adult colored men within their jurisdiction. At the same time no step was taken toward compelling similar action in the loyal States, although a number of them voluntarily adopted it. The platform of the Republican party, upon which Grant was elected in 1868, contained the plank : "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.' 997 "There was something so obviously unfair and unmanly in the proposition to impose negro suffrage on the Southern States by national power, and at the same time to leave the Northern States free to decide the question for themselves, that the Republicans became heartily ashamed of it long before the political canvass had closed." 8 At the opening of the third session of the Fortieth Congress, in December of that year, various propositions were offered in both houses for an amendment to the Constitution which would extend negro suffrage throughout the country.9 On January 30th, 1869, the House of Representatives, by a vote of one hundred and fifty to forty-two, thirty-one not voting, passed the Fifteenth Amendment in the following form, which differed in only a few immaterial words from that finally adopted: "SEC. 1. The right of any citizen of the United States to vote shall not be denied or abridged by the United States or by any State by reason of 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 appropriate legislation the provisions of this article." 10 The Senate desired a more radical remedy, which would prevent discrimination by the States through religious, educational, or property qualifications, as well as those forbidden by the amend 6 Supra, § 38. 7 McPherson, History of the Re construction, p. 364. 8 Blaine, Twenty Years in Congress, vol. iii, p. 412. 9 Ibid., 10 McPherson, History of the Reconstruction, p. 399. The italics denote words not used in the final form. ment which the House proposed; and which would extend the protection to the right to hold office as well as the right to vote.11 Upon the motion of Henry Wilson of Massachusetts, that body adopted an amendment which would have altered the constitutions of more than half the States in the Union: 12 "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." 18 A further amendment was added to alter the second article of the Constitution so as to prevent the appointment of presidential electors by a State legislature; and the measure returned to the House, which refused to concur in either. The Senate refused a conference which the House requested; and passed a new amendment in the form finally adopted, except that the words "to hold office" were added after "the right to vote." In their debates the Democrats made a strong point that the question should not be submitted to the legislatures then in session, who had not been chosen with a view to such action, which the national platform of the Republican party had expressly disclaimed.14 Propositions to submit it to the legislatures next chosen and to State conventions were, however, voted down.15 The House refused to accept the senatorial proposition, and passed an amendment substantially like that first adopted by the Senate, prohibiting disqualification from office as well as suffrage "on account of race, color, nativity, property, creed, or previous condition of servitude." The Senate refused to accept this then. A conference was held, which resulted in a recommendation of the form which had originally passed the House, with a few verbal changes. On February 25th, 1869, the Amendment finally passed the House, and on the 26th the Senate, by a majority of more than two-thirds in each; and was sent to the State legislatures in its final form: 11 Ibid., 12 Blaine, Twenty Years in Congress, vol. ii, p. 416. 13 Ibid., pp. 416, 417; McPherson, History of the Reconstruction, pp. 400-404. 14 Blaine, who voted for the Amendment, afterwards admitted that the point was well taken (Twenty Years in Congress, vol. ii, pp. 413, 414). 15 Ibid., p. 413. McPherson, History of the Reconstruction, p. 405. "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. "SECTION 2. The Congress shall have power to enforce this article by appropriate legislation." 16 The peculiar language used, which gives color to the claim that citizens of the United States previously possessed the right of suffrage, was chosen to conciliate those who claimed that the Fourteenth Amendment had already conferred the franchise upon all citizens of the United States; 17 a position which the Supreme Court has since said was untenable.18 On April 10th, 1869, Grant approved an act of Congress which made the ratification of this amendment a condition precedent to the admission of Virginia, Mississippi and Texas to representation; 19 and on December 22d, an act which took from Georgia the representation that had been restored to her, and made her adoption of the Amendment a condition precedent to her rehabilitation.20 During the following year, the Amendment was ratified by the legislatures of the following States: Alabama, Arkansas, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Mississippi, Nebraska, Nevada, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Texas, Vermont, Virginia, West Virginia and Wisconsin, thirty in all, twenty-nine only being essential to its adoption. Of these, the New York legislature, subsequent to the ratification by some, but before three-fourths of all the States had ratified, repealed the ratification of New York. Since enough ratifications were obtained without counting that State, the question became immaterial. The legislatures of Ohio and Georgia, to which the question was first submitted, refused a ratification; but a subsequent Ohio leg 16 McPherson, History of the Rebellion, pp. 403-405. 17 See the Speeches of Charles Sumner and George F. Edmunds in the Senate, Feb. 3, 1869; quoted by Judge Cooley in Story on the Consti- 18 U. S. v. Reese, 92 U. S., 214, 217. Supra, § 38. islature,21 and the Georgia legislature after its reorganization under an act of Congress,22 gave the ratifications of their respective States. The legislatures of California, Delaware, Kentucky, Maryland, unanimously, and New Jersey, voted against a ratification. In Tennessee, the Amendment failed to pass the House, and was never reported to the Senate by the Committee on Federal Relations, to whom it was referred. Oregon also failed to ratify.23 On March 30th, 1870, the Secretary of State filed a certificate stating that the Fifteenth Amendment had been adopted.24 The Fifteenth Amendment was self-executing,25 and immediately upon its adoption erased from all State constitutions and statutes the provisions obnoxious to its commands.26 "It does not confer the right of suffrage on any one. It merely invests citizens of the United States with the constitutional right of exemption from discrimination in the enjoyment of the elective franchise on account of race, color, or previous condition of servitude." 27 21 McPherson, History of the Reconstruction, p. 562. 22 Supra, § 38, over notes 156, 157. 23 McPherson, History of the Reconstruction, pp. 488-498, 557–562. 24 Ibid., p. 545. The struggle in the Indiana legislature over the question of ratification gave occasion to sharp parliamentary tactics. An attempt by the Democratic senators to prevent a quorum by their absence was prevented by locking the door and then counting those who refused to vote (see the N. Y. World, May 3, 1888). In the lower house, all but ten of the Democrats resigned, thus reducing the membership to less than two-thirds of the members elected. Those who remained called attention to the constitutional provision, that "two-thirds of each house shall constitute a quorum to do business," and insisted that the assembly consequently could not act upon the amendment. The speaker, however, ruled that this section cited did not apply to proceedings upon the ratification of an amendment to the Federal Constitution. His action was approved by a majority of the members present, some taking the position that the presence of two-thirds of the actual members of the house was sufficient in all cases. The amendment was ratified by two-thirds of the members and a majority of all originally elected, and then question as to its validity was raised in Congress. (McPherson, History of Reconstruction, pp. 490491, note; Corbin v. Butler, Taft's Senate Election Cases, continued by Furber, pp. 541, 551; infra, Ch. XVIII.) 25 Civil Rights Cases, 109 U. S., 3, 20. 26 Neal v. Delaware, 103 U. S., 370, 383. 27 U. S. v. Harris, 106 U. S., 629, 637; infra, § 53. In Mills v. Green, 67 Fed. R., 818, which was afterwards reserved upon another point, and is a case of very doubtful authority, Judge Goff held that this amendment invalidated a registration law of South Carolina, § 53. The Power of Congress over the Right of Suffrage. The only express power of Congress to affect the right of suffrage within the States is contained in the second section of the Fifteenth Amendment, which provides "that the Congress shall have power to enforce this article by appropriate legislation." Pursuant to this, Congress may pass a law to protect the right to vote, at least for representatives in the lower House, by making criminal a conspiracy to prevent, by force or intimidation, a person from exercising his right of suffrage at such an election on account of his race, color, or previous condition of servitude.1 This amendment, however, gives Congress no power to legislate for the protection of any civil rights of colored men, or others, except the right to vote free from discrimination as aforesaid.2 It was the opinion of the Supreme Court of Pennsylvania, that the act of Congress which provided that "all persons who have deserted the military or naval service of the United States, who shall not return to said service, or report themselves to the provost-marshal within sixty days after the proclamation hereinafter mentioned, shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship, and their right to become citizens, and such deserters shall be forever incapable of holding any office of trust or profit under the United States, or of exercising any right of citizens thereof," 3 was not a penalty for the original desertion previously committed, but for persistence in the crime, and consequently not an ex post facto law; and that the United States had the power, in the exercise of its right to punish the citizen of a State for a crime against the United States, to deprive him, by imprisonment or removal from the State, of his opportunity to vote, and, as incidental thereto, to deprive him of the right to vote.1 Although Congress has no further powers to affect the right of that discriminated against ignorant voters, white as well as black. § 53. 1 Ex parte Yarbrough, 110 U. S., 651. See also U. S. v. Reese, 92 U. S., 214, 218. 2 Civil Rights Cases, 109 U. S., 3. 3 Act of March 23, 1865, 13 St. at L., p. 490. See U. S. R. S., § 1996. 4 Huber v. Reilly, 53 Pa. St., 112; s. c. Brightly's Election Cases, 69; McCrary on Elections (3d ed.), § 87. |