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And again, had not the loyal citizens of those States a right to claim that they were citizens of the United States and entitled to protection under the Constitution, as did the inhabitants of Rome by claiming that they were Roman citizens?
In Vattel's Law of Nations, page 6, it is laid
Finally, the contest was by wager of battle decided against the rebels. In 7 Casey's Pennsylvania Reports, 334, Hill et al. vs. Éply, it is laid down:
"If a nation is obliged to preserve itself, it is no less obliged carefully to preserve all its members, The nation owes this to itself, since the loss even of one of its members weakens it and is injurious to its preservation. It owes this also to the members in particular in consequence of the very act of association; for those who compose a nation are united for their defense and common advantage, and none can justly be deprived of this union and of the advantages he expects to derive from it while he on his side fulfills the conditions."
And the same author on the same page further says:
The body of a nation cannot, then, abandon a province, a town, or even a single individual who is a part of it, unless compelled to it by necessity, or indispensably obliged to it by the strongest reasons founded on the public safety."
It cannot be denied that East Tennessee had during the rebellion a large number of loyal citizens. Mr. Lincoln, in his message to Congress on the 3d day of December, 1861, stated:
"I deem it important that the large region of East Tennessee and western North be
with Kentucky and other faithful parts of the Union
On the 4th of May, 1864, the House passed a bill authorizing the President to appoint in each State in rebellion a provisional governor, with the pay and emoluments of a brigadier general, to be charged with the civil administration until a State government therein shall be recognized, and prior to that time, to wit, on the 20th of January, 1864, President Lincoln ordered an election to be held in Arkansas for Governor, &c.; thus showing that neither the action of Congress nor President Lincoln had any tendency to treat the rebel States as out of the Union or annihilated as States, but on the contrary shows the very opposite.
President Johnson, in his annual message of the 4th of December last, says:
"The perpetuity of the Constitution brings with it perpetuity of the States; thus mutual relations make us what we are; and in our political system their connection is indissoluble. The whole cannot exist without the parts, nor the parts without the whole. So long as the Constitution of the United States endures the States will endure; the destruction of one is the destruction of the other; the preservation of the one is the preservation of the other."
But it is said by my colleague [Mr. STEVENS] that "on the ground of estoppel the United States have a clear right to elect to adjudge them out of the Union;" that "they are estopped both by matter of record and matter in pais."
And my able colleague, [Mr. BROOMALL,] in his speech of the 26th of January, says, in speaking of the rebel States:
"Having set up an independent government and waged war as a nation, they are estopped from pleading the right of citizenship to defeat the right of conquest.'
If the latter gentleman's doctrine is tenable, then those residing in what are denominated the rebel States are no longer citizens of the United States, and consequently not amenable to her laws, and in that event all laws of Congress passed to punish rebels would be nugatory.
But how do the records stand in regard to estoppel? It is true that the so-called southern confederacy adopted a constitution and passed laws, claiming to be independent of the United States, and at the same time the United States Congress passed stringent laws which denied that those States were separated from the United States, and inflicted upon them severe penalties for their treason. So as regards matter of record the United States would be estopped from treating these States as out of the Union, as well as the rebel States would be by having asserted they were out. Then as to matter in pais. The United States asserted that those rebel States had not dissolved their connection with the Union, while the rebels on the other hand asserted they had. So as to matter in pais, they would be equally estopped.
"If no one be misled to his hurt he will not be estopped."
Also, in 12 Casey, 522, Brubaker vs. Oakes, it is ruled that
"It is essential to an estoppel by matter in pais, that he who sets it up is bound to show that he has been misled to his hurt."
And in 3 Hill, 215, Dezell vs. Odel, it is laid down that to make an estoppel effectual it must show that the party made an admission clearly inconsistent with the evidence proposed to be given, and that the other party has acted upon that admission. The United States were not misled, for the actions of the rebels were well known, and both parties acted with full knowledge, and as already indicated, were on an equality as to matter of record. So that upon no legal principle are the rules of estoppel applicable as contended by my two colleagues.
Mr. Speaker, it has been said that if the States lately in rebellion were only put in abeyance during the war, then at its termination they were restored to all the rights they possessed prior to the rebellion, and the President had no right to direct provisional governors to call a convention to amend or form a constitution different from the mode designated in the constitution in force at the break
portion of the community being prohibited from voting,) and under that constitution the present members of Congress from that State were elected and now have seats in this House. Tennessee also adopted a constitution in a similar manner. But it has been said that the citizens did not all vote on these questions, that. some of them were not allowed that right.
If they committed such acts as to deprive themselves of the right of suffrage it was a fault of their own, or if those who had a right neglected to vote it would not invalidate a constitution which had a majority of those who did vote. All that is required when a matter is submitted to the people for their ratification is a majority of the votes polled. The Constitution of the United States provides that in order to make an amendment thereto valid it must pass Congress by a vote of two thirds of both Houses, and be ratified by the Legislatures of three fourths of the several States, or by convention in three fourths thereof, so that in such an important amendment as that abolishing the system of slavery we cannot afford to theorize as to States being out of the Union or losing their status as States, for there is no telling what the United States Supreme Court, as now or shall hereafter be constituted, may decide in regard to the States lately in rebellion, and if there should not be a ratification by three fourths of the entire number of States, (including those lately in rebellion,) and it should be determined that in consequence thereof the amendment abolishing slavery was invalid, then all the lives and treasure sacrificed to eradicate from this Republic that accursed system which brought upon the nation so much misery would be of no avail. But the Secretary of State, that far-seeing statesman, (Mr. Seward,) who through the four years of terrible conflict managed the affairs of state so ably and kept us out of foreign wars, provided for the contingency so as to avoid all cavil. That gentleman, in his published certificate in form of proclamation of the 18th of December, 1865, recites the amendments, to wit:
ing out of the war. And the honorable gen-
And then proceeds as follows:
Now, owing to the rebellion, great changes had taken place. As a war necessity, slaves had by proclamation been declared to be freed, and the fourth section of the fourth article of the Constitution of the United States requires that the United States shall guaranty to every State in the Union a republican form of government, and in order to carry out that injunction it was indispensable that a change of the constitution should be made, and the Government had a right to demand it in order that the civil laws, which had to give way to the military, could be revived. And as to the mode of altering the constitution, though the old one points out a method by which amend- "And whereas it appears from official documents ments or alterations may be made, still that on file in this Department that the amendment to the Constitution of the United States, proposed as does not prevent the calling of a convention aforesaid, has been ratified by the Legislatures of the to adopt a new constitution or change the States of Illinois, Rhode Island, Michigan, Maryformer, subject to the ratification of the legal land. New York, West Virginia, Maine, Kansas, Masvoters. That is a right which the sovereign hence may as often as they choose, by conpeople of each State never parted with, and vention, change their constitution so as not to be incompatible with that of the United States. The Legislature, without a convention, can make alterations only in the way prescribed by the constitution; but as I have already said, that is no bar to a change made through a convention, subject to the ratification of the voters; and for this procedure we have a case directly in point in regard to the State of Missouri. Article twelve of the constitution of the 10th of July, 1820-under which it became a State-provides that
"The General Assemby may at any time prepare such amendments to this constitution as two thirds of each House shall deem expedient, which shall be published in all the newspapers printed in the State three several times, at least twelve months before the next general election, and if, at the first session of the General Assembly after such general election, two thirds of each House shall by yeas and nays ratify such proposed amendments, they shall be valid to all intents and purposes as part of this constitution: Provided, That such proposed amendment shall be read on three several days in each House as well when the same are proposed as when they are finally,
Yet, notwithstanding this prescribed mode of amendment, the Legislature of that State passed, in the year 1865, a law calling a convention which continued in session a few weeks and adopted a constitution which was submitted to the people for ratification, (the disloyal
"SEC. 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.
"SEC. 2. Congress shall have power to enforce this article by appropriate legislation."
It will be seen, Mr. Speaker, that seven of the above-named States that ratified said amendment had been with what was called the "southern confederacy." Surely it would not do for us now to say that the States so ratifying the amendment are not States within the Union. I might add that the Legislatures of California and New Jersey have since also ratified the amendment, while those of Kentucky and Delaware persistently refuse.
Mr. Speaker, we have heard on this floor, portrayed with zeal and eloquence, the barbarities committed by the rebels upon the Union soldiers, and the desecration of our dead, yea, even the murder of our venerable President. Now, sir, if it would restore to us again our much-esteemed President; to the bereaved parents, their sons; to the widow, her
stitution each State has a right to regulate the
husband; to the orphan children, their fathers and protectors who fell in defense of this Republic; to the maimed their amputated limbs, and restore to health the shattered constitutions of our surviving soldiers, I would be willing-if the Constitution would allow it-to see the rebel States annihilated.
But that restoration cannot be had; our noble dead must sleep until the sound of Gabriel's trumpet. Though there are no marks to designate the resting-place of some, yet their noble deeds will be engraven upon the hearts of a grateful nation; while those who fell fighting to destroy our free institutions, if not totally forgotten, will only be remembered as rebels and traitors, and not as the honorable gentleman from New York [Mr. RAYMOND] said, in comparing them to our dead, "The dead of the contending hosts sleep beneath the soil of a common country under the common flag; their hostilities are hushed, and they are the dead of the nation forevermore." Sir, those who were trying to take the heart's blood of the nation deserve no such eulogy. Again, it has been asked, "How long may this nation survive with Senators elected by rebel Legislatures, or by treaties made by Senators chosen by rebel States?''
This, Mr. Speaker, is rather a patriotic appeal; but if the Senate and House of Representatives stand firm there will be no danger of such getting seats in either branch.
The sixth section of the third article of the Constitution of the United States provides that
'Each House shall be the judge of the election, returns, and qualifications of its members."
We must not look at these questions as an advocate employed for his client, nor let our feelings betray our judgment, but view them
Mr. Speaker, we have been repeatedly told on this floor that we ought to be cautious about admitting Representatives from the States lately in rebellion, but no particular plan for their admission has been clearly defined.
It seems to me that if Congress would submit to the respective States a few important amendments to the Constitution of the United States, they would be ratified, and all this complication avoided. It would have been better if this course had been pursued immediately after the assembling of the present Congress. The framers of the Constitution contemplated that the time might arrive when amendments would be necessary, and therefore provided a method for its accomplishment. It would be strange if, after a period of upward of seventy years in this progressive age, amendments would not be found necessary; though I think they ought to be as few as practicable.
Yet I do not agree with the honorable gentleman from New York, [Mr. RAYMOND,] who, in speaking of the Constitution, says he looks upon all propositions for its amendment with hesitation and distrust." How any statesman can "hesitate and distrust" about the practicability of amending the Constitution to correspond with the times and circumstances I cannot imagine. Then, Mr. Speaker, I would propose: first, that the Representatives in Congress shall be apportioned among the sev eral States according to the number of qualified voters in each State. Secondly, that neither of the States of the Union shall ever assume or pay any part of the debt of the so-called confederate States of America, or of any State contracted in carrying on war against the United States; and, thirdly, that the Constitution be amended by striking out that clause which
According to the estimate of my colleague, [Mr. STEVENS,] a small tax on exportation of cotton alone would amount to $100,000,000 annually-a sum which would do much toward paying off our war debt. It is not likely it would be laid on any other product. These
are all the amendments I deem necessary. There can be no doubt that under the Con
"It is for you, fellow-citizens of the House of Representatives to judge, each of you for yourselves, of the election, returns, and qualifications of your own members."
I have not time to review all the arguments from the Democratic side of this House, but if the gentlemen from New Jersey [Mr. ROGERS] and the late member from Indiana (Mr. Voorhees) express the views of their party, they would be willing to admit to seats on this floor rebels whose hands have been stained with the blood of our Union soldiers.
If we were to determine that the States lately
loyalty they will have no hesitation through
Republic, (and even there I am sorry to have to say that some were to be found sympathizing with treason,) but in the rebellious States it required the nerve of a Socrates to be loyal to his country where his personal liberty, life, property, and all that is dear to man were in peril. Even Alexander H. Stephens, who for a time so eloquently raised his voice against treason and clung to the horns of the altar of liberty, was, in the hour of trial and temptation, induced by the offer of a vice presidency in the so-called southern confederacy to let go that which he professed to love and revere, and turned his back against his country.
When war was raging it was necessary, for the preservation of the Union and to weaken the hands of the enemies of the Republic, to devastate the country in possession of the insurgents; but as the rebellion is now ended, it is the duty of the nation to foster and build it up; and by proper encouragement, with the blessings of free labor, evidenced by true loy||alty, those States will exhibit in a few years one of the brightest spots in this Republic. My distinguished colleague, [Mr. WILLIAMS,] in speaking of the States lately in rebellion, says:
"Eleven of the columnar supports of our political edifice are now lying around us, like the grand columns of Tadmor and Palmyra, with shaft and capital and architrave alike shattered by the mighty convulsion that has laid them all in ruins.
Where is the hand that is to lift these columns to their place?"
Mr. Speaker, though the metaphor is beautiful, I do not agree with the honorable gentleman that eleven of the States of this Union are
lying around "like the grand columns of Tadmor and Palmyra." The shock, it is true, was great, but they stood erect in the storm like the mighty oak of the forest, but came out somewhat scarred. But the leaders who caused this terrible conflict deserve condign punishment. The Government officials deserve great credit for causing the arrest, trial, and execution of Wirz, barbarities to the Union prisoners deserved who was proved to be a monster, and for his no better fate than that which was meted out to him; still he was but a subordinate, and it is not right that the chief officers should escape punishment. I agree with what was said by an eminent judge in my State, that "the greater the man, the greater the example."
Treason ought to be made odious, and there should be no procrastination in the trial of such offenders; the leading spirits should be the first brought to justice, and it is hoped that that part of the last annual message of President Johnson, in which he says—
"It is manifest that treason, most flagrant in character, has been committed. Persons who are charged with its commission should have fair and impartial trials in the highest civil tribunals of the country, in order that the Constitution and the laws may be fully vindicated; the truth clearly established and affirmed that treason is a crime, that traitors should be punished, and the offense made odious"
It is true a bitter feeling has prevailed against some of the rebel States for their treasonable course, and especially South Carolina, and that is not to be wondered at when we take into consideration the unparalleled misery they have brought upon the country; but it is hoped they have repented in sackcloth and ashes, and, as some evidence of that, we find even South Carolina ratifying the amendment abolishing their favorite institution of slavery, while Kentucky and Delaware, professing to be loyal States, refuse. I trust, Mr. Speaker, that the two Houses of Congress will see the vast importance of having the requisite amendments to the Constitution speedily passed and submitted to the States for ratification. Then, after being ratified by the Legislatures of three fourths of the States, without fear of not being able to carry out the injunction of guarantying to every State in this Union a republican form of government, Representatives from those States lately in rebellion who can take the oath prescribed by existing laws can be admitted to seats in Congress; and it is due to such men as Maynard, Colonel Stokes, Colonel Hawkins, Arnell, Fowler, and others, who, in the nation's struggle, stood up for right and freedom, to be cared for. It was easy to be a Union man in the loyal States, surrounded by friends of the
Now, Mr. Speaker, though I differ somewhat with some of our leading members of the Republican party in this House as to the status of the States lately in rebellion, I agree with them that none but true, loyal Representatives ought to be admitted to seats from those States, and that we should have, as a safeguard, proper amendments to the Constitution of the United States.
It is hoped that the joint committee on reconstruction may mature some acceptable plan, which will meet the approbation of both branches of Congress and of the President, for the speedy
may be speedily carried into effect, though I cannot well see why the leading traitors in the rebellion could not have been tried by a military commission as well as Wirz. I look upon John C. Breckinridge as one of the vilest traitors, and I trust an effort will be made to have him arrested, tried, and punished; and I might say that officers who held high military positions under the United States, and with the knowledge acquired as to the position of affairs, turned traitors and joined the rebel army, ought not to be permitted to stalk about the country.
adjustment of the perplexed questions that now agitate the country. I do not agree with the honorable gentleman from New York, [Mr. RAYMOND,] that we do not get much information from that committee. It is composed of gentlemen of strict integrity, and experienced statesmen, who have been laboring assiduously to procure all the information possible to lay before Congress, and, when a full report is made, will no doubt give us definite information as to the situation of affairs in the States lately in rebellion, and be of great importance to the whole country. I would here remark that the honorable chairman of the committee, (my colleague,) who has already passed the period of life usually assigned to man, for his devotion to and toil in behalf of his country deserves great credit; and I pray that his life may be spared until the great questions that now so much interest the nation may be adjusted so that all the States can be represented in the councils of the nation.
action. And however much that committee may have been abused by the whole copperhead press of the country, and arraigned by the President as an "irresponsible directory,' I can see nothing either in the material of which it is formed or the duties which have been assigned them by the Senate and the House that detracts either from the conclusions at which they arrive or the right they have in exercising the powers allotted to them. Acting on behalf of the Senate and the House, they act as any other committee, clothed with such powers only as the Senate and the House see fit to give them. Their conclusions, and the facts upon which their judgment is based, must be submitted to the Congress for its ratification or rejection. How it can be looked upon or called “irresponsible," when it must render an account to the country for its conduct, is hard for me to comprehend. That it can be likened to a "directory," when it has no power of its own, and when its resolutions are feeble and lifeless except they receive the assent of Congress, is still more difficult for me to understand.
If, Mr. Speaker, this great Republic, now extending from the St. Lawrence to the Gulf of Mexico, and from the Atlantic to the Pacific ocean, and from which the dark stain of slavery has been eradicated, and the Gospel, education, and civil rights extended to all classes, with a Constitution which, according to the language of Chief Justice Marshall, in Cohens vs. Virginia, (6 Wheaton, 387,) is formed for ages to come, and is designed to approach immortality as near as human institutions can approach it; and if the citizens are true and loyal, and put their trust in Him who holds in His hands the destinies of nations, this Republic will endure as a shining light until the end of time, showing to the world that man is capable of selfgovernment, and that this is truly "the land of the free and home of the brave."
Mr. J. L. THOMAS. Mr. Speaker, the great question of reconstruction and the collateral issues properly belonging to it have been agitating this country in some form or another since the first session of the ThirtyEighth Congress.
The rebellion which has been so gloriously crushed out has devolved upon us the solemn duty of dealing with its results in such a manner as that a permanent peace shall be secured and a lasting adjustment of all the irritating causes that produced it, shall be forever put at rest. I, for one, have made up my mind what course I shall pursue, and "with malice toward none, with charity for all, with determination to do the right as God giveth me to see the right"—to advocate and support such principles as will reconstruct the States lately in rebellion on a sure and loyal foundation, and that treason will never again lift its bloody hand to strike down the bulwarks of the Constitution.
Differences have arisen among us as to how this can best be done. Loyal, patriotic, honest men have spoken on the subject, and while some of them differ as to the details, and others as to mere abstract questions and theoretic views of "State suicide," we all agree on one point, and that is, that no rebellious State shall be represented on this floor until her people show such unmistakable proofs of repentance and loyalty for the future as will warrant us in believing that "the Republic can receive no detriment" at the hands of its former assailants.
The committee on reconstruction, to whom this House, by the unanimous vote of the majority, intrusted the investigation of the condition of the rebel States, have not as yet reported that any of them are in a condition to be represented here, with the exception of the State of Tennessee. That committee, composed as it is of some of the best and most patriotic members of this body, is entitled to our highest consideration and respect, and would not, I am sure, abuse the trust that has been placed in their hands. The fact that they have not yet reported that any of these States, except the State of Tennessee, are in a condition to be represented is a strong argument to my mind why we should not be precipitate in our
The joint resolution empowering that committee to act was passed on the 4th day of December last, and received the support and the vote of some of the very men whom we find to-day denouncing it as a usurpation. When it went out to the world no one saw in it anything but a legitimate exercise of the powers of Congress, and the President himself, so far as I am aware, did not say a word in opposition
The Constitution says that "each House shall be the judge of the election, qualification, and returns of its own members." It nowhere says that each House shall separately, for itself, do this, nor that it shall not be done by the concurrent action of each House. Each House can act separately for itself, and in all questions touching the elections, &c., of the members of each House, the practice heretofore in ordinary cases has been for each House to act without the concurrence of the other.
But the question involved in the admission of the Senators and Representatives of the lately rebellious States was and is not a mere question of qualification, election, and return of its members, but goes to the fundamental principles of the status and organization of the people and the State governments of the States asking for the admission of their Senators and Representatives.
The Constitution says that "each House may determine the rules of its own proceedings." (Article one, section five.) Does this prevent the Congress from making joint rules, to be binding on both? On the contrary, has it not been the practice for each House, by concurrent action, to make joint rules, not only to facilitate public business, but to make their action uniform and harmonious? And if there ever was a case presented where neither House should act without the concurrence of the other it is in the mode and manner of dealing with the representation from these States. If each House should act for itself we might have the strange anomaly of the people being represented in one branch and the States unrepresented in another, or vice versa.
Again, the Constitution says that
"The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for the electors of the most numerous branch of the State Legislature."-Art. 1, Sec. 2.
population, for example-will any one affirm that we would not have the power to ascertain who and what these electors were; and if they were not what the Constitution says they shall be, to refuse to admit them? And the same may be said as to the power of the Senate in relation to the States.
Will any one tell me that the House has not the power to inquire and ascertain whether a man sent here to represent the people was in fact elected by the electors having the qualifications requisite for the most numerous branch of the State Legislatures? Suppose a man should present himself with his credentials, bearing the broad seal of his State, certifying that he was duly elected, and it should turn out that he was not elected by the qualified electors of the most numerous branch of the State Legislature, but by a portion of the people not qualified as such an elector-a negro
And yet when Congress passes a joint resolution appointing a joint committee whose duty is to inquire into the condition of eleven States, the majority of whose people have for the past four years been in armed and wicked rebellion against the Government, and to report whether any of these States are entitled to be represented because of their treason, it is denounced as a crime, and held up to the world as a monstrous outrage and a vile usurpation.
Sir, if it be an outrage for me to refuse to admit to my house a man coming from a locality infected with some loathsome, contagious disease until I am satisfied I can do it without running any risks or hazards of my life, or to the life of the inmates of my house, then it is monstrous in me to refuse men admission here, coming from disloyal constituencies, until I am satisfied their admission will not endanger the life of the Republic. This unseemly haste on the part of these States to come back into Congress on their terms is only equalled by their precipitate action in leaving these Halls in 1861 to join in breaking up by force of arms what they would tear down to-morrow by political trickery if you but give them the opportunity and the power.
While I am as desirous as any man that the States unrepresented should have their delegates participate with us in our deliberations, I am at the same time sensible of a duty that I owe to my country and to such of the loyal masses of the South as stood true to the Union in its hour of peril, that is paramount to any courtesy that I might be willing to extend to them.
Sir, the smoke of the great revolution through which we have just emerged has not yet sufficiently passed away to allow us to discern clearly the prospects or hopes of the future. For myself, as I never entertained a doubt during the long and dreary night that for nearly five years hung like a death-pall over our country, that the rebellion would be finally crushed out, and traitors made to feel the enormity of their guilt, so to-day, if I feel a sad disappointment that they have not met that doom that their treason entitled them to receive, I have an abiding confidence in the devotion and patriotism of the loyal masses of the people that they will never allow these rebels, who have forfeited everything by their rebellion, to dictate the terms upon which they shall resume their relationship to the Government. They are either to be consulted as to what conditions will best please them, or we are to make known to them upon what terms we please to receive them. We are either to consent that such men as they select shall be our peers in this House, or we are to tell them what character of peers they shall send here. We are either to exact no guarantees for future security, or we are to impose such guarantees as Congress in its wisdom may deem best for the public good.
I hold that treason is the same, whether it be committed by an aggregate of individuals, or by but one individual. It is levying war against the United States; giving aid and comfort to its enemies. When an aggregate of individuals commit treason, they are as liable to pay its penalty as any single individual would be. If any person in a State commits treason, and you have the power to prescribe the conditions upon which he shall be pardoned, (which the President has done, both by his amnesty proclamation and the thousands of pardons he has granted,) then you have the power as a Congress to say to these same men, "Before you shall be allowed to exercise your functions as States, you shall first comply with certain conditions, which we deem to be necessary before we can allow you to resume all your rights as members of a State."
which the rebellion did not and could not destroy. Then all the acts done by these provisional governors are illegal and void, and without warrant of law, either under the Copstitution or the laws of nations.
It appears to me, sir, that a strange confusion of ideas has taken place in the discussion of this question. A State is confounded with the government of the State. A State cannot go out of the Union unless by successful revolution it succeeds in a separate, independent nationality, acknowledged as such by the world. Secession ordinances cannot carry a State out of the Union, because if they could, every State that attempted to secede would to-day be out of the Union. But the government of a State can become usurped and so utterly destroyed as to require not only remodeling but an entire new frame work.
The Constitution says the United States shall guaranty to each State a republican form of government. At the end of the rebellion we found that the insurgents had erected insurrectionary governments that were in the hands of traitors, and that were not only not republican, but that were usurpations and tyrannies. We found that the rebels in arms had seized hold of the political machinery of the States, and had not only carried them into rebellion, but had linked their fortunes to a pretended and revolutionary confederacy, which they acknowledged, and to which they had all sworn allegiance.
We found that men who were true in their loyalty to this Government were hunted down like dogs and treated like beasts; their property confiscated their homesteads desolated, their wives and children forced away from them because of their loyalty. We found all this, and more which I shall not stop to recount, and which history will blush to record.
This being the case, the question is, not whether the States that went into rebellion were ever out of the Union, not whether by their ordinances of secession they succeeded in doing what their ordinances proclaimed to the world, but whether the State governments we found in existence at the time the combined armies of the confederacy surrendered to Grant were the legitimate State governments recognized by the Constitution, and republican in form, or were usurpations, presided over by traitors to their country.
It cannot be contended for a moment that the State governments found in existence in April, 1865, were the same State governments that existed prior to 1861. Not only is this not so, in relation to the functionaries representing these State governments, such as Governors, judges, and members of the Legislature, but in many, if not all of them, their State constitutions had been changed in order to meet the new obligations which they had contracted in attaching themselves to the rebel usurpation. Were these State governments legal or illegal; were they constitutional or unconstitutional; were they republican or anti-republican? If they are legal, constitutional, and republican, then were their ordinances of secession legal, constitutional, and republican? If, on the other hand, their ordinances of secession are and were void, then their State governments made under their ordinances of secession are void. The one follows as the necessary consequence of the other. This being the case, their secession ordinances being void, and all their State governments in existence during the rebellion being in like manner void and usurpations, we are forced to come to one of two conclusions, either that the State governments in existence in 1861 and prior to the rebellion, are in existence now, unchanged, with all of their rights and immunities, in as full and ample a manner as they possessed them at that time, or the rebel usurpations which continued in these States for four years, and which have been overthrown by force of arms, are still in existence, or the new State gov ernments, created by provisional governors appointed by the President, are in existence. If the first be the case-that is, if these State Governments have had an existence all through the rebellion just as though no rebellion had happened then there is no obligation, no condition that either Congress or the Executive, either as a war measure or in any other respect, can impose upon these States. Then neither Congress nor the Executive have any right to say, you shall first adopt the amendment to abolish slavery, and repudiate the doctrine of secession, and as a condition-precedent before their admission to representation in Congress. Then neither the President nor Congress has any fight to say that before any of their Representatives shall be admitted here they shall first be loyal, and then take an oath of loyalty. If this be true, then neither Mr. Lincoln nor Mr. Johnson had any right to appoint provisional governors of States whose machinery of government was already in existence, and
Suppose, sir, for illustration, that the rebels in my own State had succeeded in 1861 in passing an ordinance of secession and forcing the loyal Governor of Maryland either to leave the State or to vacate the functions of his office; suppose, in place of the State government then in existence, they had elected another Governor, Legislature, and judiciary-all of them sworn to support the upstart and usurping confederacy; suppose this State government so organized had waged war against the United States for four years, and at the end of that time was compelled by force of arms to submit to the power against whom it had rebelled, in what condition would my State have been, and what would have been the duty and the obligations of this Government to the loyal Union men of Maryland who refused to take part in the usurpation, and who never yielded a voluntary support to the confederacy?
To be sure the boundaries of the State would have remained the same as they do now. Its geography would not have been changed, and possibly its name would have been allowed to exist. But suppose one portion of the people, acting under the constitution of the State as it existed prior to 1861, had elected Representatives and Senators, and suppose another portion of the people had elected Senators and Representatives in accordance with the laws made during the four years it was in rebellion, and that still another portion had elected Senators and Representatives in accordance with a constitution and laws made and enacted under and by virtue of a convention called into being by a provisional governor appointed by the President as Commander-in-Chief of the Army, which State government would you recognize, and which set of Representatives would you admit, and where would the power reside as to which was the State government and who its Representatives? If you say you would recognize the State governments in existance prior to 1861, then how can you reconcile the fact that the State governments organized in all of the lately rebellious States are to-day the creatures and creations of the conjoint action of the President of the United States by the appointment of provisional governors, on the one part, and the people of these States, acting by permission of the provisional governors, on the other.
If it be said that this cannot be done, that the State governments as they existed in 1860 were usurped, then I want to know if you intend to acknowledge the rebel usurpations carried on for over four years in spite of the Constitution, and in spite of the armies and the Navy of the United States which finally ground them to powder. If you will not, as you cannot and dare not, acknowledge the rebel usurpations, then the question is presented, are the State governments as at present organized in the lately rebellious States, so organized on such principles of justice and loyalty as to warrant the people of the United States to reinvest them with all the rights and privileges of States in as full and ample a manner as they were possessed by them prior to the time when they went into rebellion?
In the discussion of this question, Mr. Speaker, I do not intend to allow myself to be drawn
into a consideration of abstract questions, which when fully exhausted and finally answered bring us no nearer to the point we are trying to reach than when we started.
For this reason I do not intend to assume, as many have who have preceded me, either the right of a State to secede, or whether the rebel States did secede, or whether they have ever been out of the Union, or whether they are Territories. It is enough for me to know that they have been in rebellion; that during that rebellion their State governments ceased to have any relations (except as enemies) with the people of the United States; that certain conse quences followed from their rebellion-one the subversion or overthrow of their State governments, the other a suspension of the representation in Congress.
I claim, sir, that it is for Congress to decide not only whether these State governments having been once subverted, have been again reconstructed, but to examine and see how they have been reconstructed, and whether they have been so reconstructed as to entitle them to representation here. In the language of the lamented Lincoln
"Let us all join in doing the acts necessary to restoring the proper practical relations between these States and the Union, and each forever after innocently indulge his own opinion whether, in doing the acts, he brought the States from without into the Union, or only gave them proper assistance, they never having been out of it."
That we are all desirous of doing this I am satisfied. That it ought to be done quickly, but with a view to secure future peace and security, both to them and to us, I am persuaded. So far as the constitutional power of Congress over this whole matter is concerned, I am convinced it is ample and exclusive. The President, as Commander-in-Chief of the Army and the Navy, has the power to erect military provisional governments as temporary expedients for peace and quiet. But these provisional governments only proved two things: first, that the old State governments had been subverted or destroyed; and second, that having been destroyed, some expedient must be resorted to to make a new one. The power of Congress commenced where that of the President ceased. His power ceased when he withdrew his provisional governors. The power of Congress commenced when called upon to recognize the Senators and Representatives of the newlyreconstructed State governments.
That this power is in Congress, and exclusively in Congress, I shall read a short passage from the decision of the Supreme Court of the United States in the case of Luther vs. Borden, reported in 7 Howard's Supreme Court Reports, at page 10. Say the court:
"The fourth section of the fourth article of the Con
stitution of the United States provides that Congress shall guaranty to every State in the Union a republican form of government." *
"Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guaranty to every State a republican government, Congress must necessarily decide what government is established in a State before it can determine whether it is republican or not.
And when the Senators and Representatives of a State are admitted"
I desire gentlemen to pay their particular attention to this
"into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority."
What stronger authority could you have, as to the meaning of the guarantee clause and of the duties and powers of Congress under it than this? And what better vindication could we desire, as to our refusal to admit these Senators and Representatives from the rebel States until their condition has been inquired into and the form of government they have made has been ascertained, than the announcement made in this case, that when the Senators and Representatives are admitted into the councils of the Union the authority under which they are appointed is not only recognized, but the republican character of their State governments is at once and forever acknowledged?
resides in the Congress of the United States. By assuming the first, the States that went into rebellion would have the right to build up kind of a government as a State organizaany tion, and provided it owed allegiance to the Constitution of the United States it would be entitled to be recognized as such and to have its representation in this House. More than this, the States that went into rebellion not only did not need any provisional or military governments to aid them in building up new governments after the fall of the confederacy, but by simply surrendering, after they were compelled to surrender, and yielding obedience to the laws of the United States, after they were forced to do so, they had the right co instanti to resume their former position in the Union, and to have all the original rights exercised by them before they went into rebellion.
Acting on this theory, at the first session of the Thirty-Eighth Congress a joint_resolution was passed declaring that no State declared to be in rebellion by the proclamation of the President shall be entitled to appoint electors for President and Vice President until both Houses of Congress by concurrent action shall have recognized a State government in such State.
This theory of reconstruction is not therefore a new one, made by this Congress to keep the rebellious States from participating in legislation, but has been solemnly decided by the Supreme Court of the United State as a power vested exclusively in Congress, and one that no coördinate branch of this Government has the right to interfere with.
And, sir, the world will be surprised to know that both Mr. Seward and the President held to this doctrine, and so instructed some of the provisional governors of the so-called reconstructed States.
In answer to a letter from Governor Marvin, provisional governor of Florida, Mr. Seward, on the 12th of September, 1865, thus speaks: DEPARTMENT OF STATE, WASHINGTON, September 12, 1865.
SIR: Your Excellency's letter of the 29th ultimo, with the accompanying proclamation, has been received and submitted to the President. The steps to which it refers toward reorganizing the government of Florida seem to be in the main judicious, and good results from them may be hoped for. The presumption to which the proclamation refers, however, in favor of insurgents who may wish to vote and who may have applied for but not received their pardons, is not exactly approved. All applications for pardon will be duly considered and will be disposed of as soon as may be practicable. It must, however, be distinctly understood that the restoration to which your proclamation refers will be subject to the decision of Congress.
I have the honor to be your Excellency's obedient servant, WILLIAM H. SEWARD. His Excellency WILLIAM MARVIN, Provisional Governor of the State of Florida, Tallahassee.
What did the Secretary mean, when he said that the restoration to which the Governor's proclamation referred "will be subject to the decision of Congress," if it was not that to Congress attached the duty, the power, and the responsibility of deciding how and when that restoration was complete, final, and satisfactory?
Again, in a dispatch dated July 24, 1865, Mr. Seward, by order of the President, sends the following telegram to Governor Sharkey, of Mississippi:
WASHINGTON, July 24, 1865. W. L.SHARKEY, Provisional Governor of Mississippi: Your telegram of the 21st has been received. The President sees no reason to interfere with General Slocum's proceedings. The government of the State will be provisional only until the civil authorities shall be restored with the approval of Congress. Meanwhile military authority cannot be withdrawn. WILLIAM H. SEWARD.
Has Congress said any more? Could Congress say any more? Which of the civil authorities of any of these States has been restored with the approval of Congress? And yet Mr. Seward undertakes to unite with those who denounce the action of Congress as revolutionary because Congress assumes to do what he says cannot be done except with the approval of Congress. If Congress has not the constitutional power to inquire into and determine the fact whether the governments of these States lately in rebellion have been properly reorganized, I want to know who has that power? Has the President? If he has, where does he find his power? It is clearly not in the Constitution, and it is equally as clear that it is not to be found either in the laws of Congress or in any military power that he possesses as Commander-in-Chief of the Army and Navy. Has the Supreme Court the power to determine this question? It certainly cannot have, since all of its powers are well defined, and, as I have before stated, that tribunal has decided that Congress has the power.
We are driven, then, to one of two conclusions: that there is no power anywhere, in any of the coördinate branches of this Government to judge of or determine upon the reconstruction of these States, or that power belongs to and
I, for one, cannot agree to any such a doctrine, but hold to the only safe rule for the reconstruction of these States, that the power is in Congress to determine when these States shall be entitled to exercise all their proper functions in the Union, and how and on what terms it shall be done. Ay, sir, and that until these terms are complied with they shall remain where they have remained for the last four years, in the Union to be sure, because they had not the power to get out of it; but in the Union, divested of their representation in Congress until the Union masses of this land have so hedged them in by proper guarantees and safeguards for future protection as that they can be safely invested with all the powers of loyal States.
The question then occurs, have the State governments of any of the rebellious States been reconstructed in such a manner as to entitle them to be not only represented in Congress, but to receive all the powers and priv ileges of loyal States?
In answering this question we should consider, first, the status of the people of these States as to their loyalty to the Government; and second, the nature or kind of State gov ernments they have organized, and which we are called upon to recognize.
I take it that no true, devoted friend of his country could wish that any of these States should again aid in controlling the destinics of this nation until the people of the States have shown themselves to be loyal to the Government which they are in part to control. When I use the word loyal in this connection, I do not mean that sturdy, bold, and defiant patriot who, through four years of blood and slaughter, maintained that no State had the right to rebel, and who refused to give a voluntary support to the rebel usurpation; but I take it in its new and amended sense, as a man who did go into rebellion, but who, having taken the amnesty oath, means in good faith to keep it.
In this latter sense I am constrained to say that I do not believe that the vast majority of those who have taken the oath are loyal, because I do not believe, in the language of our patriotic President, that you "trust" them.
That my opinion is not formed from any prejudice, but that it is a conviction based on sworn and legal testimony, I beg leave to refer to the testimony of Hon. John Covode. In one part of it, in answer to a question put to him by the committee, he says:
"I conversed with loyal men from other StatesMississippi, Alabama, &c.-who were then in New Orleans. They expressed a deep interest in having a correct policy inaugurated in Louisiana on account of the effect it would have on their own States. They said that if Louisiana was directed in the right course at the start, from her position and relations to other States, it would go far to produce the best results in several other States. I will here state that many truly loyal men whom I met in New Orleans seemed to lack confidence in their being ultimately protected and supported by the Government; and I was frequently asked, if I became satisfied or convinced that they were to be abandoned to the rule of the rebel element, to notify them in time to enable them to get away, more especially if the troops of the United States were to be withdrawn. They said that if the troops were withdrawn they could not live there. I know many citizens of Louisiana who remained within reach of the military because they did not dare to venture to return to their former homes."
In another part of his testimony the following significant facts are developed:
"Question. Have you a copy of your report to the President?
Answer. I have not a copy of that report. I have at home the rough draft from which the report was made, but not the accompanying papers, as I had no copies made of them. Not being aware that I should be called before this committee to testify I did not bring that rough draft with me to the city.
"Question. Can you state from recollection the substance of the conclusions in your report to the President which you state you made to him?
"Answer. I might be able to state the substance of the conclusions. One of them I recollect distinctly was to this effect: That if the rebel element was allowed to vote in the South every member who would be returned to Congress would be hostile to the policy of the Federal Government, not only as regards payment of the national debt, but in reference to the emancipation of the negroes; that while they expressed a willingness to accede to the principles of the emancipation proclamation, they always coupled with it a determination to regulate their own affairs in that respect, stating that they would have an organized system of negro labor which they would control for themselves. Over and over again, in conversation in New Orleans, I heard them saying that they could make the condition of affairs better for themselves than it was before. They said that Government had freed the negroes and should be made to take care of cripples and those who were not able to work, while they would regulate and control the labor of able-bodied men.
I would here state that while many in the South would say that Government must pay the rebel debt as well as Federal debt, the better and more intelligent class of them did not speak in this way; but they told me distinctly that I could not expect that they would help to pay our debt or pension our soldiers for whipping them; that they would have power in the Government some day, with their increased representation, and would be able to defeat the payment of the interest on the debt or in some other way destroy public credit. I asked them where they expected to get help for that purpose, and they would generally say that there were portions of the North where they had no interest in Government securities -the West, for instance. I found that to be the feeling among the best men who had been in the rebellion that I met at the South. They seemed to take it for granted that we could not expect them, when they should again attain power, to help pay our debts.""
Now, this is the testimony of one of the men sent by the President to ascertain the amount and kind of loyalty there is in the South.
Carl Schurz, also sent by the President to ascertain the feeling of the South, gives the following as his estimate of loyalty:
"I may sum up all I have said in a few words. If nothing were necessary but to restore the machinery of government in the States lately in rebellion in point of form, the movements made to that end by the people of the South might be considered satisfactory. But if it is required that the southern people should also accommodate themselves to the results of the war in point of spirit, those movements fall far short of what must be insisted upon.
"The loyalty of the masses and most of the leaders of the southern people consists in submission to necessity. There is, except in individual instances, an entire absence of that national spirit which forms the basis of true loyalty and patriotism."
He also recommends the President to"Advise Congress to send one or more 'investigating committees' into the southern States to inquire for themselves into the actual condition of things before final action is taken upon the readmission of such States to their representation in the legislative branch of the Government and the withdrawal of the national control from that section of the country."
Generals Terry and Turner and Colonel Brown
"Concur in representing the sentiments of the people of Virginia in relation to the Government as unimproved, and as rather having become embittered since Lee's surrender. They say that at that time the people were humble, sick of war, longing for peace on any terms, and ready to accept gratefully the pardon of the Government, and to submit to any conditions that might be imposed, while now they are arrogant, exacting, and intolerant. Most witnesses of that class express a decided opinion that the withdrawal of the Federal troops and of the Freedmen's Bureau would be followed by an unrelenting proscription of white Unionists and persecution and remission to slavery of the colored people. The change of feeling is very generally ascribed by these witnesses to the President's liberal policy. In regard to the Federal debt, the people of Virginia are represented as in favor of its repudiation, or at least of combining with it the confederate debt. The witnesses who have been connected with the confederacy, however, deny this, and represent the people as willing to pay their share of the Federal debt by taxation. On this subject General Lee's opinion is that they are willing to pay both, and opposed to a repudiation of either."
General Swayne thus testifies before the committee on reconstruction of the amount and kind of loyalty in Alabama. He says:
'After the surrender of Lee a kindly feeling was generally expressed toward the United States, since