those who imposed and to those who suffered it, has thus been removed, and the disturbance and danger to the body politic occasioned by its existence has ceased. And though the suffering inflicted and losses sustained in removing this anomaly in our institutions are still felt keenly, there are already abundant evidences that the losses are soon to be forgotten in abundant compensations, and that the suffering is even now accepted as the necessary and unavoidable condition to a better national and social life.

§ 1926. The second clause of the same amendment provides that "Congress shall have power to enforce this article by appropriate legislation." On the 9th day of April, 1866, Congress acted under this clause in the passage of "an act to protect all persons in the United States in their civil rights, and furnish the means of their vindication." The first section of this act 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: 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 rights in every State and territory of the United States, to make and enforce contracts; 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." The subsequent sections impose penalties for the violation of the rights here declared, and give the appropriate criminal and civil remedies.

§ 1927. The authority of Congress to pass this act was affirmed by Mr. Chief Justice Chase in a case which arose under a statute of Maryland, for the apprenticing of negro children. That statute made important distinctions between white and colored apprentices; describing the master's right in the latter case as "property and interest," making no provision for education, and allowing an assignment of the indentures, by the master, to any person in the county in all which particulars it differed from the indentures required in the case of white children. The apprenticeship of colored children, under this statute, was declared by the learned chief justice to be involuntary servitude, within the meaning of

the amendment above given, and consequently wholly void.1 Had there been any doubt of its being void under this article, there could be none, it is believed, of its incompatibility with article fourteen, which was adopted soon after, and for the enforcement of which subsequent legislation was had, which we shall have occasion to refer to further on.2

1 Matter of Turner, 1 Abb. U. S. R. 84. See Blyew v. United States, 13 Wall. 581.

2 The act of April 9, 1866, from which we have quoted above, was re-enacted and enlarged May 31, 1870, and the stringency of its provisions increased. It has been held by the Supreme Court that the fact of a State denying to colored persons the right to testify on the trial of white persons accused of crime, would not authorize the federal courts to take jurisdiction of and try a charge against a white person of an offence against the State. Blyew v. United States, 13 Wall. 581. Mr. Justice Swayne had held otherwise at the circuit. United States v. Rhodes, 1 Abb. U. S. R.

28.

It may not be impertinent to allude here to an interesting question which, after emancipation, arose concerning contracts which had previously existed for the hire or sale of slaves, and upon which money was owing. Some of the reconstructed States forbade, by their constitutions, any recovery on these contracts; but, independent of these prohibitions, it was argued by some parties that when the laws which supported slavery were repealed, such contracts had no support in law. Of this opinion was Chief Justice Chase, who, in Osborn v. Nicholson, 13 Wall. 663, summarises his views as follows:

"1st. That contracts for the purchase and sale of slaves were and are against sound morals and natural justice, and without support except in positive law.

"2d. That the laws of the several States by which alone slavery and slave contracts could be supported were annulled by the thirteenth amendment of the Constitution, which abolished slavery.

"3d. That thenceforward the common-law of all the States was restored to its original principles of liberty, justice, and right, in conformity with which some of the highest courts of the late slave States, notably that of Louisiana, have decided, and all might, on the same principles, decide, slave contracts to be invalid, as inconsistent with their jurisprudence, and this court has properly refused to interfere with those decisions.

4th. That the clause in the fourteenth amendment of the Constitution which forbids compensation for slaves emancipated by the thirteenth, can be vindicated only on these principles."

See also opinion of Caldwell, Dist. J., in the same case at the circuit, 1 Dillon, 219. Also in Buckner v. Street, Id. 248. But the Supreme Court, in the case first mentioned, held that if the contracts were valid when made, they were not affected by emancipation.

CHAPTER XLVII

[BY THE EDITOR.]

THE FOURTEENTH AMENDMENT.

§ 1928. The fourteenth article of the amendments, to which we now direct our attention, must find its justification in the great changes brought about by the civil war, and in the disorders following and resulting therefrom, and which seemed to render new precautions and new securities important, if not imperative. Those disorders, it must be confessed, were not so serious as might reasonably have been anticipated, when the magnitude of the great social change was considered, and the circumstances under which it was finally consummated were kept in view. A great, brave but unsuccessful army was now broken up and remanded to civil life: many of its members had been reduced by the war from affluence to poverty; they returned to their homes to find the persons who had been their lawful slaves elevated by means of the military successes over them to a condition of equality before the law with themselves; they returned to find labor disorganized, the whole social life changed, their own prospects, anticipations, and hopes seriously impaired; the freedmen, whom they had always been taught to consider their inferiors, had assisted in effecting this revolution, and were now rejoicing over the very events which worked discomfiture and disaster to their late masters. Yet in the hands of the latter was still the political authority; in numbers they predominated; they were superior in intelligence; the colored people were still in great measure dependent upon them for subsistence, and it was unreasonable to expect that the relations between the two classes were to be adjusted to the new circumstances without the feelings and passions which war and emancipation had engendered finding occasional expression in acts of disorder, injustice, and violence. The disbandment of a great army is always a circumstance of no little solicitude and danger, but it is doubly so when it must be scattered among a people who have been elevated from

slavery to manhood by its defeat, but who, nevertheless, being the weaker in numbers and resources, must be more or less dependent on the defeated party for just and kind treatment, and even for the means of subsistence.

§ 1929. Nor were some other circumstances to be overlooked when the legislation, temporary or permanent, which the times. demanded came to be considered. Persons who had held high positions in the States and the nation had been prominent and active in the effort to create a new confederacy on the ruins of the Union, and reasonably might be expected to retain after their failure some degree of dissatisfaction with the government whose workings they had thought would justify a revolution, and from which, in consequence, they had endeavored, though in vain, to withdraw their section. In aid of the rebellion a very large indebtedness had been contracted, which the courts now held to be illegal and worthless, but which, nevertheless, a very considerable number of persons was interested in, and a still greater number believed to be just and deserving of payment. The debt, on the other hand, which had been created by the government to carry on the war, the same classes, and perhaps others, might be willing to repudiate, under the pretence that it had been incurred for a purpose which, in their view, ought not to have been accomplished. To Congress and to the majority of the people it seemed clear that these circumstances demanded additional securities by way of constitutional amendment, not only for the purpose of protecting the newly conferred rights and liberties of the African race, but also to secure against possible dangers the credit of the States and the honor of the general government. And acting on this belief, Congress, in June, 1866, submitted to the States a further amendment, which, two years later, after having received in due form the approval of the requisite number of the States, was published, by direction of the Secretary of State, as duly ratified.1

1 July 28, 1868. The proclamation in this case was peculiar.' 'It is a part of the history of the times that the President differed with Congress on the whole subject of the reconstruction of the States lately in rebellion, and that the proceedings taken by him for their reorganization, and for the establishment of loyal State governments, were set aside by Congress. The reasons for this action on the part of that body may be stated in general terms to have been, that the power to originate such proceedings was legislative and not executive; that the steps taken by the President id not sufficiently protect the government against the danger of such States passing immediately under disloyal control, or provide sufficient security for the liberties or

§ 1930. The first paragraph of the fourteenth amendment provides that "all persons born or naturalized in the United States, possessions of those who had been loyal to the government during the war, or of the freedmen. Accordingly Congress made new provisions for the establishment of State governments, and prescribed certain conditions to the representation of the States in question in Congress, the chief of which was, that the fourteenth amendment to the Constitution, previously submitted for adoption, should be accepted and adopted by them. The President regarded this action of Congress as unconstitutional and revolutionary, but the majority against him in Congress was so overwhelming that he was unable to control or check it with his veto. The larger number of the States, impatient of their anomalous condition, accepted the terms imposed by Congress, and a sufficient number of the other States having united with them in adopting the amendment to constitute three-fourths of all, the amendment was claimed to have been ratified. Meantime, however, the two States of Ohio and New Jersey had withdrawn their assent; and there being a question of their right to do so, Mr. Seward, then Secretary of State, issued his certificate of July 20, 1868, reciting the facts, and certifying to the adoption of the amendment "if the resolutions of the legislatures of Ohio and New Jersey, ratifying the aforesaid amendment, are to be deemed as remaining in full force and effect." This certificate was not satisfactory to Congress, and that body immediately passed a joint resolution declaring the amendment ratified; and on July 28, 1868, Mr. Seward published a new certificate in the following form:

"By William H. Seward, Secretary of State of the United States. "To all to whom these presents may come, greeting:

"Whereas, by an act of Congress passed on the 20th of April, 1818, 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 16th day of June, 1866, submitted to the legislatures of the several States a proposed amendment to the Constitution in the following words, to wit:

[Then follows the amendment.]

"And whereas the Senate and House of Representatives of the Congress of the United States, on the 21st day of July, 1868, 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