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Debate on Proposed Fourteenth Amendment - Bruce Frohnen, The American Nation: Primary Sources 
The American Nation: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2008).
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Debate on Proposed Fourteenth Amendment
May 29, 1866
The SPEAKER. The morning hour having expired, the first business in order is House bill No. 543, which was made the special order for this day after the morning hour, being a bill to restore to the States lately in insurrection their full political rights.
Mr. ASHLEY, of Ohio. Unless the members of this Congress who represent the loyal people of this country approach the proposition before us, providing for the restoration of the late rebel States, in a proper spirit and with mutual concessions, I fear we shall fail to accomplish the great work committed to our hands. I desire to approach its consideration with charity for all and malice toward none. I know that I approach it in a forgiving spirit and with a thankful heart. With thankfulness, because the din of war has been hushed and the national conflagration extinguished. In a forgiving spirit, because I know how much there is to be forgiven if we would reunite dissevered and broken ties, secure the perpetual unity of the nation, and bind up its millions of bleeding and broken hearts.
In all the votes which I have given or may give on the propositions for reconstruction, in all I have said or may say, I shall keep steadily in view the one great desire of my heart, which outweighs and overshadows all others, and before which the petty schemes of parties and of men dwindle into insignificance and appear to me criminal. That desire is to see the States recently in rebellion restored to all the rights, privileges and dignities of States of the American Union at the earliest day consistent with the national safety, and upon such terms as shall secure the power, unity, and glory of the Republic.
How can this most desirable result best be accomplished? In answering this interrogatory the first question which presents itself to every reflecting mind is this: has the Government of the United States as at present organized the constitutional power to demand or exact from the people in the late rebel States any conditions prior to the recognition of their recently reorganized State governments and the admission of their Senators and Representatives in Congress? If so, is it expedient to exact of them the terms or conditions proposed by the committee of fifteen, or such conditions of a like character as may finally be agreed upon by the two Houses of Congress, as conditions precedent to their resumption, as States, of all constitutional relations to the national Government which were severed by their acts of rebellion and war?
I claim that we have the power, and that it is not only our right but our duty to demand such conditions as the majority of the loyal representatives of this Congress may deem requisite for the safety and security of the nation. I believe we have the constitutional power, because I believe the States represented in this Hall during the war and now are the Government. If I did not believe this I could not vote for any of the propositions before the House or any proposition of a like character.
From the first I have held that when the people of the late rebel States abolished their constitutional State governments and confederated together in violation of the national Constitution and organized hostile State governments and a national confederate government, and maintained those governments by force of arms until the rebellion became so formidable as to claim the prerogatives of a national de facto government, and to have conceded to it by the United States and the great Powers of Europe belligerent rights, that from that hour constitutional State governments ceased in each of the States so confederated together, and until governments are reorganized in each of them in subordination to the national Constitution, and recognized by this Congress, there can be no constitutional State governments in such States.
Mr. RANDALL, of Pennsylvania. Will the gentleman allow me to ask him who he intends shall form the State governments—the people of the States, or who?
Mr. ASHLEY, of Ohio. I propose that the loyal people of these States shall reorganize these State governments and administer their governments under such rules and restrictions as the Congress of the United States, representing the people of the loyal States, shall require.
Mr. RANDALL, of Pennsylvania. Then I understand the gentleman to say that he is willing that the loyal people shall form State governments, or shall continue their State governments and protect and elect Congressmen as part of their duty. Do I understand him aright?
Mr. ASHLEY, of Ohio. Under such rules and restrictions as this Congress shall require.
Mr. RANDALL, of Pennsylvania. That is an after-clap.
Mr. ASHLEY, of Ohio. Now, Mr. Speaker, I hope I can go on without any more of these interruptions. From the outbreak of the rebellion I have sought to have all the Departments of the Government adopt and act upon this idea. I have held that the sovereignty of the nation was in the people who reside in the States which maintained constitutional State governments, recognizing the national Constitution as the supreme law of the land, and the Government which it created as the one to which all citizens owed a paramount allegiance. I have held that the sovereignty of the nation could not be impaired or destroyed within the territorial jurisdiction of the United States by the action, or the refusal to act, of any one or more States. In other words, that the people in the States which maintained their constitutional relations to the national Government were the only depositaries of the national sovereignty and the only constitutional governing power in the nation.
Holding these views, I insist that the people who maintained constitutional State governments, who, during the entire war, were represented here, and who are now represented here, the people who maintained this national Government and put down the rebellion, have a right under the laws of war as conquerors to prescribe such conditions as in the judgment of the majority of this Congress are necessary for the national safety and the national security. This is the right of the conqueror under every law, human and divine. If this be not the true theory, then, indeed, is our national Government a rope of sand.
Entertaining these ideas, at the extra session of Congress in July, 1861, I drew up a bill embodying them, but by the advice of friends I did not present it until the regular session in December. On the 12th of March following, by the direction of the Committee on Territories, I reported to this House “a bill to provide temporary provisional governments for the districts of country in rebellion against the United States.” That bill, on the motion of my then colleague, (Mr. Pendleton,) was laid upon the table by a vote of 65 to 56, a number of Republicans voting with the Opposition, and a still larger number not voting at all.
At the first session of the Thirty-Eighth Congress, upon consultation, it was thought best to have a committee on the rebellious States, and the late Henry Winter Davis offered a resolution for the appointment of such a committee. The committee was raised, and he was appointed its chairman.
After the committee was appointed, of which I was a member, I again introduced the old bill, with such modifications and additions as time had suggested. That bill which was reported passed both Houses of Congress, but did not receive the sanction of President Lincoln, and therefore failed to become a law.
At the second session of the Thirty-Eighth Congress I again introduced the same bill with some modifications, and by direction of the committee I reported it to this House. After a number of efforts to modify it so as to secure a majority vote, it was lost, and we were left at sea on this great question of reconstruction. And to-day we are reaping the fruits of our stupidity and folly. I allude to these facts to show how steadily the national mind has been marching up to this idea, that the men who remained loyal to this Government, who maintained constitutional State governments, and who during the war administered this Government are the Government.
Mr. WRIGHT. Will the gentleman from Ohio [Mr. Ashley] allow me to ask him a question?
Mr. ASHLEY, of Ohio. I would rather the gentleman would ask me his questions after I get through my argument.
Mr. WRIGHT. I wish simply to ask the gentleman to give us his definition of a loyal man.
Mr. ASHLEY, of Ohio. If the gentleman will ask me after I get through I will answer his question.
Mr. WRIGHT. Very well; I will ask the gentleman then.
Mr. ASHLEY, of Ohio. I was saying that I allude to those facts for the purpose of showing how steadily the national mind has been approaching this idea. And when this joint committee on reconstruction, composed of the ablest men in the nation, made their report the other day, they recognized the same idea, to wit, that the constitutional governments in all the rebel States were abolished; that during the war and now they were not in constitutional relations with the national Government. And the man, whoever he may be, who stands up and says they are now in constitutional relations to the national Government utters that which he knows to be untrue. The man who stands up and says that during the entire war the rebel States were entitled to be represented here lays down a proposition which would undermine and sap the very foundations of the Government. If these rebel States had the right to be represented here and had been represented here during this war, this Government would have been bound hand and foot, and we would have been incapable of resistance.
This, then, being the idea adopted by the committee of fifteen, I can support this bill. I know that the proposition submitted by that committee falls far short of what I expected, far short of what the loyal men in the South had a right to expect, far short of what the men who sacrificed so much to preserve this nation had a right to expect. But if I can get nothing better I shall vote for their proposition, as I have already voted for the proposed constitutional amendment which was sent to the Senate the other day. When that proposition was up I desired to offer an amendment to it. But the honorable gentleman from Pennsylvania [Mr. Stevens] who had charge of the measure had entered a motion to recommit, and would not allow the amendment to be offered. But I now send it to the Clerk’s desk, as the amendment I then desired to offer. It may do no good to send it to the Senate now, as I learn since I got on my feet that the amendment which we sent over has received, with an amendment to the third section, the sanction of a majority of the true Union members of that body, and will, undoubtedly, pass that body.
The Clerk read as follows:
Sec. 1. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Sec. 2. No State shall deny the elective franchise to any of its inhabitants, being citizens of the United States, above the age of twenty-one years because of race or color; but suffrage shall be impartial. And on the 4th day of July, ad 1876, all citizens of the United States above the age of twenty-one years, not convicted of crime or excluded from the right of the ballot by act of Congress or by the law of any State because of insurrection or rebellion against the United States, shall be electors in each State and Territory of the United States; and on and after the 4th day of July, ad 1876, all natural-born citizens of the United States thereafter becoming twenty-one years of age, and all aliens who may thereafter be naturalized and are above the age of twenty-one years and can read and write the English language, shall be qualified to vote for electors of President and Vice President of the United States, for members of the Congress of the United States, and for Governors and members of State Legislatures.
Sec. 3. Representation shall be apportioned among the several States according to the respective number of inhabitants in each.
Sec. 4. No payment shall ever be made by the United States or any State for or on account of the emancipation of any slave or slaves, or for or on account of any debt contracted in aid of insurrection or rebellion against the United States.
Sec. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Mr. ASHLEY, of Ohio. I do not desire to take up the time of the House in discussing this proposition, as I understand the Senate has practically agreed to sustain the proposition on representation which was sent them from this House a short time since. It will be noticed, that in prescribing the qualifications of electors, I omit the word “male” and use the words “all citizens of the United States above the age of twenty-one years.” I did this purposely, as I am unwilling to prohibit any State from enfranchising its women if they desire to do so. The Senate having struck out the third clause and inserted another, this amendment will serve no other purpose than to show what I desired to offer the other day.
But, Mr. Speaker, I have an amendment which I desire to offer to this bill—an amendment upon which I shall ask a vote, and to which I desire the attention of the House. House bill No. 543, as reported by the committee, requires the adoption of the constitutional amendment proposed before any State, no matter when it may be ratified, shall be admitted here, thus putting it in the power of the northern States, if they desire to do so, to exclude States which in good faith ratified this constitutional amendment and amended their State constitutions and laws so as to comply with all the conditions we make. I desire, then, to have the bill reported by the committee so amended that whenever any State lately in insurrection and rebellion shall have ratified this amendment in good faith, and shall have modified its constitution and laws in conformity therewith, that its Senators and Representatives shall be admitted into Congress; that is, that the loyal men of Tennessee and Arkansas now elected shall be admitted; but that as to the other States, they shall, before being represented in Congress, after the adoption of this amendment and the modification of their constitution and laws, elect, or reëlect, if you will, Governors and all other State officers, members of the Legislature, Senators of the United States, and members of this House.
Why do I ask for this provision? Because these governments, set up by the President of the United States, set up over the heads of loyal men, have every one of them elected traitors to official positions in those States, have elected traitors to this House, have elected traitors to the Senate. I insist that this provision shall be applied to them, so that when their constitutions and their laws are modified in accordance with the proposition which we lay down, the loyal men of those States shall, under the amended Constitution and laws, vote for the officers which are to be recognized by the Government of the United States. I ask the Clerk to read the amendment which I propose to offer:
The Clerk read as follows:
That whenever any State lately in insurrection shall have ratified, in good faith and irrevocably, the above recited amendment, and shall have modified its constitution and laws in conformity therewith, and after such ratification and modification of its constitution and laws shall have elected a Governor and the State officers provided for in the constitution of such State, including the State Legislature and Senators and Representatives to the Congress of the United States, under such limitations and restrictions as may be imposed by the constitution and laws of such State when amended as herein prescribed, the Senators and Representatives from such State, if thus elected and qualified, may after having taken the oaths of office required by law, be admitted into Congress as such: Provided, That neither the State of Tennessee nor Arkansas shall be required to reëlect a Governor and State officers or a State Legislature or Senators or Representatives to the Congress of the United States; but whenever either of said States shall have ratified the above recited amendment, and shall have modified their constitutions and laws in conformity therewith, their Senators and Representatives now duly elected and qualified may be admitted into Congress on taking the oaths of office required by law.
Mr. ASHLEY, of Ohio. It will be observed, Mr. Speaker, that, by the adoption of this amendment, every State which adopts in good faith the proposed amendment to the Constitution and modifies its constitution and laws in conformity therewith, and after such modification elects a Governor and members of the Legislature and Senators and members of this House, it shall have its Representatives admitted here. An exception, however, is made in the case of Tennessee and Arkansas, which now have loyal Governors and other State officers and loyal Legislatures. Those States would not be required, under this amendment, to reëlect their officers, but the Senators and Representatives already elected, if they can take the oath, would be admitted to seats in Congress, and their present State officers would be allowed to continue in their present positions.
I think this modification a very necessary one. Let gentlemen look over the South and see the character of the men who have been elected as Senators. In almost every instance, where they are not out and out open-throated rebels, who ought to be incarcerated in prisons or exiled from the country instead of approaching this temple of liberty; in almost every instance, I say, where there has been any concessions made to loyal men the Legislatures have elected moderate men for the short term and the most malignant rebels for the long term. Sir, look at Georgia; they would not elect Joshua Hill, but elected Alexander H. Stephens; and so of nearly every rebel State. If the southern people are stupid enough to suppose that such men as Alexander H. Stephens will ever be admitted into the Senate or House of Representatives they might as well be undeceived now. Hence, I say that in view of the fact that the loyal men have had no voice in those reconstructed governments, have had no voice in their legislation, have been dumb and silent under the sway of these traitors who were placed in power over them by the Executive, the loyal men of those States should have a fair opportunity to select men who will truly represent them under the Constitution and laws when modified in accordance with the constitutional amendment proposed by Congress.
I also have an amendment which I intend to offer when the other bill comes up, but will not take up time by reading it now. I will send it to the reporter and he can insert it with my remarks.
Let us look, Mr. Speaker, at the condition in which we find the country. I hold in my hand the propositions reported by the committee of fifteen. I need not read them. They have been carefully examined by every member. All over the land, North and South, a cry is raised against the report of that committee. I ask gentlemen if they can put their hands on a single page of human history where, after a rebellion has been put down of the character of the one we had to deal with, they can find the conquerors making propositions so mild, so conciliatory, and so merciful as these made by the committee of fifteen—propositions as applicable to the conquerors as the conquered. Yet we find men in this Hall, men all over the South, men holding high positions in the Government before the rebellion, and high positions in the rebel government, who have the effrontery to tell the people of this country that they will not accept such conditions. If they will not and we permit them to dictate their own terms, is not this a practical surrender on the part of the conqueror to the conquered? Suppose our position had been reversed; suppose the anti-slavery men of this country had gone into a rebellion as the South did, without a pretext, without cause, when they had a majority in this and the other branch of Congress, simply because a pro-slavery man had been elected President. Suppose this to have been the case, that State after State had seceded, had captured the forts of the United States, and had made war on the Union for four years, destroying half a million of lives, as well as running up a debt of over $3,000,000,000 for posterity to pay. I say suppose this to have been the case, do you believe any such proposition would have been made by those men when they had conquered as have been made by this Government, nay, proposed by this very House? Do you suppose that leading anti-slavery men, like Garrison, Phillips, Beecher, Greeley, and Gerrit Smith, would have been sent for by a pro-slavery Executive to be counseled with and sent home as provisional governors to organize States over the heads of the only loyal men in those States? Do you think there would have been any such stupid performance if the North had been in rebellion? No, sir, we would have been stripped naked, as was said by Henry A. Wise the other evening at Alexandria.
My friend from Iowa in front of me [Mr. Price] hands the paper containing the extract I am quoting, and I will read it:
“If I had triumphed,” said Governor Wise, “I should have favored stripping them naked. [Laughter.] Pardon! They might have appealed for pardon, but I would have seen them damned before I would have granted it. For myself, the boot being on the other leg, I take no oaths; I ask no pardons! [Prolonged cheers.] I give you that brigade—the old, the lasting, the enduring Wise brigade. [Cheers and applause.]”
Do you suppose if the rebellion in the North to which I have referred had been put down, any traitor would have been permitted to walk in Boston and utter such treason against the Government? No, sir; and yet we are denounced in this Congress as a rump Congress, as Jacobins, as sanguinary men. Why? Because we ask, in restoring the governments of the southern States, that our friends shall have a fair share in the administration of their State governments, and that the leading traitors shall be punished.
Sir, under the Administration, as matters are now going, not a single, solitary traitor will be punished. Rebel soldiers that were in prison have all been liberated, while the soldiers of the grand Union Army who are in prison for the slightest offenses remain, and you cannot get them pardoned out. These are unpleasant facts, but I could not pass them and do my duty without referring to them.
What do we ask? The loyal men of the nation ask that in the restoration of the rebel States the men who were our friends and allies during the rebellion—the loyal men—shall be clothed with the power of the local and State governments of the South. Is this asking too much? If this is not accorded to us, if these men are to come back here, the loyal oath to be repealed as is recommended, and no conditions are to be exacted; if these men are to come back here next year and take possession of the Government, so far from treason being punished and made odious it will only prove to have been a passport to favor and to power. . . .
Mr. Speaker, to me the only vital and living question growing out of this subject of reconstruction is whether the loyal men of the South, whether all citizens of the United States residing in the South, shall have the right of the ballot. And when I say all loyal citizens I mean all, black as well as white. I hold that every man born in the United States is a citizen of the United States, and that every citizen, native-born or naturalized, has the right to a voice in the Government under which he lives. It is a natural right, a divine right if you will, a right of which the Government cannot justly deprive any citizen except as a punishment for crime. Sir, every American citizen of the age of twenty-one years, not convicted of an infamous offense, has the right to vote for or against those who are to make and administer the laws under which he lives. That is the high prerogative of every American citizen. Anything short of that is but a mockery.
I want this Congress, before it shall adjourn, to insist that every man who has been loyal to the Government in the South, whatever his race or color, shall have the right to the ballot. We now have the golden opportunity. If you do not guaranty these precious rights of the citizen now you leave the great work before us unfinished; and I warn you that agitation will follow your refusal to enact justice, and that there shall be no repose until every citizen of the Republic is enfranchised and stands equal before the law. Shall we falter, Mr. Speaker, in this sublime hour of victory which God has given us, or shall we finish the work which He has committed to our hands by securing the complete enfranchisement of all citizens of the United States?
The voice of every friend of this country in Europe, as it comes to us across the sea, cries out to us to enfranchise the men who in the late struggle were our friends and our allies. From Switzerland, the grand republic of the Old World, there come to us words of counsel and wisdom which we ought not to disregard. From every land beneath the sun, where liberty is loved and human hearts have been touched by our heroic struggle, there comes to us a plea that in reconstructing this Government we shall first of all see to it that justice is the basis upon which we build.
And better than all this, from the loyal men of the South, both white and black, there comes up to us the prayer that we will see to it that they have justice; that we will not falsify the pledges which the nation has made. Sir, do gentlemen expect that we can make the pledges we have made, and then turn these people over to the tender mercies of their enemies and ours without calling down upon us the execrations and denunciations of all right-thinking men? If they do, they are mistaken. Shall we hear and answer these words of counsel and wisdom and the prayer of our friends and allies, or shall we turn for counsel and advice to our late enemies?
We are as a nation either to go forward in the great work of progress or go backward; we cannot stand still. And I am desirous to know whether this Congress is going to attempt the work of staying the great anti-slavery revolution which has swept over the country and obliterated all the pro-slavery landmarks erected by parties and by men. Sir, I have faith to believe that neither President nor Cabinet nor Congress can long stay with their puny efforts the grand decree of the nation. He who attempts it, be he President, Cabinet minister, or statesman, will fall before its advancing power, and his political grave will be marked by the skeletons of those who for the past quarter of a century, having betrayed liberty, were wrecked along the political coast and to-day lie unburied and unhonored because there were none so base as to do them reverence.
Sir, I know that our hour of triumph may be delayed; but I have faith to believe that we cannot be defeated. Let the ballot be placed in the hands of every loyal man in the South, and this nation is safe—safe from rebellion, safe from repudiation, safe from a war of races, safe from the domination of traitors in its councils. Sir, without the ballot in the hands of every loyal man the nation is not safe. The ballot is the only sure weapon of protection and defense for the poor man, whether white or black. It is the sword and buckler and shield before which all oppressions, aristocracies, and special privileges bow. Sir, Mr. Lincoln, in a letter written to Governor Hahn, of Louisiana, pleading for the right of the black man to vote, said most beautifully and, as I believe, prophetically that “in some trying time the vote of the black man may serve to keep the jewel of liberty in the family of freedom.”
I believe this most fully; and believing it, I would be false to myself and false to my country if I did not demand it. If I were a black man, with the chains just stricken from my limbs, without a home to shelter me or mine, and you should offer me the ballot, or a cabin and forty acres of cotton land, I would take the ballot, conscious that, with the ballot in my hand, rightly used, all else should be added unto me.
Sir, I would like to know whether there is one professedly loyal man in this nation who would rather confer the ballot upon a traitor to his country than upon a loyal black man who has fought to save the Republic. I should like to hear such a man speak out here or elsewhere. Sir, however much brazen-faced impudence there is in every public assembly, there is no man in this House so bold or so bad as to make such a declaration.
Mr. LE BLOND. With my colleague’s permission, I wish to ask him a question. I infer from his remarks that he is in favor of negro suffrage. I wish to know whether he is in favor of negro suffrage in the States.
Mr. ASHLEY, of Ohio. Everywhere.
Mr. LE BLOND. In the State of Ohio?
Mr. ASHLEY, of Ohio. Everywhere.
Mr. LE BLOND. Then I wish to ask the gentleman another question: does he claim that Congress has the power to confer the right of suffrage upon negroes in the States?
Mr. ASHLEY, of Ohio. Well, sir, I do not intend to put myself on record against the right of Congress to do that. I am not prepared now to argue the point with my colleague; but I will say to him that when the time comes for the American Congress to take action on the question, I will be ready to speak. I will not say now whether I would vote for or against such a proposition.
Mr. LE BLOND. I wish to ask my colleague one more question: is he in favor of the report of the reconstruction committee?
Mr. ASHLEY, of Ohio. Well, sir, I am voting for it.
Mr. LE BLOND. Is my colleague in favor of keeping the States out until the conditions prescribed in that report are complied with?
Mr. ASHLEY, of Ohio. If my colleague had listened to my remarks and to the amendment which I presented, he would not have felt called upon to interrupt me to put this inquiry.
Mr. LE BLOND. I would like to inquire why the gentleman yields the question of suffrage, as he does, in supporting the proposition of the committee.
Mr. ASHLEY, of Ohio. Because I cannot get it. [Laughter.] Is not that a fair answer?
Mr. LE BLOND. That is honest.
Mr. ASHLEY, of Ohio. Now, sir, let us look at this question for a moment from the stand-point of the black man. And he who will not look at this question from the stand-point of the black man is unfit to sit in judgment on this question. Let me ask gentlemen on the other side, with whom I always deal fairly, suppose your ancestors had been in bondage for two hundred years, and that this nation—this nation of hypocrites and liars for more than eighty years—had enslaved and degraded you as no people were ever degraded before—making merchandise of your entire race, while professing Christianity and a love for liberty. I say suppose this to have been your condition when this war begun—a war inaugurated on the part of your masters to establish a government which should perpetuate your bondage—and after becoming satisfied that we could not conquer your masters without your aid, we had invited you in the hour of the nation’s agony to join our army and help put down the rebellion, promising you your freedom, and that you had come two hundred thousand strong, and had stayed, if you did not turn, the tide of battle, thereby giving us the victory. I say suppose this to be the case, and after the rebellion had been crushed and your masters were put down by your aid, we had coolly and unblushingly turned you over to the control of local State governments administered by your late masters. I ask, what kind of justice would you call that?
Mr. ELDRIDGE. I wish to inquire—
Mr. ASHLEY, of Ohio. If you will answer that I will yield the floor.
Mr. ELDRIDGE. Was that so from the beginning?
Mr. ASHLEY, of Ohio. It was so with me. I do not know what issue the gentleman had. So far as his votes indicated, his position was on the other side.
Mr. ELDRIDGE. Was that the position of Mr. Lincoln and those who supported him from the beginning of the war?
Mr. ASHLEY, of Ohio. I do not think it was at the beginning.
Mr. ELDRIDGE. Was it at the end of the war?
Mr. ASHLEY, of Ohio. Yes, sir.
The SPEAKER. The gentleman’s time has expired.
Mr. GARFIELD. I move that my colleague’s time be extended.
Mr. LE BLOND. He is entitled to credit, and deserves extension. [Laughter.]
There was no objection, and it was ordered accordingly.
Mr. ASHLEY, of Ohio. Mr. Speaker. I want my friend from Ohio, or any one on that side of the House, to tell me, if after having fought to save the nation under the promise of freedom and the protection of his life and property, what would be his feelings toward those who committed the great crime of turning him over to the control of his enemies and ours? What would you say of such a Government? What would you say of the honor of its rulers? Sir, I know not what other men would say, but if I were a black man I would not submit. I would rather be the slave of one man who had a pecuniary interest in my health and life than to be the slave of a State whose government was controlled by my late masters. It is a terrible thing to be the slave of a State whose government is administered in the spirit of caste. Sir, if the members of this House could witness what I have often seen, free men made the slave of the State, they would know how intolerable is such a condition, and would not sleep soundly if by their vote they permitted four million people, who were our allies and friends in this late war, to become the slaves of a State whose government was in the hands of rebels.
Mr. HIGBY. They have reënacted the same laws.
Mr. ASHLEY, of Ohio. These laws have been reënacted in some of the so-called reconstructed States, as my friend from California remarks. Sir, I repeat, if this great injustice was done me I would not submit; and I tell you that these four million people, soon to increase to ten millions, will not submit to such monstrous legislation. If I were a black man I would rather go into rebellion and revolution than submit to such an intolerable wrong. I would take my children and go daily with them to the altar and swear eternal hostility to those who thus betrayed me. I would consecrate all the powers of mind and strength which I possessed to brand those with infamy who had been so false to my people, and to put them into history along with those who, in every generation, have disgraced the world as the betrayers of mankind and enemies of the human race.
Sir, nothing can give such security to the poor man as the ballot. The prejudice of caste is strong, but the ballot will soon banish its baneful spirit. If in the days of Know-Nothingism the Irishman had not had the protection which the ballot alone could give him his condition would have been intolerable. How much more intolerable the condition of the black man without the ballot when completely under the dominion of his late slave-master!
Mr. ELDRIDGE. Let me ask a question.
Mr. ASHLEY, of Ohio. Not now. When Richmond fell, when Lee surrendered, when the last rebel army surrendered, and the bells all over the North were ringing out their peals of joy, who were the men that stood up first in this Union and asked for mercy to a fallen foe? The men who had a right to speak, Garrison, Phillips, Beecher, Greeley, Bryant, and Gerrit Smith—the men of heart, of intellect, and of soul. While they demanded justice for black men and the loyal men of the South, they plead also for mercy to a fallen foe.
When I came here last spring to see the President he was talking about making treason odious, and declaring that traitors should take a back seat. I was more anxious to secure justice to our friends and allies than to execute vengeance on our enemies. All we asked then and all we ask now is justice—justice to our friends and mercy to a fallen foe. All we ask now for white men and black men in the South and in the North is justice; and I tell you, that by the blessing of God, we intend to have it. Be not deceived. You cannot always postpone the demands of justice. As a nation we have learned by sad experience that we cannot trample upon it with impunity. Neither laws nor customs nor despotism can silence its claim, because it is a principle implanted by the Creator in every human heart, and can never be wholly eradicated by the selfishness or tyranny of man. He who understands the simple teachings of the golden rule comprehends the application of justice alike by Governments and men.
It needs no learning or superior wisdom to interpret it. The ignorant black, so recently a slave, and the most scholarly white alike understand it. Justice demands liberty and equality before the law for all. It speaks in the heart of every man, wherever born, with an inspiration like unto that which spoke on the day of Pentecost with tongues of fire. Woe to the statesman or party or nation which tramples on this principle! Its complete recognition by our Government will bring us national grandeur and national glory, and secure unity, peace, prosperity, power. Its rejection will tarnish the fair fame of our country, and bring discord, dissension, adversity, war.
Let the corner-stone of each reconstructed State be justice and the cap-stone will be liberty. With liberty and justice as the fundamental law of our national and State governments there can be no war of races, no secession, no rebellion. It is injustice and oppression which bring dissension and war. The opposite will bring harmony and peace. He who votes injustice to-day will be held accountable by the people now, and in the great tribunal of human history will be justly chargeable with all the oppression, wrongs, and wars which must follow the enactment of injustice into law. The law-maker who demands nothing for himself which he will not concede to the humblest citizen is the only true statesman. Make the community of interests one by guarantying the equal rights of all men before the law, and the fidelity of every inhabitant of such a commonwealth becomes a necessity not only from interest but from a love of justice.
Sir, this Congress is writing a new chapter in American history. Let every man whose great privilege it is to record his name where it will stand forever, so record it as to secure the triumph of justice, and his name and memory shall have a life coequal with the Republic.
Sir, he who has comprehended the logic of the terrible conflict through which we have passed and studied with profit the lessons which it has taught, will have learned the point at which in our great march as a nation we have reached, and know something of the course which in the future it will travel.
Animated for many years by conflicting, sectional, hostile forces, I have lived to see since my entrance into Congress these antagonistic views so modified and melted into one that to-day the condition is accepted by all patriotic, right-thinking men, and the historian without confusion can make up the record. If this war has taught us any one lesson more clearly than another, it is that we are inseparably one people, that this continent can never again become the abode of human slavery, and that in all our future deliberations in these Halls old antagonisms will cease to divide us, and our hopes and aspirations become one, because our interests are one.
Let this measure, or those which the Senate may perfect, pass and go into the Constitution of the country; let the propositions before us become the law of the land, and you will have done something toward securing the triumph of justice. Pass these acts, and justice as a flaming sword will stand at the doors of the nation’s council halls to guard its sanctuary from the presence of traitors. Pass them, and he who approaches this temple of liberty shall pause at the threshold before entering and swear eternal fidelity to the Republic.
Let these propositions pass and the proposed amendment of the Constitution become part of our fundamental law, and a generation shall not pass away before witnessing the complete enfranchisement of every freeman and the entire abolition of all class legislation.
In this faith and with this hope, believing that Providence in the future as in the past will overrule all for our good and supply where we have failed, I am prepared to give my voice and my vote for whatever measure a majority of the loyal members of the American Congress may adopt for the restoration of the States lately in rebellion. . . .
The SPEAKER. The gentleman from West Virginia [Mr. Latham] has the floor.
Mr. LATHAM. Mr. Speaker, we seem to have fallen upon an age of theories. We are told from day to day with much seeming sincerity and an air of the most profound political sagacity that the Union when restored must be restored upon a basis which will make it as permanent as the everlasting hills and as invulnerable as the throne of the Eternal, and with such safeguards that even treason will no longer be possible within its jurisdiction. I need not refer to particulars or quote authorities or precedents upon this point to show that I state the case fairly. To attempt to do so would be but to recite a hundred speeches made upon this floor during the present session, and the daily editorials of a thousand newspapers, made and published throughout the length and breadth of the land during the same period, and would be only an insipid reiteration of what everybody knows. The people have heard so much upon this subject; they have heard such declarations so often and so confidently made, and by those whom they have confidence will do what they themselves say ought to be done and must be done, that those of them who really love their country and are devoted to their Government are almost ready to believe that the long-looked for millennium will be ushered in with the reconstruction of the Union. . . .
I now ask indulgence for a few moments while I explain as briefly as possible the difficulties which stand in the way of my support to this bill as a whole. Before, however, entering directly upon this discussion I will just here remark that I do not comprehend how or why the reconstruction or restoration of the States lately overrun by the rebellion involves the necessity of reconstructing the Constitution and Government of the United States. Was the Government of the United States overthrown, or were any of its parts or functions destroyed by the rebellion? If not, where or why the necessity of its reconstruction? Did the rebellion expose imperfection or weakness in any of its parts? Or did we, during its existence, feel the need of the exercise of any power which we did not at the same time feel we had the right to exercise? Did we experience during the rebellion that any change in the Constitution, or even in the form of our Government, could make us stronger than we were?
Sir, we had the right to use, and did use, all the means which God and nature had given us to preserve the life of the Republic. More men and more money were the only agencies which could have given us additional strength, and constitutional amendments could not supply these demands. Sir, even the success of the rebellion would have proved nothing against the wisdom of the provisions of our Constitution, the success of republican institutions, or the strength and permanence of our form of government which it would not have proved equally against that system called the laws of nations, and which we are informed supplanted the Constitution during the war. Much less does the mere fact of rebellion prove anything against either, for all the systems of which we have any information, from the most arbitrary and unjust on earth to that which was established by eternal wisdom for the government of angels in heaven, have been assailed by organized rebellion.
“Irreversible guarantees against rebellion” are a myth, a farce, a deception—mere clap-trap, coined for party purposes—the device of demagoguery, and not the dictate of statesmanship. Security against rebellion is in the administration rather than in the form of government. Place all political power securely in the hands of its friends, and then make it, by the manner of its administration, what the Almighty intended civil government to be—“a terror to evil-doers, and a praise to them that do well”—by making the punishment of crime and the reward of virtue swift and certain, and you have the guarantees, and all the guarantees, against the renewal of the conflict here that the Almighty has in heaven against its renewal there.
There are two principles involved in the provisions of this bill which I desire to notice. First, that the approval of three fourths of the States now represented in Congress is sufficient to ratify the constitutional amendment. And second, that the ratification of the constitutional amendment recited in this bill shall be a condition-precedent to the right of representation in the States now unrepresented in Congress. These principles are necessarily based upon the presumption that these are not now States of the American Union. If this presumption be true, I ask gentlemen when and by what act they ceased to be States? Was it by the act of rebellion? That I admit was the design of the rebellion; but the rebellion failed in its purposes. Was it by the formal act or ordinance of secession? To state this proposition is now to answer it.
Am I told that the recognition of belligerent rights by the law of nations severed the connection? That the law of nations prevailed during the war and must prevail during the settlement growing out of it? I admit that the United States had the right to, and did, exercise and accord belligerent rights during the war to any extent justified either by policy or the dictates of humanity; but in so doing they never for a moment surrendered the rights of the sovereign; and that upon the submission of those in rebellion to the Constitution and laws the right to the exercise of belligerent powers under the law of nations ceased. Sovereignty alone prevailed—had triumphed; the Constitution and municipal law of the land attached, and the treatment to be accorded the offenders must be under the provisions of and in accordance with these instead of the law of nations, administered by the United States as sovereign and not as belligerent. Who, until at the present time, ever heard of a sovereign Power governing in time of peace any portion of its subjects as belligerents under the law of nations? Oh, what fools the wise men of past generations have been! How they must have desired to see the things that we see, to hear the things that we hear, to know the things that we know! How hard to die without seeing, hearing, and knowing them!
Sir, I assert, without fear of overreaching the principles of law governing the case, that loyal citizens, by being for a time overpowered by the rebellion, have lost none of the rights which attach or ever attached to them by virtue of the Constitution of the United States; and that consequently when they restore their State governments in harmony with that of the United States, they are entitled to exercise all the functions of a State, and to all the rights of a State in the Union. I say the “loyal citizens,” for I believe the disloyal are entitled under the Constitution to no right except the right to be hung. When, however, an amnesty or pardon for past offenses is granted, the party having received it may then appeal for protection, and as of right in all matters affected or reached by such amnesty or pardon, to that law which, had it been enforced against him, might have demanded even his life. The law against which he had offended and by which he was condemned, which, while under condemnation, only thundered its anathemas against him, has, upon pardon and reconciliation, become his friend and the advocate of his rights which attach by virtue of such pardon. Now, in what do these rights consist? Do they consist solely of what we term “civil rights,” or do they include “political rights” also? My own impression is that they include just what the sovereign granting the pardon may elect to have them include, nothing more, nothing less. And that if it is not yet safe to trust political power in the hands of the reconstructed, it should simply be withheld from them, and that those only who have been continuously loyal should be permitted to exercise it.
The committee, however, has failed to give us any information as to whether those State organizations are in the hands of the friends or the enemies of the Federal Government, or whether those recently in rebellion, but who have been pardoned, may yet be safely invested with “political rights.” Where is the protection or encouragement they propose for the Union men of the South? Where, are the recommendations of this committee upon the most vital question of the day, or involved in all the issues now upon us—the reward and encouragement of loyalty in the section lately overrun by rebellion? Echo answers, where! Gentlemen have labored hard to prove that the loyal are in like condemnation with the disloyal, because they were within rebel lines during the war; that all are “alien enemies” together; that the law of nations justifies us in treating them as such, and that we can make no discrimination between them. Let us see how this is. Allegiance and protection are reciprocal duties, binding, the one upon the citizen, the other upon the Government; and inseparably connected with the faithful observance of all the obligations of allegiance are all the rights which attach by virtue of citizenship. Now, when do these mutual obligations cease? Vattel, page 96, says:
“The natural subjects of a prince are bound to him without any other reserve than the fundamental laws; it is their duty to remain faithful to him, as it is his, on the other hand, to take care to govern them well. Both parties have but one common interest; the people and the prince together constitute but one complete whole, one and the same society. It is, then, an essential and necessary condition of political society that the subjects remain united to their prince as far as in their power.”
Am I told that the late civil war dissevered all these bonds and relieved both parties from the observance of these reciprocal obligations and duties? Chitty, in his note to Vattel, page 97, says:
“No individual can shake off his natural allegiance until the part of country where he resides is absolutely conquered and the parent State has acknowledged the severance.”
And in his Treatise on Commercial Law, page 129, he elaborates the same doctrine; and I assert, without fear of successful contradiction, that all the authorities on public law, where they touch upon this doctrine, confirm it.
The questions, how the subjects of a government who have been engaged in an unsuccessful rebellion may be treated, and how loyal citizens residing within the rebellious districts should be regarded, have never been considered questions legitimately belonging to the department of international law; because as subjects and citizens they are the objects of the local municipal regulations and laws of the country; the law of nations ceases to operate so soon as the state of war ceases to exist; and when we look to works of international law for authorities or precedents upon these points, we become bewildered because we are traveling out of the record. I have, however, some authorities which, though not bearing directly upon these points, go beyond and cover them. These authorities presuppose—necessarily, because wise men who have written upon these subjects never dreamed of the application of the principles of international law to a country subsequent to the overthrow of an unsuccessful rebellion. These authorities, then, presuppose the success of the rebellion and the permanent partition of the country. In the case of Respublica vs. Samuel Chapman, 1 Dallas, page 56, the court held that—
“None are subjects of the adopted government who have not freely assented thereto.”
And in the case of Kelly vs. Harrison, 2 Johnson’s Cases, page 29, the court held that—
“The division of an empire works no forfeiture of a right previously acquired, and as a consequence of it all the citizens of the United States who were born prior to our independence, and under the allegiance of the King of Great Britain, would be still entitled in Great Britain to the rights of British subjects.”
This very language has been reaffirmed by the Supreme Court of the United States; and all these principles here contended for are as old as the law and are of universal acceptance, except with the new school of authorities, who have not yet published their works.
Does, then, the obligation of impartial justice on the part of the Government toward the subject or citizen cease, while that of fealty on his part remains; or does the obligation of fealty attach without carrying with it all the rights and privileges of citizenship? No, they both cease at one and the same time, the same instant, when the Government acknowledges its inability to extend its protection to him, and not until then. But am I told that the exercise and according of belligerent rights during the late civil war actually amounted, in contemplation of public law, to an acknowledgment of the severance by the United States? If so, then all, loyal and disloyal, “without distinction of race, color, or previous condition of slavery,” within the limits of the late rebellion, are now aliens, foreigners, not citizens of the United States; and you have no more right, except as might makes right, to extend over them the provisions of your municipal law for the collection of taxes, and for other purposes, than you have to extend them over the people of Mexico, China, or the Russian empire. And why is Jeff. Davis to-day a state prisoner if you can deal with him only in accordance with the law of nations? The United States, sir, by the result of the late war, have acquired no right by conquest which does not legitimately belong to them as sovereign. It was simply a reassertion and triumphant vindication of their disputed sovereignty. The application of the law of nations works an extension or enlargement rather than a forfeiture or limitation of the rights of revolted subjects during the revolt, but all the rights and remedies of the sovereign, and all the pains and penalties which the law denounces against the offenders, an enlargement of power in the Government, and an abridgment of the rights of the offender, attach immediately upon the vindication of the national integrity.
I know that I am now trenching upon the doctrines of the distinguished gentleman from Pennsylvania, [Mr. Stevens,] and I desire information from him upon the point I now make. Admit, for sake of argument, that all within the lines of the late rebellion were and are “alien enemies.” By what principle or upon what authority would you define the limits of the late rebellion with sufficient certainty to ascertain who are “alien enemies”? When and by whom were they so defined? Was it by the President in his proclamation of August 16, 1861? The Government of Great Britain accorded “belligerent rights” to the rebels, by proclamation of the Queen, on the 13th day of May, 1861. The right to the exercise of “belligerent rights” by the United States has been recognized by the Supreme Court from the 15th day of May, 1861, and the President frequently changed the limits by proclamations of different dates, and on April 2, 1866, declared it without form and void—without “a local habitation or a name.” As I remarked in this House, on the 8th day of January last, “the rebellion was never bounded by State lines, but its authority was extended wherever its power could carry it.” The Supreme Court of the United States, upon this point, (2 Black, page 673, the decision being made during the existence of the rebellion,) say:
“It has a boundary marked by lines of bayonets and which can be crossed only by force; south of this line is enemy’s territory, because it is claimed and held in possession by an organized, hostile, and belligerent power.”
Now, who can define any fixed limits to the rebellion? To-day that “line of bayonets” is at Gettysburg, and all “south of that line is enemy’s territory, because it is held by an organized hostile and belligerent power”; to-morrow that line is at Richmond, and then all between Gettysburg and Richmond is not enemy’s territory, because it is not held by the enemy. To-day that “line of bayonets” bears hard upon Louisville, and “all south is enemy’s territory”; to-morrow that line is at Chattanooga, Atlanta, Savannah, Columbia, Raleigh! To-day that line is at Jefferson City; to-morrow at Little Rock, at Shreveport, at Galveston, at the Rio Grande—nowhere! Now, who, I ask, ever has defined or ever shall or can define the limits of the rebellion, so as to determine that all were enemies within certain fixed geographical limits? How long occupancy by the enemy and peaceable acquiescence by the inhabitants, does it require to convert the citizen into a “public enemy”—a day, a month, or a year? I trust the gentleman from Pennsylvania never got south of that “line of bayonets,” and thus became an “alien enemy,” though it strikes me I have heard that the “line of bayonets” was at some time extended north of some of his property, which must now be liable to seizure by the Government as “enemy’s property,” because it was within “enemy’s territory,” “claimed and held in possession by an organized, hostile, and belligerent power.”
What, sir, is the legitimate bearing of this doctrine upon the fundamental principles of our Government? This bill, sir, contains on its face, though somewhat veiled, and is so interpreted by its author, the monstrous doctrine the enormity of which I have been endeavoring to expose. Recognize this doctrine as a principle in our Government and rebellion will cease to be an individual crime and treason will be impossible, because the instant you engage in them you become an “alien enemy,” entitled to “belligerent rights,” and can be dealt with only in accordance with the law of nations as a “public enemy.” In this way, sir, I admit that the committee has found the great panacea for all our troubles—the great and “irreversible guarantee against rebellion and treason”—by legalizing them. Wonderful discovery! Yet how plain, how simple! How is Columbus outstripped in teaching his wondering admirers how to set an egg on end!
What, think you, would our revolutionary fathers, who said that levying war against the United States was treason to be punished by the municipal law, think if they should rise from their graves to find what fools they are discovered to have been? “Angels and ministers of grace,” spirits of Washington, Jefferson, Madison, and Hamilton, “defend us” from such heresy!
I, sir, am neither misrepresenting the principles of this bill nor placing a false construction upon this doctrine. It is the one leading idea which has been persistently pressed by the gentleman from Pennsylvania [Mr. Stevens] in connection with every measure which has been introduced looking to a restoration of the Union. It is the construction which he gives to this bill, of which he himself is the author. It is the principle further presented by him in the following section of the bill offered by him to the House on yesterday:
Sec. 6. All persons who held office, either civil or military, under the government called the “confederate States of America,” or who swore allegiance to said government, are hereby declared to have forfeited their citizenship and to have renounced their allegiance to the United States, and shall not be entitled to exercise the elective franchise until five years after they shall have filed their intention or desire to be reinvested with the right of citizenship, and shall swear allegiance to the United States and renounce allegiance to all other governments or pretended governments, the said application to be filed and oath taken in the same courts that are authorized by law to naturalize foreigners.
“Forfeited their citizenship”; not citizens, then aliens. Citizens only can be punished for treason. Jeff. Davis “held office under and swore allegiance to the so-called confederate States of America”; hence Jeff. Davis is an alien, and hence he cannot be tried and punished for treason against the United States. Let us pause, sir, before we make this leap.
Sir, this is a subject which deserves the most careful and serious consideration of this Congress and of the country. It is a subject which should be approached and considered by all in no party spirit, but in the spirit of true and unbiased statesmanship and patriotism, and with a view to its bearing upon generations—millions of American citizens—yet unborn, and upon the future prosperity, security, and happiness of our entire common country. I have examined the plan (if plan it may be called) of reconstruction submitted by the committee, with a mind, I think, divested of prejudice and with the permanent welfare of my country only in view, and I am unable to give the plan my support, believing, for the reasons stated, that if adopted it would be productive of more evil than good. It is probably not my place to suggest or offer any plan further than has been indicated in the remarks I have made in opposition to the one proposed. I am prepared, however, to support any plan which promises a restoration of the Union upon principles which promise security to the country and do justice to the downtrodden and long overrun loyalists of the South, and which do not render treason impossible by simply legalizing it. I could even support this bill, not, however, as an ultimatum, if this monstrous doctrine was expunged from it; for though I would not make the reconstruction of the Government of the United States a condition for the restoration of the Union, I would be willing for restoration to take place either with or without the other conditions contained in this bill, the essentials of loyalty, properly organized constituency, &c., being complied with.
If the State governments, organized under the auspices of the President, are to be accepted as legitimate—and which is necessarily to be inferred from the action of the committee, because they do not, after six months’ investigation, propose any change—then let us say so, and let the country so understand it. If they are not to be accepted as legitimate, then let the committee recommend what changes shall be made and how, and I venture it will be done. A stroke of his pen and a crack of his whip by the honorable gentleman from Pennsylvania, the chairman of the committee, are all that would be needed. If political power is in the hands of those who should not be its custodians, let us wrest it from them. If disloyalty to the United States is made honorable and loyalty made odious, let us reverse the order of things, and let us meet the issue fairly, and do it without any indirection, that the country and the world may know what we intend and why we intend it. If we have to appeal to the law of necessity to accomplish our purposes, let us do it. If those purposes are legitimate, are necessary for our present peace and future security and happiness, the country and the world will approve and justify it. I need not tell you, sir, that it is time Congress had a practicable policy before the country. The eyes of the world are on us, and the historian pauses with ink-dipped pen. What shall he write—that the virtue, intelligence, and patriotism of the American people have triumphed, or that a great people, powerful in war, united by disaster, have failed in the hour of triumph, have proved themselves incapable of securing the blessings and reaping the fruits of victory? Heaven save my country!
U.S. Constitution, Fourteenth Amendment
July 9, 1868
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, 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.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.