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read a third time. The bill was read the third time, and passed; and its title was amended by adding "and for other purposes."

PENSION BUSINESS.

Mr. LANE, of Indiana. I ask that the following order may be entered:

Ordered, That Friday next, after the expiration of the morning hour, be set apart for the consideration of bills and reports from the Committee on Pensions. There is, perhaps, enough business of this kind to occupy an hour or two. It is important that we should dispose of it, and I propose to take next Friday for that purpose.

The order was agreed to.

J. W. GORDON,

Mr. ANTHONY. I move that the Senate proceed to the consideration of Senate bill No. 127.

The motion was agreed to; and the bill (S. No. 127) for the relief of Jonathan W. Gordon, late major in the eleventh regiment of infantry, was read the second time, and considered as in Committee of the Whole. It proposes to direct the Secretary of the Treasury, in settling the accounts of J. W. Gordon, late major in the eleventh regiment of infantry, to allow him a credit of $600 on account of bounties paid enlisted men in accordance with the provisions of the act of July, 1862, but before that act went into effect.

The bill was reported to the Senate without amendment, ordered to be engrossed for a third reading, read the third time, and passed.

ASIATIC CHOLERA.

Mr. CHANDLER. I now move to take up House joint resolution No. 116, to prevent the introduction of cholera into the ports of the United States.

The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution, the question being on the amendment proposed yesterday by Mr. EDMUNDS to the amendment reported by the Committee on Commerce.

Mr. CONNESS. I ask the consent of the honorable Senator from Michigan to let this subject lie over for a little while, that we may call up a bill concerning the Pacific coast which will not occupy a very long time.

Mr. CHANDLER. Will it lead to debate? Mr. CONNESS. I think not at all. This subject of the cholera is a pretty dangerous one, and has proven to be a tedious one in this body, and we should like to be relieved from it a little while this morning with the Senator's permission.

Mr. CHANDLER. I hardly think the resolution will lead to any further debate. I desire simply to ask that the letter which I hold in my hand may be read.

Mr. CONNESS. If the Senator will not consent to my request, of course I shall not persist in it.

Mr. CHANDLER. I think this resolution will be disposed of sooner perhaps than the Senator's bill can be passed. I think there will be no further discussion upon it. I am perfectly willing to adopt the amendment of the Senator from Vermont and dispose of the question in that way. I have no feeling on the subject, but I ask in justice to the physicians and surgeons who were before the Committee on Commerce that the letter which I hold in my hand and now send to the desk may be read.

The Secretary read the following letter: WASHINGTON, D. C., May 11, 1866. DEAR SIR: I have had inserted in the National Intelligencer of this morning a notice correcting a misapprehension that seems to prevail to some extent that the medical committee on "cholera and quarantine," of which I am chairman, was delegated by the American Medical Association. When before the Committee on Commerce I stated that our committee was appointed at a meeting of medical men at Baltimore on the 4th instant, assembled on a call numerously signed by physicians from every part of the United States to petition the Government to adopt a general uniform system of quarantine at all our ports, and the "memorial" presented by Hon. Mr. MORGAN, which was adopted at said meeting, was headed memorial of physicians," and no mention was made of the national convention ex

cept that I stated verbally that those who signed the call of the meeting were members of that body.

It is true that the subject of quarantine and cholera was brought before the convention, and a "plan of quarantine" submitted by Dr. Marsden, of Quebec, and discussed at some length, when the whole matter was postponed till near the close of the session, when it was laid on the table by a vote of 68 to 60, only a little more than one third of the members being present. The question was not decided on the issue of contagion or non-contagion, portability or nonportability, quarantine or no quarantine, but on the expediency of petitioning Congress on the subject. A

very general feeling prevailed in the convention that the medical profession ought not to proffer their advice, and thrust their opinions upon the Government, but wait until their opinions were asked. With this conviction many who believed in the infectious and portable character of cholera moved to lay the matter on the table, especially as at the late hour it was brought up there was no opportunity for a full discussion. In consequence many of those who were not satisfied with this disposal of the matter signed the call for the aforesaid meeting, who adopted the memorial" which has been presented to the Senate. CHARLES A. LEE, M. D., Hon. Mr. CHANDLER. Chairman of Committee. Mr. SUMNER. When the Senator from Vermont [Mr. EDMUNDS] rose yesterday, it may be remembered that I at the same time tried to catch the eye of the Chair. I had intended to say something very much in the sense in which he spoke. I should not have said it so well, and I was not prepared with the authority which he had in his hand, though I had intended to allude to it.

I should not say anything now but for the remarks of my friend from New York [Mr. HARRIS] who seemed so much at a loss where to find the power which it is now proposed to exercise. He was so much at a loss that he went beyond those bounds which he usually prescribes for himself in this Chamber, and indulged in an unwonted levity. Not content with showing, as he supposed, that the power did not exist where it was said to exist, he asked, with a humorous face, whether it was not found under the clause to guaranty a republican form of government. I am very glad to find that my excellent friend is disposed to look to that clause of the Constitution. It is a clause that has been very much neglected, but to my mind it is one of the most potent in the whole Constitution, full of beneficent power that it would be well if this Government now, at this crisis of its history, were disposed to exercise. In this clause are waters of healing for our distressed country. Follow this clause in its natural and obvious requirements, and you will have security, peace, and liberty under the safeguard of that Great Guarantee, the Equal Rights of all.

But I must remind my excellent friend that there is no occasion at this time for any resort to this transcendent source of power. The power from which this resolution is derived is obvious. My friend interrupts me to say that it is the war power. I say it is obvious, and I will show him in a moment that it is not the war power. It is a power that has been exercised constantly, from the beginning of our history, with regard to which there can be no question; because it is embodied in one of the clearest texts of the Constitution; because it has been expounded by a series of decisions from our Supreme Court, which are among the most authoritative in our history. It is the power to regulate commerce. My friend smiles; but he must not smile at the Constitution of his country. That reads as follows:

Congress shall have power to regulate commerce with foreign nations and among the several States."

By this resolution it is proposed to regulate commerce with foreign nations. Have not all the regulations with regard to passengers been under this power? Have they not all been the regulation of commerce with foreign nations? Can there be any doubt on the question? Is it not as plain as language can make it? Why, sir, ever since I have been in Congress we have had annual bills for the regulation of passengers coming into our ports-bills of different degrees of stringency, laying one penalty here, and another penalty there, all in the execution of this unquestionable power.

Mr. GRIMES. Will the Senator allow me to ask him a question?

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That is the Secretary of War

shall also enforce the establishment of sanitary cordons to prevent the spread of said disease from infected districts adjacent to or within the limits of the United States?

Not confining it to the lines between the States, but giving him authority to establish cordons within the jurisdiction of a State. I should like to know where the Constitution authorizes such a thing as that.

Mr. SUMNER. I am obliged to my friend even for interrupting me to call attention to that section, though he will pardon me if I do not answer him at this moment, but do so when I come to that part of the resolution.

Mr. GRIMES. Any time will do, so that we get it.

Mr. SUMNER. You will have it all. I am dwelling now on the question of the power derived from the positive text of the Constitution to regulate commerce with foreign nations. I say that in the execution of that power we have undertaken to apply all manner of restrictions and regulations to the transportation of passengers. We have gone so far as to provide for the quantity of water that shall be on board each ship in proportion to every passenger. We have subjected every ship to regulations while at sea, and again to other regulations after arriving in port. The exercise of the power has by practice been placed absolutely beyond question. Then, as I have already said, it is intrenched in the very best judicial decis ions of our country. I submit that no person can raise a question with regard to it.

Mr. MORRILL. Will the Senator allow me to ask him a question?

Mr. SUMNER. Certainly.

Mr. MORRILL. About the question of regulating the importation of passengers from foreign countries nobody raises a question or a doubt. This is a question of quarantine, in its character police. Is there any precedent in the history of the United States where that power has been exercised by the general Government?

Mr. SUMNER. I am very glad the Senator presses that question. I meet it. Does the Senator mean to suggest that the same power that can reach to the sea, and determine even the quantity of water that shall be in the hold for each passenger cannot apply the minutest possible regulation when that same ship at least arrives in the harbor?

Mr. MORRILL. Will my friend allow me to answer him right there?

Mr. SUMNER. Certainly.

Mr. MORRILL. I maintain that when the passenger is landed and comes within the limits and jurisdiction of the State and within its police power, the commercial power of the Government ceases at that point, and the treatment of the passenger thereafter is within the police power of the State exclusively.

Mr. SUMNER. I think the Senator goes beyond the decision of the Supreme Court.

He overrules that decision.

Mr. MORRILL. I am precisely on a line with the license cases, in which the principle was applied to the importation of liquors, in which the court settled that until they were landed the Government of the United States had exclusive jurisdiction, but when they were landed and were undertaken to be distributed the police power of the State intervened and became exclusive.

Mr. SUMNER. At a certain stage I admit that the police power of the State may intervene, but I do nevertheless insist as beyond question that the power of the United States is complete over every passenger vessel when it arrives in the harbor, so that it may be subjected to any regulations in the discretion of Congress for the public good with reference to passengers. Of course this is discretion to be exercised wisely for the public good, to the

end that the public health may not suffer. Strange if the national Government, which is our guardian against foreign foes, may not protect us against this fearful enemy. Mr. MORRILL.

agree to that

I do not deny that; I

Mr. SUMNER. Very well.

Mr. MORRILL. Now, my query is, can the power of commerce, that power which regulates the passengers on their passage to this country, follow the passengers entirely into the States and overrule the internal police of the States? That is the question.

Mr. SUMNER. Now the Senator puts a question which runs into the question already propounded by the Senator from Iowa, and to which I am coming in due course of time. I have not quite arrived at it. I was illustrating the power that the General Government would have in the harbor; and now let me give another illustration, which is familiar to my honorable friend; it is with reference to goods which arrive. I need not remind the Senator from Maine that when goods have arrived subject to duties the custom-house exercises its control according to the prescription of law, not only while those goods are water-borne, but after they have been landed, and if they have been landed in violation of the law, it pursues those goods even into the interior."

Mr. CHANDLER. To the Rocky mountains. Mr. SUMNER. A Senator behind me says even to the Rocky mountains. It is enough to say that it pursues those goods into the interior. In short, the Constitution of the United States was not so absurd, nor have our courts been so absurd in its interpretation, as to recognize a power in the custom-house merely at the door of the granite structure, and to require that it shall stop there. No, sir, the power must be made effective. We have practically made it effective with reference to goods. We have also, to a certain extent, made it effective through decisions of the Supreme Court with reference to passengers. It now remains that we should carry it one stage further, and for the public good, and to secure the public health, which is a great part of the public good, to insist that this same power shall be applicable, just as we have already insisted that it is applicable, to the pursuit of goods. I cannot myself see the difference between the two cases. It seems to me that the power over goods imported at our custom-house under the acts of Congress, the power over passengers introduced into this country under acts of Congress, are both derived from the same source, and you can find no limitation for one and no expansion for one which is not equally applicable to the other.

insist, therefore, that on this simple text, the power to regulate commerce with foreign nations, you find ample power for this action. You must annul this text, or at least limit it by construction and dwarf its fair proportions, or the power of Congress to provide against cholera is perfect.

But Senators call my attention to the second clause of the resolution, which is as follows:

That he shall also enforce the establishment of sanitary cordons to prevent the spread of said disease from infected districts adjacent to or within the limits of the United States.

To my mind this clause may be treated under two different heads: first, it may be regarded as ancillary from the nature of the case to the power which is derived under the clause to regulate commerce with foreign nations. From the nature of the case, if you have the power to shut out cholera from the ports, you must be intrusted with an associate power to follow this same enemy even into the interior, precisely as you follow goods that have escaped the exercise of your power in the ports. I am willing, therefore, to put it even on the first clause of this constitutional provision, calling it simply ancillary. But I do not stop there, for annexed to the first clause are the words, "and among the several States." Congress has power to regulate commerce among the several States. Now, sir, assuming that commerce is,

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as it has been described or defined by our Supreme Court, intercourse among men, embracing the transportation not only of goods but of passengers, and applicable to everything that comes under the comprehensive term intercourse, giving to it that expansive definition which I think you will find in some of the decisions of the Supreme Court, I ask you if you do not find under that second clause ample power also to regulate this matter. Congress has power to regulate commerce, communication, intercourse, transportation of freight and transportation of passengers among the several States. To make that effective, you must concede to it a power such as is described in the clause to which the Senator from Iowa has directed my attention:

He shall also enforce the establishment of sanitary cordons to prevent the spread of said disease from infected districts adjacent to or within the limits of the United States.

There is no reference here to State lines, and why? From the necessity of the case. The disease itself does not recognize State lines. The authority which goes forth to meet the disease must be at least on an equality with the disease, and can recognize no State lines. How vain to set up State rights as an impediment to this beneficent power.

I therefore conclude that the power over this subject is plenary, whether you look at the first clause of the Constitution to which I have called attention relating to foreign commerce, or the second clause relating to commerce among the States. It is full, it is complete. Hence I put aside the constitutional objection, whether urged seriously or in levity, as it was perhaps by my excellent friend from New York; I put it aside as absolutely out of the question and irrelevant. Congress has ample power over this whole question; and, sir, permit me to ask if it had not ample power over this whole question, where_should we be as a Government at this time? Can we confess that a great Government of the world must fold its arms and see a foreign enemy, for such it is, crossing the sea and invading our shores and we unable to go forth to meet it? I do not believe that this transcendent Republic is thus imbecile. I believe that under the text of the Constitution, as well as from the nature of the case, it has ample powers to meet the enemy in the simple text of the Constitution regulating commerce. To my own mind the case seems too clear for argument.

And this brings me, sir, to the proposed amendment of the Senator from Vermont. He moves to strike out the clause to which I called attention myself the other day and to substitute certain words creating a commission. I objected to this clause the other day; I will read it now:

That it shall be the duty of the Secretary of War, with the cooperation of the Secretary of the Navy and the Secretary of the Treasury, whose concurrent action shall be directed by the Commander-in-Chief of the Army and Navy, to adopt an efficient and uniform system of quarantine against the introduction into this country of the Asiatic cholera.

I objected, it may be remembered, to this clause as placing this bill under the patronage of the war power. I did not think it needed that patronage, though I was willing to admit that it might need sometimes the exercise of the war authority; but I did not think that it needed to be derived from the war power. It was not from the nature of the case an exercise of this power, but it was clearly derived from the power over the commerce of the country; and I regretted, therefore, that the framers of the bill had seemed to put the war power in the forefront. Now, the Senator from Vermont meets that suggestion by an amendment to the effect that a commission shall be constituted, embracing the Secretary of War, the Secretary of the Navy, and the Secretary of the Treasury. I have no particular criticism to make upon that amendment; if the Senate consent to it, I shall certainly be disposed to join; but I think that a better form still may be adopted and one which shall place what we do more completely and unreservedly under that power of the Constitution from which I

think it is derived; that is, the power to regulate commerce. I would therefore propose that the duty shall be confided primarily to the Secretary of the Treasury, who, in the exercise of his powers, shall be aided by the Secretary of War and the Secretary of the Navy, under the direction of the President of the United States.

It seems to me that with that change the bill will be brought into absolute harmony with the Constitution, will be above criticism, and it will be amply effective. I would therefore, if I could have the permission of my friend the Senator from Vermont, propose the amendment in this form: to strike out in the third line the word "War" and insert "the Treasury; " to strike out in the fourth line the word "Navy" and insert the word "War;" and to strike out in the fifth line the word "Treasury" and insert "Navy," and then to strike out the words "whose concurrent action shall be directed by the Commander-in-Chief of the Army and Navy," and insert simply "under the direction of the President of the United States; so that the clause would read:

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That it shall be the duty of the Secretary of the Treasury, with the coöperation of the Secretary of War and the Secretary of the Navy, under the direction of the President of the United States, to adopt an efficient and uniform system of quarantine, &c.

In making this change we shall simply enlarge and expand the existing powers of the Secretary of the Treasury. He is now the head of the custom-house; he regulates the passenger system. Go further, and give him these additional powers that shall enable him, so far as he can, to prevent the introduction of disease into the country. All that we do will be in harmony with the practice of the Government, and I submit will be above question. The Government, in the exercise of admitted powers, will be, I trust, more than a match for the cholera.

Mr. EDMUNDS. Mr. President, as there are now two amendments pending, that of the committee and my own, and inasmuch as the amendment proposed by the Senator from Massachusetts reaches the same point that I had in view, and may be more satisfactory to Senators, with the leave of the Senate I withdraw the amendment I offered, in order that the Senator from Massachusetts may offer his.

Mr. SUMNER. That being withdrawn, I move now to amend the amendment of the committee in the way I suggested, by striking out in line three the word "War" and inserting "the Treasury;" by striking out in line four the words "the Navy" and inserting "War;" in line five by striking out "Treasury" and inserting "War;" and also by striking out the words "whose concurrent action shall be directed by the Commander-in-Chief of the Army and Navy" and inserting "under the direction of the President of the United States."

Mr. JOHNSON. Mr. President, the object of this resolution commends itself to the Senate, provided it can be accomplished. We all have an interest, in common with the whole country, in keeping the cholera out of the United States if we can; if we have the power by legislation to accomplish that purpose, it is our duty to exert it; but I am unable to agree with the honorable member from Massachusetts, that there is any such power under the authority with which Congress is clothed of regulating commerce with foreign nations and between the States. The other grounds on which it is supposed the resolution can be maintained, as far as the authority of the honorable member from Massachusetts is concerned, I understand to be abandoned. It is not to be maintained upon the war power, because there is no war, actual or anticipated, and before any authority can be exerted under the war power with which Congress is clothed, there must be a state of war. During the late rebellion we gave as broad an interpretation to that power, and perhaps broader than the framers of the Constitution designed; but it is immaterial now to inquire whether in the past during a war, or whether in the future if there should be a war, we can go to the extent

we have done, or whether in going to that extent we were justified or not, looking strictly to the true interpretation of the Constitution in that particular. I think all will agree that there must be a war before the power that grows out of a state of war can be exerted; and as nobody pretends that there is a condition of war now, or as far as we know that any war is anticipated, either with a foreign nation or among ourselves, the resolution upon the table cannot be justified upon that ground.

Nor does it profess, even if it could have been justified upon that ground, to be the exertion of the war power. It is intended to avoid disease, and nothing else. It is a sanitary regulation. It is a regulation to be accomplished by means of quarantine, or by quasi means of the same description. My friend from Massachusetts supposes-and the honorable member from Vermont yesterday, in proposing his amendment, put it upon that ground

that the measure can be maintained under the authority which Congress has to regulate commerce with foreign nations. My friend from Vermont will permit me to say that he misapprehends-I speak it with all respectthe principle upon which the passenger cases were decided. At that time the Supreme Court -a majority of the judges following what they supposed to be the rule established in the case of Gibbons vs. Ogden, in 9 Wheaton-were of the opinion that the authority conferred upon Congress to regulate commerce between the United States and foreign nations was exclusive, so that over that subject the States had no control whatever, and upon reasoning very plausible, and not only plausible, but very forcible, as stated in the opinion of Mr. Chief Justice Marshall, who gave the unanimous opinion of the court in the case of Gibbons vs. Ogden. But in the subsequent cases, in the passenger cases, and afterward more decidedly in what were called the license cases, a majority of the court came to the conclusion that the power was not an exclusive one, and that the States had a right to pass laws the effect of which was to regulate commerce in all cases in which such laws would not, in that particular, conflict with any existing laws which Congress might have passed. In other words, the court held that the power was, in one sense, a concurrent power; that if the United States thought proper to exercise their authority, about which there could be no doubt, but did not make an entire regulation, that which was not regulated fell within the scope of the power of the State. It is due to my own opinion and due to candor to say that I think the latter opinions of the Supreme Court in that particular were erroneous. My belief at the time was, and my belief now is, that the power was designed to be exclusive; and that, therefore, if Congress should fail to regulate entirely commerce between the United States and a foreign nation, Congress would have declared, by the failure to regulate, that what was being done with commerce as between the United States and foreign nations and the several States, was just in the condition in which Congress desired it to remain. In other words, the power of regulating commerce with which Congress is clothed is a power exerted in a case of that description by not regulating. The subject itself seems to be-and I speak now upon the authority of Mr. Chief Justice Marshall-one which necessarily must be intrusted to one power, to one Government; and if so, as nobody can doubt that the power is given to Congress by the Constitution, that power, in my opinion, is exclusive of like authority on the part of the States. But the received doctrine of the Supreme Court now is otherwise.

The PRESIDENT pro tempore. The morning hour having expired, it becomes the duty of the Chair to call up the unfinished business, which is House bill No. 280, upon which the Senator from Michigan [Mr. HOWARD] is entitled to the floor.

Mr. CHANDLER. I hope that the special order will be laid aside informally. I think we can get a vote very soon on this question.

Mr. JOHNSON. I have no desire to go on; not the slightest.

Mr. CHANDLER. I think we can get a vote very soon on this measure.

Mr. JOHNSON. I think not. Mr. CHANDLER. My colleague is willing to wait.

The PRESIDENT pro tempore. The unfinished business of yesterday can be laid aside by unanimous consent only.

Mr. JOHNSON. Not by my consent. Mr. CLARK. I think we had better go on with the Post Office bill.

Mr. JOHNSON. I suppose there is no danger of the cholera coming here in the next two

months.

The PRESIDENT pro tempore. Objection being made, the unfinished business will not be laid aside.

POST OFFICE APPROPRIATION BILL.

The Senate resumed the consideration of the bill (H. R. No. 280) making appropriations for the service of the Post Office Department during the fiscal year ending June 30, 1867, and for other purposes, the pending question being on the amendment proposed by Mr. TRUMBULL.

Mr. HOWARD. Mr. President, the discussion upon the amendment offered by the honorable Senator from Illinois [Mr. TRUMBULL] now under consideration has taken so wide a range as almost to induce the belief that certain gentlemen who have spoken have become oblivious of the subject-matter of discussion. This liberality having been extended by the Presiding Officer to others, I trust I shall not fall under the censure of any gentleman if I avail myself of it also. I cannot, therefore, assure the Senate that in what I am about to say I shall confine myself very strictly to the amendment under consideration.

Mr. President, it has been declared during this discussion and on numerous other occasions, both in the Senate and out, that the so-called policy of the President of the United States, who holds his office, under the Constitution, by reason of the death of President Lincoln, is but the same policy enunciated and attempted to be carried out by the latter; and we have been told by the honorable Senator from Wisconsin, [Mr. DOOLITTLE,] and the honorable Senator from Pennsylvania, [Mr. COWAN,] in very energetic and emphatic tones, that this policy is the identical policy of Mr. Lincoln in regard to the reconstruction of the rebel States. I take issue with those Senators upon this question of fact. I deny that the policy of President Johnson is identically the policy of President Lincoln upon that most grave and important subject; and I shall show, or at least endeavor to show, in my feeble way, that the two lines of policy, that of Mr. Lincoln and that of Mr. Jolinson, are in point of principle as wide apart as the poles; that while on the part of President Johnson there is an assertion of the absolute power of the Executive to interfere in the manner he has interfered for the restoration of the rebel States, while it is asserted in his behalf that he has this omnipotent power, and that it does not belong to Congress, Mr. Lincoln always, in his most solemn proclamations and acts, disclaimed that power and was ever careful to protest that he, as the executive branch of the Government, possessed no real power on the subject of the readmission of the rebel States into Congress. Let us recall a part of the history of the times and endeavor to see the exact position occupied by Mr. Lincoln touching the power of Congress and his own power over the question of the readmission of Senators and Representatives from the rebel States into Congress.

But before I come to that, let us, if it be possible, ascertain what this policy of Mr. Johnson actually is. Let us entertain clear ideas upon the subject, and ascertain what is the real essence, the gist of the controversy now existing between him and Congress. The best announcement of the policy of Mr. Johnson upon the subject of reconstruction is of course to be found in the most solemn paper he ever signed,

and that is his message at the opening of the present session of Congress. I have read that message with care, and studied it carefully and repeatedly, and so has the country. If there be any document in existence that is well comprehended both in Congress and out of it, it is that document. The following is a brief synop sis of the views of the President contained in that paper.

It assumes and asserts the power in the President to appoint provisional governors of the rebel States, to give them authority to call conventions, and to reestablish civil governments in them. This it claims as an executive power, a power derived under the Constitution, a power which he has exercised; but, sir, a power which in my judgment exists for him in no part of the Constitution. In this document he claims the right to reorganize civil governments as and for State governments in the rebel States, with all the powers, rights, and privileges of States of and in the Union. In short, he claims the power, as the Executive of the United States, to make peace with the States once in insurrection.

Sir, under what clause of the Constitution does the President find the power to proclaim and reëstablish peace, after a state of war has intervened, whether with a foreign country with which we may happpen to be at war, or a State or district declared by Congress to be in insurrection? He has not the power under the Constitution to make war, and for the same reason he has no power under the Constitution to make peace; and Congress has never in any statute given him any authority whatever to declare peace even in regard to the rebel States. Gentlemen will look in vain for any such authority. In the act of 1861 the President was authorized to declare certain States in insurrection; but, sir, Congress never gave to him any power to declare the insurrection to be at an end, much less to declare the insurrectionary districts again restored to the status they occupied before the war, or to declare that peace in the full constitutional sense of the term has been restored.

Mr. COWAN. Is there any necessity for a declaration that the rebellion is over? Is there any necessity in a case of this kind for a declaration that peace is restored?

Mr. HOWARD. That is by no means the question. The question is, not whether there be any necessity for granting such a power to the President, but whether it has been granted. I assert that Congress have never granted any such power to the President as to declare that peace in all its forms and in all its relations has been restored to the insurrectionary districts. Congress have taken good care to reserve to themselves this authority. I remind the Senate of the fact that the statute I allude to was drawn by the hand of one of the most cautious, circumspect, and profound constitu tional lawyers of the country, Mr. Collamer, of Vermont. He carefully abstained from inserting any clause in that statute authorizing the President to declare that peace was restored.

But the message assumes that it is within the constitutional competency of the President to make peace with the insurrectionary States. It assumes this without the slightest recognition in any of its pages or paragraphs of the power or duty of Congress to legislate on this most important subject. In fact, the message ignores completely Congress and its authority, and treats the Executive as the only source of power over the conquered States. It does not consult or offer to consult Congress at all on the subject of reconstruction, and takes as lit tle pains to refer this subject or any branch of it to Congress, as if there was no Congress; but with singular coolness asks the two Houses to judge, each for themselves, of the elections, returns, and qualifications of their own members. I will refer to the message itself. After stating that he had pursued a certain process in attempting to restore the rebel States to the Union, that he had done this thing, that, and the other, the President says:

"The amendment to the Constitution being adopted

it would remain for the States, whose power has been so long in abeyance, to resume their places in the two branches of the national Legislature, and thereby complete the work of restoration."

And this is all he says of the power of the Congress of the United States to legislate or in any way to act upon the question of the re-' admission of the insurrectionary States into Congress. It is a plain and undisguised assumption that he, and he alone, has imparted to them the legal right to be again represented in Congress.

To make this certain he adds:

"Here it is for you, fellow-citizens of the Senate, and for you, fellow-citizens of the House of Representatives, to judge, each of you for yourselves, of the elections, returns, and qualifications of your own members."

domestic tranquillity insured, and loyal citizens protected in all their rights of life, liberty, and property, I, Andrew Johnson, President of the United States, and Commander-in-Chief of the Army and Navy of the United States, do hereby appoint A B (this is directed to Governor Holden] provisional governor of the State of North Carolina, whose duty it shall be, at the earliest practicable period, to prescribe such rules and regulations as may be necessary and proper for convening a convention composed of delegates to be chosen by that portion of the people of said State who are loyal to the United States, and no others, for the purpose of altering or amending the constitution thereof, and with authority to exercise, within the limits of said State, all the powers necessary and proper to enable such loyal people of the State of North Carolina to restore said State to its constitutional relations to the Federal Government, and to present such a republican form of State government as will entitle the State to the guarantee of the United States therefor, and its people to protection by the United States against invasion, insurrection, and domestic violence."

The authority conveyed by this commission is perfectly plenary, perfectly boundless in its scope and extent authority to exercise within the limits of said State all the powers necessary and proper to enable such loyal people to restore said State to its constitutional relations to the Federal Government."

Sir, had the seceding States been out of the Union for four years without war, had not a blow been struck nor a soldier marched against them, and had they seen fit to come back into the Union quietly, peacefully, and of their own accord, the message could not have been more silent as to the effect of the war upon their condition. On the part of the President of the United States the claim is put forth that he, and he only, has the right to resort to the measures necessary for the reconstruction of the States, and he has assumed, solely in virtue of the executive authority, to appoint provisional governors, without sanction of law-power is granted by the Constitution. There for there is no law nor a part of a law that authorizes him to appoint them-to impart to them power to convoke conventions and to give to those conventions certain power over the reformation of State constitutions, power to enact laws, power to call together Legislatures, and, in short, to cover the whole field of State legislation; and after having done all this he very coolly and very condescendingly says to Congress, "It now remains for you, gentlemen of the Senate, and for you, gentlemen of the House of Representatives, to judge" -of what? Of the fitness of the States for readmission? No, sir. To judge of anything else? No, sir; but simply and solely to judge of the elections and qualifications of the Senators and Representatives that may have been elected from these States thus reconstructed under the executive decree. There is a complete denial on the part of the Executive of any authority in Congress to interfere, to intermeddle, or to regulate in any manner whatever the internal concerns of the insurrectionary States, or to take any step with regard to their internal policy or their internal legislation.

To show that I am not incorrect in this, and in order that the country may be made aware of what the President has actually done under this high claim of power, I beg to call the attention of Senators to the circular letter addressed by Mr. Johnson soon after the cessation of actual hostilities to the various provisional governors of the insurrectionary States. I have here the commission which he issued to his numerous provisional governors. He, the President of the United States, assumes, of his own motion, without authority of Congress, without calling together Congress, or in any way consulting or proposing to consult them, to issue to each of these provisional governors this imperial commission, assuming to grant full legislative authority over the conquered States. After reciting in very laborious phrase the fact that he is President of the United States, that he is Commander-in-Chief of the Army and Navy, and adding what is not contained in the Constitution or the laws of the land, that he also is "chief civil executive officer of the United States," he says:

"Now, therefore, in obedience to the high and solemn duties imposed upon me by the Constitution of the United States"

I call the attention of the especial friends of the President to this singular language, and I shall ask them to explain it before this discussion ceases

'Now, therefore, in obedience to the high and solemn duties imposed upon me by the Constitution of the United States, and for the purpose of enabling the loyal people of said State to organize a State government, whereby justice may be established,

Now, sir, I ask, under what clause of the Constitution of the United States is it that the President derives this boundless and undefined authority he has thus assuined to impart to his provisional governor? I assert that no such is nothing of the kind in it. As well might the President of the United States, in case of a conquest by the armies of the United States of a foreign country in the prosecution of a foreign war, assume to appoint a provisional governor and give him full power to call together a convention of the conquered people, to authorize that convention to frame a constitution for that people, to authorize them to elect a legislative body to enact laws, and, indeed, to launch and put in motion the whole machinery of civil government in a foreign land conquered by our arms, and to impart to the community thus framed and fashioned the right to be represented in the two Houses of Congress as one of the States of the Union, as to assume to give his provisional governors in the insurrectionary district the like authority.

Understand me, Mr. President; I do not assert that there was no necessity in the rebel States to make some provision against anarchy and for the preservation of order. I do not assert that a conquered people is to be left entirely to the results of war, anarchy, bloodshed, and private rapine. The laws of war and the laws of nations provide for the preservation of order and protection of private rights; and the general in the field is bound to afford this protection. That is by no means the question. The question is, what power has the President of the United States over the subject of legislation in the conquered country? Has the President of the United States this most important power? Is he the only legislative authority in the land whose duty it is to see to it that loyal governments are established, or does it belong to Congress? That is the point. I maintain that the power belongs to Congress, and to Congress alone. How was the necessity produced of any interference of this kind on the part of the United States? How has it happened that provisional governors became necessary? It was by the results of war. Who carried on the war? Was it the President? Who raised the Army? Who armed, clothed, disciplined, officered, drilled them? Congress, and not the President.

Sir, this claim of legislative authority on the part of the President, a claim perfectly distinct and outspoken so far as he is concerned, is, in my judgment, one of the most enormous usurpations of the power of Congress ever attempted; and if the Congress of the United States at this moment, the most momentous in the history of this Government, shall wink at the assumption, if they shall not stand up in their places here and manfully and resolutely assert their constitutional power over the whole subject, I look forward to the time when the will of the Executive of this nation

shall become the law of the land, and the authority of Congress dwindle in feebleness, and finally become lost in desuetude and contempt.

What, sir, was the plain duty of the President on the cessation of actual hostilities in the spring of 1865? The Constitution provides that the President shall, upon extraordinary occasions, convoke Congress for the purpose of taking their advice and enabling them to pass such acts of legislation as may be required. Sir, has there ever been any occasion in our past history, is it likely that another occasion will arise in our future history, more imperiously calling upon the Executive to convoke Congress and submit the whole matter to their judgment than that occasion? We had been engaged in one of the most bloody and ferocious wars known in history. At least eleven millions of the people of the United States had been for four years waging a relentless, wicked, rebellious war against the Government. The loyal States had sent to the field uncounted myriads of their sons to combat the enemy. There was scarcely a plantation from the Lakes to the Gulf of Mexico, scarcely a stream of water throughout the length and breadth of the land whose banks had not been dyed with the blood of the faithful or of the rebellious. More than one half the geographical extent of our territory lying east of the Rocky mountains had been in the acknowledged possession of the rebellion. We had sacrificed untold millions of dollars in the prosecution of the war to uphold the authority of the Constitution, and there was hardly a household throughout the loyal North in which there were not tears of lamentation over the loss of some dear one who had bravely gone to the field and sacrificed his life under the folds of the old flag. At the North we were divided by political parties. We had in our midst a party who had openly declared against the further prosecution of the war and pronounced it a failure, a party who for long anxious months were on the very eve of taking up arms also against the Government and acting as the allies of the rebels. The whole country, from center to circumference, was convulsed and thrown almost into anarchy by these great and perilous events. Our relations with foreign Powers had also become greatly entangled, and there was never an occasion when it was so necessary to call Congress together, take their advice, and appeal to them for proper legislation; and yet Mr. Johnson, acting I know not under whose advice, assumed to himself the whole task of restoring what he calls peace, and of reconstructing the rebel States, without convocation of the representatives of the States and the people, in utter disregard of their authority or the measures of legislation which they might think demanded by the public safety.

I complain of this course of conduct on the part of the Executive because I believe it to be a usurpation of the authority which pertains, not to him, but to Congress; and here is the gist of the controversy; here is the bone of contention. Mr. Johnson, backed by certain advisers, says to the country and to Congress, "The executive power is sufficient in the premises; the executive power has recreated and reconstructed the States; you, gentlemen of Congress, have nothing to do with this subject; you have no power of legislation over it; I, the Executive, I, Andrew Johnson, assume to myself the authority of declaring when a State is restored to the Union and when it is entitled to readmission by its Senators and Representatives into the Halls of Congress." This is the point. The policy of Mr. Johnson was plainly announced in his opening message. He had, forsooth, reconstructed the States, and he says to us, in very condescending terms, "It belongs to you now, gentlemen of either House, to judge merely of the qualifications of the members who shall be sent to you by my reconstructed States!"

Now, Mr. President, I come to the question of what was the policy of President Lincoln; and here I desire the particular attention of

the apologists of this great stretch of executive power. That I do not err in saying it is claimed in behalf of Mr. Johnson that he is but pursuing the same policy pursued by Mr. Lincoln, the following extract will sufficiently prove. In his 22d of February speech, already famous at home and abroad, and in which Mr. Johnson undertook to develop his policy and to eulogize it, he said:

"The very policy which I am pursuing now was pursued under his [Mr. Lincoln's] administration, and was being pursued by him when that inscrutable Providence saw fit to remove him, I trust, to a better world than this."

"The very policy which I am pursuing," is the language of President Johnson.

Again, the honorable Secretary of State, in the speech he made at the Cooper Institute in New York on the same evening, speaking of the same subject, used the following equally emphatic language:

"And it is the same plan that Abraham Lincoln projected before he was removed from his high trust, the same one that Andrew Johnson was executing for him in Tennessee."

That policy, sir, here asserted to be the same as that of Mr. Lincoln, is immediate readmission to Congress, without delay, without securities, without condition; and it is based upon this monstrous assumption, to which I have already alluded, that it is competent for the Executive to reconstruct the insurrectionary States; that it is for him and not for Congress to impart political power and legislative capacity to the people of the insurrectionary States. Now, sir, I assert that Mr. Lincoln never adopted any such principle, and I stand here in my feeble way to vindicate the memory of that great and good man from such an aspersion upon his character.

Mr. Lincoln, in his proclamation of the 8th of December, 1863, after declaring that he should recognize as the true government of the insurrectionary States the one which should be constituted according to the provisions of each of his proclamation, proceeds to use the following cautious and significant language, which seems to have been entirely overlooked or forgotten by the advocates of the immediate restoration policy:

"To avoid misunderstanding, it may be proper to say that this proclamation, so far as it relates to State governments, has no reference to States wherein loyal State governments have all the while been maintained. And for the same reason"

That is, to avoid misunderstanding"it may be proper to further say that whether members sent to Congress from any State shall be admitted to seats constitutionally rests exclusively with the respective Houses, and not to any extent with the Executive."

Here is Mr. Lincoln's protest against his own authority so to construct an insurrectionary State as to impart to it the right of electing and sending members of the Senate and House of Representatives. He refused to recognize as within himself any such authority. He denied it in the most guarded language of which he was capable. Is that the doctrine of President Johnson to-day? Does he deny that to him pertains the power of imparting political rights to the insurrectionary States in such a way as to enable them legally and constitutionally to elect Senators and Representatives? No, sir. He asserts it; and he asserts that this having been done by virtue of his imperial decrees, all that remains for Congress to do is to pass, each House for itself, upon the naked, barren question of the sufficiency, the regularity, or formality or informality of the mere certificates of election which may be brought here.

He has assumed to enable the insurrection ary States to elect Senators and Representa tives to come to these Halls and participate in our legislation. And this is the great point of controversy between us, the assumption on his part to interfere in the legislation of Congress and the denial of that authority on our part. Such is the gist of the controversy. "My policy" means immediate readmission into the two Houses of Congress in the persons of the Senators and Representatives elected by these

reconstructed rebellious States without qualification, without condition, and without taking security against a recurrence of the war. Mr. Lincoln never adopted any such principle, but he denied it. He was careful, in order to avoid any misunderstanding on this most delicate question, so to express himself in his proclamation as to leave no ground of controversy or disputation. He asserts that the right of readmission belongs exclusively to Congress, and not to any extent to the Executive. That is not, however, " 'my policy," nor the doctrine of the advocates of "my policy.'

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Mr. President, allusion has been made to what is known as the dying speech of President Lincoln. Even that has been quoted on this floor in support of the pretensions of the Executive. Sir, this doctrine receives no support from the dying speech of Abraham Lin

coln.

On the contrary it receives from that speech a most stern and decisive rebuke. On that occasion President Lincoln said:

"As a general rule I abstain from reading the reports of attacks upon myself, wishing not to be proroked by that to which I cannot properly offer an answer. In spite of this precaution, however, it comes to my knowledge that I am much censured from some supposed agency in setting up and seeking to sustain the new State government of Louisiana. In this I have done just so much as, and no more than, the public knows."

whether this House or the other should admit this particular member or the other particular member to a seat in the House. That is a side issue, as the honorable Senator from Pennsylvania readily sees if he understands the question. It has nothing to do with the real question I am discussing. That is the power of the President of the United States to impart political rights to enemies who have forfeited them by making war against the United States.

Mr. COWAN. The honorable Senator will allow me a word, so that we may understand each other; because I really desire to understand him, and I think he is fair enough to desire to understand other people. Do I understand the honorable Senator, then, to say here that, in the rebellion, the rebel States were utterly and entirely destroyed, had no existence whatever in the eyes of the Constitution and the laws, and that the President had no authority whatever to institute any measures for their rehabilitation and for their replacement in their order as States, and that it is in that of which he complains of the President?

Mr. HOWARD. I shall not now undertake, for it is unnecessary, to lay down the exact boundaries and limitations of the power of the President of the United States, as Commanderin-Chief of the Army and Navy, in regard to a

A phrase in its tone and style entirely Lin- conquered people. That is an immaterial ques

colnian.

"In the annual message of December, 1863, and accompanying proclamation, I presented a plan of reconstruction, (as the phrase goes,) which I promised, if adopted by any State, should be acceptable to and sustained by the executive government of the nation. I distinctly stated that this was not the only plan which might possibly be acceptable; but I also distinctly protested that the Executive claimed no right to say when or whether members should be admitted to seats in Congress from such States."

A full, solemn, plump disclaimer on the part of President Lincoln of the exercise of that assumed power which I am now combatting, the power asserted at present by President Johnson of the right of the rebel States to readmission into Congress.

Mr. COWAN. I beg the honorable Senator's pardon for interrupting him, but I know that he has no design to misrepresent the President; I think not, at least.

Mr. HOWARD. Not at all.

Mr. COWAN. Has not the President quite as distinctly, quite as plumply disclaimed on his part any attempt to influence Congress to admit members from the southern States upon this floor? Has he not said that that rests exclusively with each House of Congress? Mr. Lincoln said "the respective Houses of Congress." Is it not but fair to the President to say that he has never on any occasion or at any time claimed that he had the right to dictate to Congress whether they should receive this member or that member or the other? Is not the true question this: when a southern applicant for a seat comes here, shall the Senate of the United States decide upon it for them selves, and shall the House of Representatives decide for themselves, or shall a joint committee of the two Houses, and both Houses, decide the question rather than the respective Houses, as President Lincoln said, or each House as President Johnson has declared?

Mr. HOWARD. Mr. President, there is in the mind of the honorable Senator from Pennsylvania or in my own a great confusion of ideas. I am combatting this principle, to wit, that it is the right of the President of the United States so to reconstruct, reconstitute, or recreate the insurrectionary State governments as to enable them, in virtue of his executive decrees, to elect a Senator or Representative at all. That is the point. The mere formal question of the power of each House to decide upon credentials is one which I am not discussing. I go far behind that; I go down to the bottom, to the essence of the question, and deny the power of the President to impart to the people of any rebel State any political rights whatever; and I claim that that power belongs to Congress and to Congress alone. I have not said that Mr. Johnson had ever stated that he claimed he had the right to dictate

ton. However, in part answer to the gentleman's rather prolix interrogatory, I will say, that it is not competent for a military commander in the field, whether he be "Commander-inChief" or acting in any other capacity under the Constitution of the United States, to impart political or legislative rights to the conquered community. That is what I assert. The Commander-in-Chief holds the sword of physical force; all his acts as Commander-in-Chief are connected with the prosecution of the war as such, and go not a single inch beyond the necessities of the war. He has no authority to assume the legislative power that appertains to the Government who appoints him and whose servant he is, and undertake to exercise legislative authority in the country where he is the conqueror. Let the honorable Senator from Pennsylvania read the numerous cases in Roman history and in Grecian history, and indeed in all other histories in which such attempts have been made on the part of commanders in the field, and he will not find a single instance in which any attempt to exercise legislative authority over a conquered people has been tolerated by the Government at home.

Mr. COWAN. I wish to state distinctly to the honorable Senator from Michigan that my theory is as simple

Mr. HOWARD. I do not wish to be interrupted by a statement of the gentleman's theory. He has stated it so often on this floor that I think I tolerably well understand it myself.

Mr. COWAN. I hope the honorable Senator will allow me. I want to make that statement just here as he is addressing his argument

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Mr. COWAN. Of course I will not persist; but if the gentleman will not allow me to put the question here, I will put it at a time when he cannot avoid it.

Mr. HOWARD. The Senator will pardon me for saying that although my refusal in this case may not be entirely agreeable to him, it cannot be beyond his recollection that be, on some occasions heretofore, has shown a little intolerance of interruption.

When I was interrupted I was reading the dying speech of Mr. Lincoln. I must go back

to it. He says:

"In the annual message of December, 1863, and accompanying proclamation, I presented a plan of reconstruction, (as the phrase goes,) which I promised if adopted by any State, should be acceptable to and sustained by the executive government of the nation. I distinctly stated that this was not the only plan

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