1866), 293; Speech at Southern Loyalists Convention, Philadelphia, PA (Sept. 6, 1866), 269 The Enforcement Bill and Repassage of the 1866 Civil Rights Act (May 31, 1870), 605 United States v. Reese (1876), 661 Washington, DC, Passage of the District Suffrage Bill, Right Way (Jan. 19, 1867), 331 suffrage, women. See women’s rights and suffrage Sullivan, H. V., Letter from Secretary of the Interior O. H. Browning to W. H. Benneson and Sullivan (Oct. 13, 1866), 289 Sumner, Sen. Charles Fifteenth Amendment: US Sen., John B. Henderson, Proposed Suffrage and Office Holding Amendment (Jan. 23, 1869), 446; US Sen., Suffrage and Office Holding Amendment, Speech of Sumner (Feb. 5, 1869), 498 Fourteenth Amendment: US Sen., Apportionment Amendment, Speech of Sumner (Feb. 6, 1866), 90; US Sen., Debate, Apportionment Amendment, Fails Two-­Thirds Vote (Mar. 9, 1866), 133; US Sen., Debate, Apportionment Amendment, Opposition of (Mar. 7, 1866), 126 Thirteenth Amendment: US Sen., Opening Day of Thirty-­Ninth Congress (Dec. 4, 1865), 19 Supreme Court, US Bradwell v. The State (1873), 654 Ex parte McCardle (1869), 560 Ex parte Milligan (1866), 315 Minor v. Happersett (1875), 656 The Slaughterhouse Cases (1873), 630 Texas v. White (1869), 561 United States v. Cruikshank (1876), 664 United States v. Reese (1876), 661

689

Swayne, Noah: The Slaughterhouse Cases (1873), 630

Tennessee Brownlow, Gov. William, Proclamation and Address, Ratification (July 4–19, 1866), 243 Senter, Gov. Dewitt, Message to the Legislature, Committee Reports, Rejection of the Fifteenth Amendment (Oct. 13, Nov. 15 and 16, 1869), 578 US House, Opening Day of Thirty-­Ninth Congress, Exclusion of Former Rebel States, Appointing Joint Committee on Reconstruction (Dec. 4, 1865), 20 US House, Readmission of Tennessee, Speech of John Bingham (July 20 and 23, 1866), 247 Tenure in Office Act, US Congress (Mar. 2, 1867), 389 Texas “The Fifteenth Amendment,” New York Times (Apr. 12, 1869), 569 House Report and Rejection of Proposed Fourteenth Amendment (Oct. 13, 1866), 282 Senate Report and Rejection of Proposed Fourteenth Amendment (Oct. 22, 1866), 283 Texas v. White (1869), 561 US Congress, The Requirement Bill: Requiring Virginia, Mississippi, and Texas to Ratify the Fifteenth Amendment as a Condition of Readmission, New York Herald (Apr. 10, 1869), 559 Thayer, Rep. Russell US House, Debate, Civil Rights Bill, Speeches of James Wilson and Thayer (Mar. 1–2, 1866), 119 US House, Proposed Fourteenth Amendment, Speech of Thaddeus Stevens Introducing the Amendment, Debate (May 8, 1866), 158 Thirteenth Amendment: Secretary of State William Seward, Proclamation of Ratification of the Thirteenth Amendment (Dec. 18, 1865), 28 Trimble, Rep. L. S.: US House, Debate, Apportionment Amendment, Women’s Suffrage (Jan. 23, 1866), 47 Trumbull, Sen. Lyman Civil Rights Bill: US Sen., Civil Rights Bill, Debate, Vote, and Passage (Feb. 2, 1866), 84; US Sen., Debate, Civil Rights Bill, Amended Citizenship Clause (Jan. 30, 1866), 73; US Sen., Debate, Civil Rights Bill, Proposed Addition of Citizenship Clause (Jan. 29, 1866), 67; US Sen., Trumbull, Judiciary Committee Reports S. Nos. 60 & 61 (Freedmen’s Bureau and Civil Rights Bills) (Jan. 11, 1866), 35; US Sen., Reporting Amendments to Civil Rights Bill (Jan. 12, 1866), 35

Index and Table of Cases Trumbull, Sen. Lyman (continued) Fifteenth Amendment: US Sen., John B. Henderson, Proposed Suffrage and Office Holding Amendment (Jan. 23, 1869), 446 Fourteenth Amendment: Speech, Chicago, IL (Aug. 2, 1866), 255 Freedmen’s Bureau Bill: US Sen., Debate, Freedmen’s Bureau Bill (Jan. 19, 1866), 39; US Sen., Freedmen’s Bureau Bill (Dec. 19, 1865), 28; US Sen., Freedmen’s Bureau Bill, Speech of Trumbull, Vote to Override Fails (Feb. 20, 1866), 98; US Sen., Trumbull, Judiciary Committee Reports S. Nos. 60 & 61 (Freedmen’s Bureau and Civil Rights Bills) (Jan. 11, 1866), 35

Van Winkle, Sen. Peter: US Sen., Debate, Civil Rights Bill, Amended Citizenship Clause (Jan. 30, 1866), 73 Vermont, Gov. Paul Dillingham’s Message, Ratification (Oct. 12–31, 1866), 287 Virginia Debate in the General Assembly, Rejection of the Fourteenth Amendment (Jan. 8–9, 1867), 332 “The Fifteenth Amendment,” New York Times (Apr. 12, 1869), 569 Peirpoint, Gov. Francis H., Message to the Legislature, Alexandria Gazette (Dec. 3, 1866), 307 US Congress, The Requirement Bill: Requiring Virginia, Mississippi, and Texas to Ratify the Fifteenth Amendment as a Condition of Readmission, New York Herald (Apr. 10, 1869), 559 Walker, Gov. Gilbert, Message to the Legislature, Ratification of the Fourteenth and Fifteenth Amendments (Oct. 5 and 8, 1869), 576 Waite, Morrison Minor v. Happersett (1875), 656 United States v. Cruikshank (1876), 664 United States v. Reese (1876), 661 Walker, Gov. David, Florida, Message to the Legislature (Nov. 14, 1866), 302 Walker, Gov. Gilbert, Virginia, Message to the Legislature, Ratification of the Fourteenth and Fifteenth Amendments (Oct. 5 and 8, 1869), 576 Ward, Rep. Hamilton: US House, Suffrage Amendment, Speech of Charles A. Eldridge, Debate (Jan. 27, 1869), 463 Ward, Gov. Marcus: New Jersey, Legislature Rescinds Prior Ratification (Feb. 19, 20, and 25; Mar. 5 and 27, 1868), 408 Warner, Sen. Willard: US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 4, 1869), 493 Washburne, Rep. Elihu: Joint Committee on

Reconstruction, Membership (1865– 1867), 24 Weatherby, Col. T.: Reported Meeting between President Andrew Johnson and South Carolina Commissioner Weatherby, New York Herald (Dec. 28, 1866), 322 Welch, Sen. Adonijah: US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869), 500 Wells, Gov. J. Madison, Louisiana, Message to the Legislature, Rejection of the Fourteenth Amendment (Jan. 28, 1867), 362 West Virginia Boreman, Gov. Arthur, Message to the Legislature, Ratification of the Fourteenth Amendment (Jan. 16, 1867), 338 “Ratifying the Amendment,” Daily Evening Bulletin (Mar. 4, 1869), 547 Williams, Sen. George: Joint Committee on Reconstruction, Membership (1865– 1867), 24 Wilson, Sen. Henry Speech, Anderson, IN (Sept. 22, 1866), 274 US Sen., “Dual” Amendment on Suffrage, Office Holding, and Electors; Vote to Recede and Adopt Suffrage Amendment Proposed by House (Feb. 17, 1869), 530 US Sen., Freedmen’s Bureau Bill, Black Codes (Dec. 13, 1865), 24 US Sen., Suffrage Amendment, Debate and Passage (Feb. 26, 1869), 536 US Sen., Suffrage and Office Holding Amendment, Appointment of Electors, Passage of “Dual” Amendment (Feb. 9, 1869), 525 US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869), 500 Wilson, Rep. James US House, Debate, Civil Rights Bill, Speeches of Wilson and M. Russell Thayer (Mar. 1–2, 1866), 119 US House, Debate, Civil Rights Bill, Speech of John Bingham in Opposition (Mar. 9, 1866), 135 US House, Debate, Civil Rights Bill, Speech of Columbus Delano (Mar. 8, 1866), 129 US House, Debate, Civil Rights Bill, Vote and Passage (Mar. 13, 1866), 142 US House, Passage of Proposed Amendment on the Rebel Debt (Dec. 19, 1865), 29 Wisconsin, Gov. Lucius Fairchild’s Message to the Legislature, Minority Committee Report, Ratification of the Fourteenth Amendment (Jan. 10 and 22, 1867), 377 women’s rights and suffrage Fifteenth Amendment: Annual Meeting of the American Equal Rights Association, Remarks of Stephen

690

Foster, Elizabeth Cady Stanton, and Frederick Douglass, New York, NY (May 12–13, 1869), 570; Elizabeth Cady Stanton, “All Wise Women Should Oppose the Fifteenth Amendment,” Revolution (Oct. 21, 1869), 577; Elizabeth Cady Stanton, “Women and Black Men,” Revolution (Feb. 11, 1869), 527; US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 4, 1869), 493; US Sen., Suffrage and Office Holding Amendment, Debate (Feb. 8, 1869), 500 Fourteenth Amendment: Bradwell v. The State (1873), 654; Minor v. Happersett (1875), 656; US House, Debate, Apportionment Amendment, Women’s Suffrage Petition (Jan. 23, 1866), 47; US Sen., Proposed Fourteenth Amendment, Speech of Jacob Howard Introducing the Amendment (May 23, 1866), 185 Stanton, Elizabeth Cady, “This Is the Negro’s Hour,” National Anti-­Slavery Standard (Dec. 30, 1865), 30 Woodhull, Victoria: US House, Judiciary Committee, Petition of Woodhull on the Subject of Female Suffrage (Jan. 2, 1871), 607; US House, Judiciary Committee, “The Woodhull Report” (Jan. 30 and Feb. 1, 1871), 609 Woodbridge, Rep. Frederick: US House, Debate Continued, “Privileges and Immunities” Amendment, Speeches of John Bingham and Giles Hotchkiss, Vote to Postpone Consideration (Feb. 28, 1866), 108 Woodhull, Victoria US House, Judiciary Committee, Petition on the Subject of Female Suffrage (Jan. 2, 1871), 607 US House, Judiciary Committee, “The Woodhull Report” (Jan. 30 and Feb. 1, 1871), 609 Worth, Gov. Jonathan, North Carolina, Message to the Legislature, Joint Committee Report, Rejection of the Fourteenth Amendment (Nov. 20 and Dec. 6, 1866), 309 Wright, Rep. William: US House, Debate, Apportionment Amendment (Jan. 26, 1866), 65

Table of Cases

Bradwell v. The State, 83 U.S. 130 (1873), 654 Ex parte McCardle, 74 U.S. 506 (1869), 560 Ex parte Milligan, 71 U.S. 2 (1866), 315 Minor v. Happersett, 88 U.S. 21 (1875), 656 The Slaughterhouse Cases, 83 U.S. 38 (1873), 630 Texas v. White, 74 U.S. 700 (1869), 561 United States v. Cruikshank, 92 U.S. 542 (1876), 664 United States v. Reese, 92 U.S. 214 (1876), 661