3 1151 02721 4232
)i^
?he Adoption of the Foartcenth
Amendment
A Dissertation
submitted to the Board of Univer-
sity 'Studies of the Johns Hopkins
University in conformity with the
requirements for the degree of
Doctor of Philclophy
19C6
Horace Edgar Flack
Contents
o
Preface
J
Chapter
I. The Freedmen's Bureau and
Civil Rights Bills ^
II. The Amendment before Congress ^ /
III. The Amendment before the
People /
IV. The Amendment before the
^tates // f
Preface
The interpretation wuich the Fourteentli Article
or the Amendment to the Constitution of tlie 'United
•^tates has received at the hands of the Federal
Supreme Court has given to thnt Article a aiear.ing quite
different from that vrhich many of tiiose who participated
in its drafting and ratification have asserted that it
v;as intended to have. An examination, therefore,
of the circumstances under vhich this addition to our
fundamental instrument of govei-Timent was made, to dis-
cover, if possible, the desires and expectations of its
f r^me rs and sur.'porters, becomec an interesting and
important inquiry.
The principal sources o." information used in the
preparation of the study have been the debates in
Congress, the reports of congressional committees,
especially those made by the Reconstruction Committee,
tlie
nals, docaments, and debates of the legislatures of
the several '^tates, and contemporary newspapers and
magazines .
Before publication it i^ the author's intention to
add to the results hiere presented chapters giving tiie
legislation enacted under and the judicial construction
or interpretation of, the XIV Amendment.
Che auti^ior's thanks are due to I'rofessor T. T.
TJilloughby rho suggested to him the preparation of this
work and has aided him v;ith advice daring its prosecution
THE FREEDLffill'S BUREAU /JJD CIVIL RIGHTS BILLS,
To get at the basis of the Fourteenth Amendrfient, to grf^Ep it's true
meaning fmd pxirt>ose, e.s vrell as to understand the object of it's framers
and of the people, it is nocesEary to analyze the Icgislaticr. which pre-
• ceded and followed the adoption of the Amendnent, the eaur,os or alleged
cauces v/hich led to such legii^lation and to the proposal and adoption of
the Amendment, ' The legislation preceding the adoption of the j^xiendnent
will probably give' en index to the objecte Congress was striving to obtcjin,
or to the evils for which a remedy was being sought, while the legislation
which followed it's adoption irill give at least a partial interpretation of
whet Congress thought the Amendment neant and what things or subjects it
^included. This â– legislation, together vdth the debates in Congress, v,'hile
being considered by that body, as well as the debates on tho .imendment it-
self, Shonld afford us sufficient material end facts on v:hi(;h to base a
fairly accurate estimate of what Congress intended to accomplish by the
Amendment. In fact, a careful analysis of these measures tnd debates
shcuid enable us to state vdth as much certainty as most concT.unions are
stated just what object or objects Congress and the framers of the Amend-
ment had in view in submitting it to the State^for ratification. As to
jyhat the people or the State
chapter.
A caucus of the Republican members of the House was held on Saturday,
Dncember 2d, 1865, Thaddeus Steven's, by tacit consent, assujEred the leadei*-
ship and submitted the following plan to the caucus; D., To claim the whole
question of reconstruction as the exclusive business of Congreaa. 2, To
regard the steps that had already been taken by the President for the res-
toration of the Confederate States as only provisional, and, therefore,
subject to revision or reversal by Congreo, 3, Each Kouse to forego
2.
the oxorcise of it's function of judging of the election and qu&lific£tionG
of it*E o-fTo. noip.berE in case of thoco eloctod by the Southern v^tater. This
plan vras accepted T.ithout objection. The caucus alco dirncted the clork of
the House to omit froct the roll all members from the^outhern^tates and
ordered that a joint resulution for the appointEont of a joint coimnittee of
fifteen be introduced. This Coiunittee ivas "to inquire into the conditions
of the States which fomed the EO-callcd Confederate ^States of America, and
report v;hether they or. any of them are entitled to be represented in either
House of Congress", and providing that 'until such report be Eade and acted
upon by Congrons no member from such States be received into either House,"
This progrtiEiie ras carried out in the House on the following Monday, (l)
This caucus and it's programme was but fore shadcving the struggle that
was to take place between the President and Congress over the question of
reconstruction.
The Preedmcn's Bureau Bill is the first, in joint of time, of the
efforts of CongrosB to reccnctiiict tho Southern States, The original bill
was enacted I'arch 3d, 1865, and was to expire one year after the terninatitTn
of hostilitioG, It's object T
were within the territory controllod by the Union forces.
The Thirty-ninth Congrosc asrembled in Decenber, 1865, rj\d on January
5'h, 1866. Mr, Iroribull introduced a bill to enlarge the powers of the
Freedmen 's Bureau. This bill was referred to the Judiciary CoLr'mittee of
the Senate, of wl-JLch IJrJ^ Teaiabull was Chairman, from which it was reported
back sis days later with amendments. Aside from the subject matter of this
bi^l, it's consideration is very important as shoialng the feelings and ten-
of
dencies of Cor^ressncn near the opening/^the session, the gradual weakening
of the conservatives, and their fi'iSad uni on with the Radicals.
(1) Dewitt, The Snae and Impeaclmient of Andrew Johnson, pp. 27 - 28,
and the CongresBional Globe, 1st Sess,, 39th Cong., pp. 5 -6,
Tbe bill,* as reported from the Committee ^ l.!r, Tranibull, consisted of
eight sections, the seventh and iighth of which are of importance to ue.
The other secjsions authorised the President to divide the country into
districts, to appoint coEirdssioners, to reserve frora sale or settlement
certain public lands in Florida, Mississippi nnd Arkansas, which were to
be allotted to the loyal refugees end freedmcn in parcels not exceed-
ing forty acres end to direct the commissioners to purchase sites or buildJngE
for schools and asylums.
The seventh section, which is of greatest importance, declares it to be
the duty of the President to extend military protection and jurisdJ.ction
over all cases where any of the civil rights or immunities belonging to
whit© persons ( including tJie right to make and enforce contracts, to sue,
be parties, and give evidence, to inherit, purchase, sell, hold and anyr real
ns personal property, end to have the full and equal benefit of all laws and
proceedings for the securing cf personH and estate'^ are refused or denied,
in consequence of local law, customs^ or predujice, on account of race,
color, or previous condition of servitude, or where different punishjaents or
penalties are inflicted than are prescribed for v/hlto persons coiriinitting like
offenses.
The eiglith section T:&e p3?!E«itive in it's nature, making it a misde-
meanor, punishable by a fine of $1000,00, or imprisonir.ent for one year, cr
both, for any one to deprive another of any of the rights enumerated in
the preceding section on account of race, color, cr previous condition of
servitude. These two sections of the bill were only to apply to those
-States or districts in which ttie ordinarjr course of judicial proceodingihad
been interrupted by the war. The officer'Sand agents of the Biiroau were to
hoar and determine all offenses comirdtted against the provisions of this
section, as well as all oases v/here there was discrimination on aBKount of
race or color, imder such rules b3i6. regulations as the President, through the
?7ar Department, mifht prescribs, (2) _,«__^_^
(2) Globe, 39th Cong,, 1st Sess,, pp„ 209 - 10,
?
The whole till itay be sold to be a war neaeure applicable in time of
peace, for militery officei^c vrex^e to be put in charge of the districts.
There seems to be little doubt but that it was unconstitutiofaal and
that it could scturcely bo justified oven ac a war measure. The measure
was unwise and inejqjedient to say the least of it, for it retarded
rather than aided reconstruction.
Besides providing for nilitary courts, tbe bill took from the \itates
matters Tyhich the States and local coLununities had up to that time entirely
controlled, for never before had the Federal CovemmGnt interfei-cd or
attempted to interfere with the rights of the x^ates to determine who should
be qualified to meJ
inherit, etc.
It was claimed that the second sectifen of the Thirteenth ^jnendmcnt
gave Congress the pov;er to do anything^ to axawe to the freedr.en ^1 the
civil rights that were secui-ed to v/hite men^ Mr, Hendricks, of Indiana,
denied iiiat construction, holding that no new rights were conferred upon
froedrien, sxi^ that the only effect ofthe Amendment was to break the bonds
which bound the slave to his master. He also contended that the laws of
Indiana, which did not pentdt negroes to acquire real estate, make contracts,
cr to intermarry vdth whites, would practicajly be arinullod by the bill,
sine© they were civil rights. He alsoijiregeycded the right to sit on a jury
^a civil right. (3)
Mr. TcuHibull, repljdng to l^Ir, Hendricks, said that the provisions of
this bill ¥,hich would interfere with the lavfs of Indiana could have no
c^ee^iion there, since the ordinary esKse^of judicial proceedings v/as not
interrupted. He held, however, that the second section of the Thirteenth
Amendment v/as adopted for the purpose of giving Congress pov;er to pass laws
destroying all discriiiirs.ticnE in civil rights against the black man. He
denied tJiat the bill interfered vdth the laws against th.e amalgamation of
(3) Ibid., p. 318,
y
tho races, since they equilly forbade the white men to marry a negro.
Y/hilo this bill was to be temporary, he rtated that the Civil Rij^hts Bill,
which T/as then before Congress, was intended to be permanent end to extend
to all parts of the country. It was incraabent on Cong^resK, he declared,
to S6cia:e this protection if the States v.'ould not. (4)
Senator ^."ilson, of Mascachusetts, who later became Vice-President
m
Tinder General Grant, pointed to tho fact tliat â– '.he laws of many of the
ciouthern estates were inconsistent with freedoin, and that the Civil Right s
Bill was to annul the black codes and put all under the prmtection of equal
laws, (5) Mr. Davis tried to amend the bill to secure an appeal /ebp the
decision of the acents of the Bureau to the Counts, but all his amendnientB
were rejected. (6) He also held thit the bill v.as unconstitutional
in that it invested the Bureau vdth judicial, powers, these powers to be
exercised by Army officers, and that it deprived the citizen of his right
to trial by jury in ci'vil cases contrary to the Seventh iimendment to the
Constitution. He agreed with Lir, Hendricks as to its effect ttn tJie laws
against the intermarriage of the races. He predicted that the vSouthorn
States would be kept out until Gongress had passed some obnoxious amendments,
had conferred suffrage on the negroes in the District of Columbia, had im-
posed the sa»e odious principle on thoNaouth which most of ihe -northern
r-itates rejected with scorn, exid had enacted the Freedmen's Eureau and Oivil
Rights Bills, (7)
The bill was passed in the Senate, January 25tb, 1866, by a vote of o7
to 10, the vote being strictly partisaii, (8)
U) Ibid./ pp. 321 - 323,
[£) Ibid., p, 340 ^j
6) Ibid., pp. 37^-^46^ 3li- H^o
\\\ Ibid., pp. 415 - 19,
(8) Ibid,, p. 421.
?
The bill wa§ then debated in the House at considerable length, Llr.
Da7a;on, of Ponnsylvtmia, in opposing; it, stated that he regarded the privi-
leges or rights d^^«e? by the fourth, fifth ahd si::th arccndnentfi as tifc* -
the birthright of every American. He asserted that the Kadicalc held
that both races were equal, sooielly sjid politically, and that this involved
the same rights and privileges af hotels, in railway cars, in churches, in
to
schools, tiie nane right to hold office, Mss sit on juries, to vote,
to preside over courts, etc. (9) VShile -aais interpretation probably
could not be given to the bill itself, it yet shows Jifesrt soEe of the minority
thought and felt to be the inevitable result of the doctrines enuiiciated
by the Radical leaders, and as will be seen later, these very principles
T/ere finally incorporated into the laws of the nation's Government by tlie
party and m^ vvho denied having any puch intentions,
Mr. Ke»r, (lO) of Indiana, and llr, Marshall, of Illinois, were of the
opinion that the tlrdrteenth Amendment did not authorize the bill. The
latter asserted tliat if the bill were carried out, it would be in the power
of the Federal Government to establish military tribunals in every State
where there was discrimination against negroes. He regarded the right to
LI rights -enf
color a (ll)
Mr. Rousseau, of Kentucky, said that under the operation of th© bill
a minister refusing to marry afaegro and white person would be conanitting a
criminal act and would consequently be subject to 4 penalty imposed by the
eighth section. He also declared that it gave hegroes the same privilege -^
in railway cars and theaters, and that there would be mixed shhools where
it vfas in operation. He cited a letter from Charleston to show that ho
was right in regard to schools, pnd declared that no one could successfully
combat his position, and v;hile he was interrupted several times, no one
;9) Ibid., P, 541.
,10 J Ibid., p. 623.^,
.11) Ibid,, ppo 62^'- 29,
/o
questioned his statements in regarcl to those things, (12)
l»lr. Moultcn held that the right to sit in juries and -theright to -
marry were not civil rights, but I»Ir, Thornton of the sane -ptate thought
otherTd.se, (13) Mr. Grinnell, of Iowa, seemed to regard the^right to
bear arms^^a civil right, for in giving evidence to shov? that the bill vras
needed in Kentuc!^'-, he pointwd to the fact that negroes v?ere not allowed
to keep a gun, to sit on the jury, or to vote, (14) I.!r, Eliot, of
MassfehusettE, who had charge of the bill in the House, moved an .Amendment
to the seventh section by inserting as one of the rights to which negroes
were entitled "the constitutional right to boar arms." (15) Since the
a-
House adopted this /inendment, which was al»© concurred inby the Senate,
it is evident that the riglit to bear arms was regarded as one of tlie
rights pertaining to citisons, exid an this right is secxared by the second
Amendment, it may reasonably bo inferred that the other rights and privi-
leges secured or enumerated by the first eight /anendments,
were also regarded as belonging to all persons. The bill ps.ssed the
House Febrtiary 6tii, 186QI, by a vote of 136 to 33 (16) - only one
Republican ^from Llissoiuriy'voting in the negative.
When the bill was again before the Senate, with the House amendments,
Mr. Tefebull renarked that the amendment as to the right to bear arms
did not alter the meaning of the section. That is, that the right to
bear anas being a civil right secured by the Constitution v.ould have been
secured to the negroes by the bill in it's original form. (17,
fl2) Ibid., Appendix, pp. 69 - 71,
[13) Ibid., p. 632 ""
(I4)lbid,, p. 651.
[15) Ibid., p, 654
[165 I^i^'f P- 688
.17) Ibid., p. 743,
//
On Febrviai-y 19-th, the President roturned the bill to the Senate
with a veto F.essage, Ke thought it not only inconsistent with the pub-
lic welfare and imconctitutional in certain provisions, but also ob-
iiofc.ouB to the objection that it did not define the irivil rights and in-
micities to be secured to the froedmen by it. (18) Messrs, Davis and
Trtanbull were the only Senators who spoke on the veto. The fornar, in
Eupporting it, declared that the intennarriage of the races, commingling
in hotels, theaters, steamboats, and other xrivil rights and privileges,
had always been denied the free negroes, until llassachusetts had recently
grai^ted then, (19) lar, Trumbull spoke quite at length in opposition
to the veto, but never denied or questioned the contention of tlr, Davis.
6 - , -v ; /
The veto war> sustained February ^Oth, 4h-e vote bfelnf 30 to 18 in
favor of the bill, and- so^ not the necesstury two-thirds'" to override the
veto, (20) '
(18) Ibid., p. 916, Among tther things he declared: "I share with
Congress t^e strongest desire to secure to the freodmen the full enjo3rment
of their froedon snd property, ejid their entire^ependence aisd equality in
making; contracts for their labor; but the bill before me contains provisions
which, in ny opinion, are not warranted by the Constitution, and are not v/ell
suited to accomplish the end in view, In thoso eleven ^t ate s, the bill
subjects any white person who may be charged with depriving a freedman of
•any civil riglits or* immunitios belonging to white persons' to inprisonment,
or fine, or both, without, ho^vever, defining the 'civil rights and immuni-
ties' which are thus to be secured to the freedmcn by military law,
"The trials, having their origin under this bill^ are to take place with-
out the intervention of a jury, and rdthout any fixed rules of law or evi-
dence. The rules on which offenses are to he heard and determined by the
numorouE agents are such rules and regulations as the President, through the
\Tsj7 Departrient^, shall prescribe , No previous prosontment is required, nor
any indictment charging the commiLjnion of a crime against the lavrs; but the
trial must proceed on charges and siiecifications. The punishment will be -
not what the law declares, but such as a court-martial may think proper; and
from these arbitrary tribunals there lies no appeal, no vorit of error to any
of the courts in which the ^onstitutionaJJ of the United States vests exclusive
ly the judicial pov/er of the^Sounrty, " This system^ he said, of military
jurisdiction could not be reconciled vdth the fifth and sixth Amendments to
the Constitution of the United States.
Message is cJLso- in MoPherson's reconstruction, p. 68, In his second
veto of the bill, July 16th, 1866, be reaffirmed the objections given in his
veto, February 19th, and referred to the tivil ^ig.htsi^ill v-hich had been
passed over his veto, April 9th as a fortliJar reason sigainst the necessity
/^
Messrs, Doolittle, Cowan, Dixon, Morgan, and Stewart were Gntong the
Republicans voting with the Democrats, but some of those who were able
at that time ^ to be controlled by reason were soon won over by the Radicals.
TWhile the bill failed to become law, it was practically reenacted July
16th, 1866, over the veto of the President, His second veto was so slrorx,
howevei', that painty discipline and prejudice were neceGsary to keep it
from being sustained, as it could not have been sustained on it's merits, (SEl)
So bitter vms the fight against the President at the time that both
Houses passed the bill over the veto on the same day that it was received,
without debate in the House a«d with two speeches in the Senate, fr'wen before
the message was printed, (22)
of the bill. In reference to the Civil Rights Bill, he declared: "By the
£_Q, provisions of the act full protection is affoKbd through the district /Courts
of the United States, to all j>ersona injured and v/hose privileges, as thus
declared, are in any way imptj^ed; and heavy penalties are denounced against
the perion who will"ully viilates the law, I need not state that that law
did not receive my approval; yet it*s remedies are far more preferable than
those proposed in the present bill, the one being civil and the other mili-
tary,"
In reference to that part of the bill which made it possible for a man
to be deprived of his property contrary to the fif;^ Amendment, h© said:
"As a general principle, such legislation is unsafe, unwise, partial and un-
constitutional." McPherson's Reconstruction, p. 147,
(19) Glob©, ?9th Cong,, 1st Sess,, p, 936,
(20) Ibid,, p, 943,
(21) Eiirgess: Reconstruction and the Constitution, p, 89,
(22) Blaine, in his "Twenty years cf Congress", volume"*, , p. 171,
It required potent par suasion, reinforced by the severest party d
to prevent a serious break in both Houses against the bill
ays:
party discipline.
10.
The Civil Rights Bill war, midoubtedly the most imr^crtant bill
passed
during the first session of the 39th Congress, It was a compan-
ion measure of the Freedcon's Bureau Bill, both being introduced at the
sane time by Senator Tr^bull. Both bills sas also referred to the
saem^corainitteoy^a^ey^ea^back at the same time. Precedence was give^y
however, to the Freedmen's Bureau Bill, but after it's failure to becor.e
law, the Civil Rights Bill was tal-ren up and debated at great length - the
minority using every means possible to prevent it's passage.
The Radicals were very much chagrined by the successfull veto of the
Freedmen's Bureau Bill, and every efffert was made to bring the "i^O^^Ci. kj>-uJ
into line. The party white T/as brought to bear with telling effect,
e.s it was determined that the oivil Rights Bill should become law. The
first section of the Civil Ri hts Bill was le^most identical with ,/^ection
14 of the Freedmen's Bureau Bill as finally adopted, and it is to the first
section of the Civil Rights Bill that we especially wieh- to direct at_^
4«nti©n, since it was to secure the provisions of this section!^ that the
first section of the Fourteenth Amendment was incorporated into tBaaci *«»*^
c
jiJonstitution, The first section was in fact the basis of the whole
bill, the other sections meHBly providing the macMnery for its enforce-
ment.
Section one as originally introduced^ declared that there should be
"no discrimination in civil rights or imntmities among the inhabitants
of any >§tate or t-erritory of the United States on accoiint of raco 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 partj' shall have
been duly conHfccted, shall have the seme right to make and enforce contracts,
to sue parties, and give evidence, tbie inherit, purchase, lease, sell,
hold, and convey real and personal property, and to full and equal benefits
of all laws and proceedings for the security of person^ and property, and
shall be subject to like ptoniishmont, pains and pcnaltiesp and to none
11.
other, agy law, statute, ordinance, regulation, or custom, to the contrary
notvrithdtemding." It was subsequently added that all persons born in the
United States, and not subject to any foreign power, Indians not ^^^*-t
being excluded, were citizens of the United States. (23) The purpo£;G
of this clause was to make a declaration that negroes were citizens of ih e
United States, sjid so avoid the consequences of the Dred Scott decisiono
This is the ohly notable difference between the provisions of this section
of the Civil Rights Bill ahd those of the Freedmen's Btireau Billo
Mr, Tnmbull, Chairman of the Senate Judiciary Oorcaittee, and the
putative father ofHthe Civil Rights Bill, said that the purpose of the
bill was to destroy the d^i soritn j nati on made against the negro in the laws
of the J^ou them ^ates and to carry into effect the Thirteenth Amendiaent,
The second section of the ^ondnont gate tongress the power to pass e^ty bill
that it deemed appropriate to secure the freedom conferred by the first
section. -He^ cited the lawe of Sotith Carolina and Mississippi to show
that the negroes were discriminated against, Ahd said that nearlj: all
the state legislattses of the Southern States, khich had met since the
adoption of the Amendment abolishing slavery had practically re-enacted
the slave codes. The right to have fire-sjrms, to go from place to place,
to teach, to preach, and to own property, he regarded as the rights of a
freeman, end, that the laws denying these rights to the negroes might pro-
peily be declared void. He v/as candid enough, however, to state, without
being questioned, that the bill might be assailed on the ground that it