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VIII

CONSTITUTIONAL AMENDMENT

HEN on the 8th of December, 1863, the Thirtyeighth Congress convened for its first session the Emancipation Proclamation had been in force for more than eleven months. All of the members of the House of Representatives of that Congress had been chosen by the people after the preliminary proclamation was issued, and, as already stated, in some cases the proclamation seemed to have exerted an influence on the election unfavorable to the administration. But during the year and more between the election and the convening of Congress there had been great advance in antislavery sentiment throughout the loyal states, and the achievements of the army with its addition of colored troops were proving the wisdom of the Emancipation policy. On the other hand, the efforts by compensation and other methods to secure the abolition of slavery by the action of slave holding, loyal states had not met with encouraging success, and gave little promise of accomplishing the destruction of slavery. But the purpose to remove the evil that all knew had caused the Rebellion and to leave no cancerous root to cause future trouble had become strong and intense in all the free states and was rapidly increasing in the loyal portions of the South.

The President in his annual message to Congress gave a glowing account of the workings of emancipation and especially the employment of colored troops in the Union Army; and in discussing the proclamation of freedom he made the famous declaration that he would never "return to slavery any person who is free by the terms of that proclamation." He referred very briefly, but earnestly, to his favorite proposition for compensation to "the states not included in the

Emancipation Proclamation" which should abolish slavery, and submitted an Amnesty Proclamation he had issued for insurgents who wished to resume allegiance to the National Government.

Thus the historic Thirty-eighth Congress began its first session in an atmosphere surcharged with hostility to slavery, and on the 14th of December-as early as possible after Congress convened-two Constitutional amendments abolishing and prohibiting slavery were introduced in the House, the first by Hon. James M. Ashley of Ohio, and the other by Hon. James F. Wilson of Iowa.

No action of a similar character was taken in the Senate until after the Holiday recess, when on the 11th of January Senator J. B. Henderson of Missouri introduced a joint resolution as a Constitutional Amendment abolishing slavery, and nearly a month later, on the 8th of February, Senator Sumner of Massachusetts introduced a similar joint resolution which was referred to the Committee on the Judiciary, as the measure introduced by Senator Henderson had been.

Senator Sumner asked to have his proposition referred to a special committee of which he was chairman, but finally acquiesced—though reluctantly-in its assignment to the Judiciary Committee. The very courteously worded rivalry between those two committees seems to have hastened the consideration of the two propositions, for after only two days, Senator Lyman Trumbull of Illinois, chairman of the Judiciary Committee, reported a joint resolution differing in its phraseology from both of the resolutions which had been referred to his committee. Mr. Sumner clung to the phrase "equality before the law," which he had copied into his resolution from the constitution of revolutionary France, but the consensus of opinion in the Senate was against him and the resolution as reported by Senator Trumbull was accepted for consideration, being in language almost identical with the Ordinance of 1787. The following is the Constitutional Amendment thus reported and considered by Congress from

the 10th of February, 1864, to the 31st of January, 1865, when it was passed and became part of the national Constitution, by being approved by the legislatures of three-fourths of the States:

ARTICLE XIII

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

A Presidential election was soon to be held and it was the purpose of the republican leaders to make this amendment an issue in that election, and to ask that it be approved by the people either as having been favorably acted upon by Congress or as still pending there.

With this in view the Senators and Representatives who favored and those who opposed the measure improved the succeeding weeks in preparation for the battle of giants that all knew would occur when it should be brought up for consideration and action. There was never any doubt that the amendment would receive the requisite two-thirds vote in the senate, but our statesmen were making history and were also preparing for the great struggle during the Presidential campaign. Therefore, when on the 28th of March, 1864, Senator Trumbull opened the debate on the measure he was followed by other senators whose speeches were of great erudition and strength.

On the 8th of April, 1864, the amendment passed the senate by a vote of 38 to 6, and was soon after taken up in the house where, as Mr. Blaine says, "Mr. Ashley of Ohio, by common consent assumed parliamentary charge of the

As there was at that time no probability of the amendment receiving the requisite two-thirds vote in the House, its con1 Twenty Years of Congress, Vol. I., p. 507.

sideration in that body was conducted with a view to its influence upon the Presidential campaign then in progress. Only three days-May 31st, June 14th and 15th—were given to its discussion, which was of dynamic force and effectiveness. On the 7th of June-between the beginning of the discussion on the 31st of May and its resumption on the 14th of June-President Lincoln was unanimously renominated by a national convention which with wild enthusiasm endorsed the amendment and applauded every favorable reference to the subject.

On the 15th of June the vote was taken and resulted in yeas 94, noes 64-a large but not a two-thirds majority. So the amendment seemed for the time disposed of and hopelessly lost, until General Ashley, having the measure in charge, changed his vote to the negative and so gained the right, of which he at once availed himself, to move a reconsideration, and thus to place the measure on the docket and keep it before the house for further consideration and action.

This skillful parliamentary maneuver was a stunning surprise to the opponents of the proposed amendment, and none of its friends were expecting such action. The great interest awakened by the proposition soon subsided and the measure seemed to be forgotten when, on the 28th of June-thirteen days after this unsuccessful vote-Mr. Holman, a democratic member from Indiana, inquired whether the motion to reconsider would be called up during that session of Congress. This question at once elicited the attention of every member and all listened intently as General Ashley replied: "I do not propose to call the motion up during the present session of Congress, but as the record has been made up we will go to the country on the issue thus presented . . . and when the verdict of the people shall have been rendered next November, I trust this Congress will return determined to engraft that verdict into the National Constitution." The scene that followed this episode can never be forgotten by those who witnessed it and realized its significance. There was profound