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514

THE

FOURTEENTH AMENDMENT.

partly an addition to the original instrument. tion, defining citizens of the United States and of the States, and forbidding any State to abridge their privileges or immunities, was new. Its second section, apportioning representation, was amendatory, though that part which provides for the reduction of representation in proportion to the whole number of male citizens in a State which may be denied the right to vote, was an addition to the Constitution; so, too, was the section on office holding and disfranchisement for engaging in insurrection or rebellion against the United States at any time, or giving its enemies aid or comfort. The provision respecting the validity of the public debt and the repudiation of any debt or obligation incurred in aid of insurrection or rebellion, at any time against the United States, or for any claim for loss or emancipation of any slaves, was substantially a new article as nothing of the kind occurs in the original Constitution. This amendment had several originals proposed at different times by different members of Congress. The most practical of these were gathered up by the Joint Committee on Reconstruction and reported as a fourteenth article to be added to the Constitution, but during the progress of this joint resolution

Its sec

bellion, 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.

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.

THE FIFTEENTH AMENDMENT.

515

through the Senate its language was greatly changed, and chiefly, by Jacob M. Howard of Michigan, with verbal changes by George H. Williams, a Senator from Oregon. But the spirit, if not the exact language of the amendment, may with justice be attributed to Thaddeus Stevens, of Pennsylvania, and Lyman Trumbull, of Illinois.

The Fifteenth Article was also an addition rather than an amendment, though it mingled the qualities of both, for it clearly changed the provision in the Constitution respecting the unlimited power of each State to prescribe qualifications for electors.1 Its language is almost identical with a part of the opening clause of the civil rights law of 1866, with which the name of Charles Sumner is identified.

The Constitution of the United States was a growth rather than a creation. The principal precedents for its articles are to be sought in the State constitutions, though many of its provisions were clearly dictated by the obvious needs of a government, which, as Hamilton said in the earliest suggestion on the subject, should be “the common sovereign” with “power sufficient to unite its members together, and direct the common forces to the interest and happiness of the whole." No less comprehensively it embodied the civil experiences of America during the colonial period, and thus conformed to established principles of English jurisprudence and English liberty.

1 Article I, Section 2, Clause 1.

CHAPTER VII.

LATER EXPOSITION OF THE LAW OF THE CONSTITUTION.

We have said in an earlier chapter that the most famous decision by Marshall's successor, Chief-Justice Taney, was in the Dred Scott case, and that in so far as it was a pro-slavery decision, it was speedily reversed by the results of the Civil War. After the inauguration of President Lincoln and the death of Taney, it may be said that the three departments of the government for the first time held in common Marshall's views of the

scope,

character and purpose of the Constitution. During the long period from the death of Marshall, in 1835, to the appointment of Chief-Justice Chase, in 1864, while the able and upright Taney was Chief-Justice, the executive and judicial departments were in sympathy, and, for a portion of the time, the legislative also, and they united in interpreting the Constitution strictly according to its letter, as taught in the school of Jefferson. But during this period of twenty-eight years, the Supreme Court did not reverse any of Marshall's decisions.

In almost the last case in which Chief Justice Taney presided, he denied the authority of the President to suspend the writ of habeas corpus at his discretion,” holding that its suspension must be by an act of Congress. The decision was handed down in April, 1861, amidst the excitement caused by the firing on Fort Sumter, and at the North was immediately given a political construction as the decision in the Dred Scott case had been. There

1 Chief Justice, 1836-1864.

2 The last case in which the Chief-Justice sat, Ableman vs. Booth, 21 Howard, 506.

SUSPENSION OF HABEAS

CORPUS.

517

was no doubt that the President and the Chief Justice disagreed on the principles of constitutional interpretation. The case gave rise to wide discussion, in which the supporters of the President took issue with the Court, and the supporters of the Chief-Justice took issue with the President.

The majority of Northern people knew little of the case, but most of those who examined it held to the President's views. “The Constitution," said he, "contemplates the question (the suspension of the habeas corpus) as likely to occur for decision, but it does not expressly declare who is to decide it. By necessary implication, when rebellion or invasion comes, the decision is to be made from time to time, and I think the man, whom for the time, the people have, under the Constitution, made the commander-in-chief of their army and navy, is the man who holds the power and bears the responsibility of making it. If he uses the power justly the people will probably justify him; if he abuses it, he is in their hands to be dealt with by all the modes they have reserved to themselves in the Constitution."1

The decision called forth many personal opinions, of which all written by Republicans sustained the President's position, and all written by Democrats did not attack it. Two years after President Lincoln's death, another case involving the same question reached the Supreme Court, which decided that the President cannot suspend the writ himself, unless authorized to do so by Congress. Lincoln's suspension of it in 1861 had been almost immediately ratified by that body. He had acted

1 Letter to M. Birchard and others, June 29, 1863; Lincoln's Works, II, 361.

2 See Campbell's Pamphlets, Philadelphia, 1862. 3 Ex parte Milligan, 4 Wallace, 114 (1867).

518

THE TERM “CONFEDERACY."

in accordance with the principle that in time of public danger, so imminent and grave, as to admit of no other remedy, the President, as Chief Executive and Commander-in-Chief of the army and navy of the United States, was justified in suspending the writ under the pressure of visible public necessity, and that Congress had merely done its duty in passing the act ratifying his conduct.1

It was to be expected that the adoption of the Thirteenth, Fourteenth and Fifteenth Amendments would soon result in a modified, if not a new interpretation of the law of the Constitution, and particularly that of the character of the Government of the people of the United States, and of the rights and privileges of its citizens. Until the Civil War, the General Government was usually referred to as a Federal Government, or the Confederacy,--the word Confederacy always being used by Southern statesmen, and with few exceptions by Northern also. In the debates with Douglas, in 1858, and in a few of his earlier State papers, Lincoln spoke of the General Government as a Confederacy. But as soon as the Confederacy of the slaveholding States was formed, the term was applied exclusively to it, and was abandoned at the North for the word Nation. This synonym for the government of the whole people is older than the Constitution, but it was used more or less vaguely by speakers and writers as late as 1861. We have seen how the word national was struck out twenty-six times from the first draft of the Constitution, and the words, Government of the United States substituted. It is difficult to fix the exact time or occasion when the word Nation was first employed to describe the

1 Halleck's International Law, 380.

2 For the use of the word Nation in the earlier plans for Colonial union see Vol. I, Book I, Chap. vi.

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