ent importance-lofty in conception, masterful in execution. Slavery in the United States was dead. To succeeding and not distant generations its existence in a Republic, for three-quarters of a century, will be an increasing marvel.

The success of reconstruction in the South carried with it the ratification of the Fourteenth Amendment by the requisite number of States. The result was duly certified by Mr. Seward as Secretary of State, on the twenty-eighth day of July, 1868, and the Amendment was thenceforward a part of the organic law of the nation. It had been carried, from first to last, as a party measure- unanimously supported by the Republicans, unanimously opposed by the Democrats. Its grand and beneficent provisions failed to attract the vote of a single Democratic member in any State Legislature in the whole Union. . . . It is very seldom in the history of political issues, even when partisan feeling is most deeply developed, that so absolute a division is found as was recorded upon the question of adopting the Fourteenth Amendment. It has not been easy in succeeding years to comprehend the deep-seated, all-pervading hostility of the Democratic party to this great measure. Even on the Thirteenth Amendment containing the far more radical proposition to abolish slavery, a few Democrats, moved by philanthropic motives, broke from the restraint of party and honoured themselves by recording their votes on the side of humanity and justice; but on the Fourteenth Amendment the line of Democratic hostility in Nation and in State was absolutely unbroken.

It seems incredible that Democrats can be satisfied with the record made by their party on this most grave and important question. Every one of the many objects aimed at in the Fourteenth Amendment is founded upon a basis of justice, of liberty, of an enlarged and enlightened nationality. Its minor provisions might be regarded as temporary in their nature, but its leading provisions are permanent and are essential to the vitality of a true republic. Even those which may be held as temporary deeply affect more than one generation of American citizens, and are of themselves sufficiently important to justify a great struggle for their adoption. . . .

Suffrage by the Fifteenth Amendment was made impartial,

but not necessarily universal, to male citizens above the age of twenty-one years.

The adoption of the Fifteenth Amendment seriously modified the effect and potency of the second section of the Fourteenth Amendment. Under that section a State could exclude the negro from the right of suffrage, if willing to accept the penalty of the proportional loss of representation in Congress, which the exclusion of the coloured population from the basis of apportionment would entail. But the Fifteenth Amendment took away absolutely from the State the power to exclude the negro from suffrage, and therefore the second section of the Fourteenth Amendment can refer only to those other disqualifications never likely to be applied, by which a State might lessen her voting population by basing the right of suffrage on the ownership of real estate, or on the possession of a fixed income, or upon a certain degree of education, or upon nativity, or religious creed. It is still in the power of the States to apply any one of these tests, or all of them, if willing to hazard the penalty prescribed in the Fourteenth Amendment. But it is not probable that any one of these tests will ever be applied. Nor were they seriously taken into consideration when the Fourteenth Amendment was proposed by Congress. Its prime object was to correct the wrongs which might be enacted in the South, and the correction proposed was direct and unmistakable; viz., that the Nation would exclude the Negro from the basis of apportionment wherever the State should exclude him from the right of suffrage.

When therefore the nation by subsequent change in its Constitution declared that the State shall not exclude the negro from the right of suffrage, it neutralized and surrendered the contingent right before held, to exclude him from the basis of apportionment. Congress is thus plainly deprived by the Fifteenth Amendment of certain powers over representation in the South, which it previously possessed under the provisions of the Fourteenth Amendment. Before the adoption of the Fifteenth Amendment, if a State should exclude the negro from suffrage, the next step would be for Congress to exclude the negro from the basis of apportionment. After the adoption of the Fifteenth Amendment, if a State should exclude the negro

from suffrage, the next step would be for the Supreme Court to declare that the act was unconstitutional, and therefore null and void. The essential and inestimable value of the Fourteenth Amendment still remains in the three other sections, and preeminently in the first section.

JAMES G. BLAINE, Twenty Years of Congress. I. 536-539; II. 309, 418.

CRITICAL COMMENT

LOWELL (1866)

But under the Johnsonian theory of reconstruction, we shall leave a population which is now four millions not only taxed without representation, but doomed to be so forever without any reasonable hope of relief. The true point is not as to the abstract merits of universal suffrage (though we believe it the only way toward an enlightened democracy and the only safeguard of popular government), but as to whether we shall leave the freedmen without the only adequate means of self-defence. And however it may be now, the twenty-six States certainly were the Union when they accepted the aid of these people and pledged the faith of the government to their protection. Jamaica, at the end of nearly thirty years since emancipation, shows us how competent former masters are to accomplish the elevation of their liberated slaves, even though their own interests would prompt them to it. Surely it is a strange plea to be effective in a democratic country, that we owe these people nothing because they cannot help themselves; as if governments were instituted for the care of the strong only. The argument against their voting which is based upon their ignorance strikes us oddly in the mouths of those whose own hope of votes lies in the ignorance, or, what is often worse, the prejudice of the voters. Besides, we do not demand that the seceding States should at once confer the right of suffrage on the blacks, but only that they should give them the same chance to attain it, and the same inducement to make themselves worthy of it, as to every one else.

JAMES RUSSELL LOWELL, Prose Works. V. 303, 304.

COOLEY (1880)

THE LAST THREE AMENDMENTS. - In the lapse of ninety years, a stage in political history is reached in which the fears and anxieties of the people took a new direction. In rapid succession one State after another in one-third of the Union had rejected and thrown off the federal authority, and it had only been restored through a war prosecuted on both sides with great bitterness and with enormous destruction of life and property. . . . It had been found in vain that the federal authorities held, and the federal courts decided, that under the Constitution a State had no right to withdraw from the Union; it was undeniable that for a time certain of the States had succeeded in severing their relations and setting up a new government; and though the federal authority had demonstrated that it had, under the Constitution, ample power for self-defence and protection, it was deemed wise and prudent to require the States to surrender the institution that was the immediate occasion of the civil war, as well as the power to deal unjustly and partially with classes of the people against whom there might be jealousies, prejudices, or antipathies, growing out of the struggle through which the country had passed, or out of some of the antecedent or concomitant circumstances. While, therefore, the first amendments were for the purpose of keeping the central power within due limits, at a time when the tendency to centralization was alarming to many persons, the last were adopted to impose new restraints on State sovereignty, at a time when State powers had nearly succeeded in destroying the national sovereignty.

THOMAS M. COOLEY, Constitutional Law. 208–210.

BRYCE (1896)

The fourth group is the only one which marked a political crisis and registered a political victory. It comprises three amendments (XIII., XIV., XV.), which forbid slavery, define citizenship, secure the suffrage of citizens against attempts by States to discriminate to the injury of particular classes, and extend Federal protection to those citizens who may suffer from the operation of certain kinds of unjust State laws. These

three amendments are the outcome of the War of Secession, and were needed in order to confirm and secure for the future its results. The requisite majority of States was obtained under conditions altogether abnormal, some of the lately conquered States ratifying while actually controlled by the Northern armies, others as the price which they were obliged to pay for the re-admission to Congress of their senators and representatives. The details belong to history: all we need here note is that these deep-reaching, but under the circumstances perhaps unavoidable, changes were carried through not by the free will of the peoples of three-fourths of the States, but under the pressure of a majority which had triumphed in a great war, and used its command of the National government and military strength of the Union to effect purposes deemed indispensable to the reconstruction of the Federal system.

JAMES BRYCE, The American Commonwealth.1 256.

DUNNING (1897)

They found a constitutional basis for the law in the Thirteenth Amendment. Slavery and involuntary servitude were by that article prohibited; and, by the second section, Congress, and not the state legislatures, was authorized to enforce the prohibition. What constituted slavery and involuntary servitude, in the sense of the amendment? Slavery and liberty, it was answered, are contradictory terms. If slavery is prohibited, civil liberty must exist. But civil liberty consists in natural liberty, as restrained by human laws for the advantage of all, provided that these restraints be equal to all. A statute which is not equal to all is an encroachment on the liberty of the deprived persons, and subjects them to a degree of servitude. It is the duty of Congress, therefore, to counteract the effects of any such state laws. Thus the constitutionality of the bill was maintained.

The content of the proposed Fourteenth Amendment marks very accurately the progress that had been made by the spring of 1866 in ideas as to the extent to which reconstruction should go. In the first section, the desire of the conservative Republicans to put the civil rights of the negroes under the protection of the United States was gratified. The fourth

1 Copyright, 1896, by the Macmillan Co.