Mr. SUMNER. Let us go through with the morning business. The VICE PRESIDENT. The question is on the motion of the Senator from Ohio. Mr. HALE. Are not reports in order? Mr. ANTHONY, from the Committee on Printing, to whom was referred a motion to print the memorial of S. D. Carpenter, praying an examination of his invention of a new method of defensive armor in the construction of war ves The VICE PRESIDENT. Reports will be in sels, with a view to its adoption by the Governorder if the motion shall not prevail. Mr. HALE. The Chair has sometimes decided that they were in order, notwithstanding such a motion was made. The VICE PRESIDENT. Never. The Senator is mistaken. A motion to postpone all prior orders is a motion which has never been known to be out of order in this body within the knowledge of the Chair. The question is on the motion of the Senator from Ohio. The motion was not agreed to. REPORTS OF COMMITTEES. Mr. WADE, from the Committee on Territories, to whom was referred a resolution of the Legislature of Iowa in favor of the construction of a military and wagon road from some point on the west side of the Missouri river at or near the mouth of the Niobrara river in Nebraska Territory, to Gallatin, in Idaho Territory, asked to be discharged from its further consideration, and that it be referred to the Committee on Military Affairs and the Militia; which was agreed to. Mr. MORRILL, from the Committee on Claims, to whom was referred the memorial of James J. Johnson, praying compensation for services rendered as veterinary surgeon of the fourth Iowa cavalry, asked to be discharged from its further consideration; which was agreed to. He also, from the same committee, to whom were referred papers relating to the claim of W. H. and C. S. Duncan, for supplies furnished to a company of Kansas militia, mustered into service in 1856, asked to be discharged from their further consideration; which was agreed to. He also, from the same committee, to whom was referred the petition of James F. Simmons, praying compensation for the illegal seizure of a vessel and cargo by Commander Wooden, of the Stars and Stripes, and the subsequent wreck and loss of the same on Long Island, asked to be discharged from its further consideration, the petitioner being dead; which was agreed to. Mr. HALE. The Committee on Territories, to which was referred a petition of natives of Louisiana, citizens of the United States of African descent, praying that all the citizens of Louisiana of African descent born free before the rebellion may be admitted to the rights and privileges of electors; and also a petition of colored citizens of the United States, praying that the elective franchise be granted to the colored people of the United States; and also a petition of citizens of African descent, praying that the right of suffrage may be granted to all the natives of Louisiana of African descent; and also a memorial of the National Clubs of the city of New York and vicinity, praying that freed slaves may be permitted to take part in the reconstruction of the rebellious States, and that the right of suffrage be not confined exclusively to white persons, have had them under consideration, and have instructed me to ask that the committee be discharged from their further consideration. In explanation of this motion I am instructed by the committee to say that these memorials were all with one exception referred, as we think very appropriately, to the select committee on slavery and freedmen; but as that committee had them under consideration, and asked to be discharged on the ground that they did not come within their jurisdiction, the Committee on Territories are at a loss to know what committee they do come under, and I therefore move that the Committee on Territories be discharged from the further consideration of these memorials, and that they lie on the table. The motion was agreed to. Mr. HALE. The Committee on Territories, to whom were referred sundry petitions of loyal citizens of the State of Virginia, praying that Congress may give Virginia a territorial government, and also some remonstrances against the prayer of these petitions, have had the same under consideration, and instructed me to move that the committee be discharged from their further consideration, and that they be indefinitely postponed. The motion was agreed to. ment, reported adversely thereon. He also, from the same committee, to whom was referred a resolution to print extra copies of the Correspondence on Mexican Affairs, reported it with an amendment. The amendment was agreed to, and the resolution as amended adopted, as follows: Resolved, That five hundred additional copies of the Correspondence on Mexican Affairs be printed for the use of the Senate, and that two hundred copies be printed for the use of the Departinent of State. INDIAN TERRITORY. On motion of Mr. LANE, of Kansas, the following resolution, submitted by him on the 2d instant, was considered and agreed to: Resolved, That the Committee on Territories be instructed to inquire as to the policy of organizing a territorial government for the country lying between Kansas and Texas, known as the Indian country, and to report by bill or otherwise. BILLS INTRODUCED. Mr. WILSON asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 427) for the protection of passengers; which was read twice by its title, and ordered to lie on the table, and be printed. He also asked, and by unanimous consent obtained, leave to introduce a bill (S. No. 428) to prevent the sale of notes, scrip, bonds, or other evidence of debt issued by rebel authorities; which was read twice by its title, and ordered to lie on the table, and be printed. Mr. GRIMES asked, and by unanimous consent obtained, leave to introduce a joint resolution (S. R. No. 107) providing for the further decoration of the Capitol; which was read twice by its title. Mr. COLLAMER. I should like to know the purport of that resolution. What sort of decoration does it provide for? Mr. FOOT. Let the resolution be read at length. Mr. GRIMES. I desire to say, in justice to myself, that I have not drawn up this joint resolution with malice prepense. It is a joint resolution which has been introduced into the House of Representatives by a distinguished member of that House, and at his instance I have offered it here. Mr. COLLAMER. It is a resolution for a painting, is it not? Mr. GRIMES. Yes. Mr. FOOT. Let it be read, so that we can understand it. The Secretary read the resolution. It proposes to direct the Joint Committee on the Library to enter into a contract with William H. Powell to paint a picture for the United States, to be placed at the head of one of the grand staircases in the Capitol, illustrative of some naval victory, at a price not to exceed $25,000. Mr. COLLAMER. I move that the resolution be referred to the Committee on the Library. The motion was agreed to. MESSAGE FROM THE HOUSE. A message from the House of Representatives, by Mr. MCPHERSON, its Clerk, announced that the House had concurred in the amendment of the Senate to the joint resolution (H. R. No. 91) in relation to the treaty of 1817. The message further announced that the House had passed a bill (H. R. No. 641) to provide for another term of the circuit court of the United States for the district of Arkansas, and for other purposes. METROPOLITAN RAILROAD. On motion of Mr. DIXON the Senate resumed, as in Committee of the Whole, the consideration of the bill (S. No. 411) to amend an act entitled "An act to incorporate the Metropolitan Railroad Company in the District of Columbia," the pending question being on the amendment reported by the Committee on the District of Columbia to add to the second section the following proviso: Provided, That the directors of said Metropolitan Railroad Company shall have power to require the subscribers to the capital stock to pay the amount by them respectively subscribed at such time, in such manner, and in such install ments as they may deem proper; and if any stockholders shall refuse or neglect to pay any installments, as required by a resolution of the board of directors, after reasonable notice of the same, the said board of directors may forfeit said stock and all previous payments thereon for the use of said corporation, under such general regulations as may be adopted in the by-laws of said corporation, or inay sue for and collect the same in any court of competent jurisdiction. Mr. DIXON. I propose to amend she amendment by striking out the words "forfeit said stock and all previous payments thereon to the use of said corporation," and inserting these words in lieu of them: Sell at public auction to the highest bidder so many shares of said stock as shall pay said installments; and the highest bidder shall be taken to be the person who offers to purchase the least number of shares for the assessment due. The amendment to the amendment was agreed to, and the amendment as amended was adopted. Mr. SUMNER. I offer this amendment as a new section to come in at the end of the bill: And be it further enacted, That the provision prohibiting any exclusion from any car on account of color, already applicable to the Metropolitan railroad, is hereby extended to every other railroad in the District of Columbia. The object of that simply is to equalize the rail ronds. Mr. DIXON. I suggest to the Senator that he had better offer it on some other bill. To incumber this charter with provisions that apply to other roads, it seems to me, is improper. The thing itself, as it respects this railroad, is provided for in the charter of this company. Mr. SUMNER. The object of the proposition that I have made is to equalize the condition of the railroads in this city. The Metropolitan railroad, with regard to which we are now legislating, already is put under this condition, and the friends of that railroad very justly complain that it is not fair that the other railroads should not be under the same provision. The object of my amendment is to subject all the other railroads that are in business competition, of course, with the Metropolitan railroad to the same condition which Congress has imposed upon that road. The proposition, therefore, is just with regard to the different roads between themselves, besides its great intrinsic justice. Mr. HALE. I entirely agree with the principle of the amendment; but it strikes me that it is anomalous legislation in a private act, which is a charter of a private company, which will be printed and published with the private laws, to incorporate a provision of public law. I think it is incongruous and out of place in this bill, with great deference to my friend. I will vote with him to put it in any public law to which he will move it, but I think it is not fair to put it on a private bill. It is putting a public law applicable to all companies into the private charter of one company. Mr. CONNESS. I would suggest to the Senator from Massachusetts that a bill introduced by his colleague this morning provides for it; it covers that point exactly. Mr. SUMNER. How so? Mr. CONNESS. It is a bill to compel all carriers of passengers in the United States to give access to all persons on any ship, or railroad, or steamboat, as the case may be, or at the table or elsewhere. Mr. DAVIS. And state-rooms? Mr. CONNESS. I suppose in state-rooms too, to establish the rule of " first come first served." It is a bill of wider application than the amendment proposed by the Senator now, and I too am opposed to his loading this bill with his proposition. The bill offered this morning by the Senator's colleague, [Mr. WILSON,] the chairman of the Committee on Military Affairs, is decidedly the widest in its scope on this subject, the most humanitarian and general, that has ever yet been proposed; and the honorable Senator now offering this amendment can make no improvement upon it. Mr. SUMNER. I have a rule a little different, sce, from that of my honorable friend from California. I am in favor of getting what I can as soon as I can, and not postponing it to an indefinite future. My honorable friend reminds me that my colleague has introduced a bill of a much larger scope; can he give the country any assurance that the bill of my colleague will become a law of the land? I Mr. CONNESS. I cannot. Mr. SUMNER. Very well; then I presume my friend is not in earnest in his position. Now I come to my other friend, the Senator from New Hampshire, [Mr. HALE,] who objects to this proposition on the ground, if I understood him, that it is introducing a general provision into what he chooses to call a private bill. How is it a private bill? I do not understand it so. It is a bill chartering a railroad company in the District of Columbia; and Congress does that in the exercise of those special powers that are given to it by the Constitution; and the provision becomes important, as I have already said, in two respects: first, for the sake of the Metropolitan Railroad Company itself, which has been brought into disfavor in comparison with other railroads, because Congress have put the condition requiring that there shall be no exclusion of color in its charter; I say, therefore, the proposition is favorable to that road. And in the second place it is entirely germane to the question. In legislating on a railroad, what is more germane than that the Senate should ingraft upon the charter any proposition, special or general, which should concern the subject matter? say, therefore, that the suggestions of both my honorable friends fall to the ground; they cannot prevail if Senators are in earnest on this subject. Mr. SAULSBURY. I say nothing in reference to this proposed amendment, but I wish to record my name against all such legislation. I ask for the yeas and nays. Mr. SUMNER. I ask for them too. The yeas and nays were ordered; and being taken, resulted-yeas 19, nays 20; as follows: YEAS-Messrs. Anthony, Brown, Clark, Collamer, Farwell, Foot, Harlan, Harris, Henderson, Howard, Howe, Lane of Kansas, Morgan, Nye, Pomeroy, Ramsey, Stewart, Sumner, and Wilson-19. NAYS-Messrs. Buckalew, Conness, Cowan, Davis, Dixon, Doolittle, Hale, Hendricks, Johnson, Lane of Indiana, Morrill, Nesmith, Powell, Richardson, Saulsbury, Ten Eyck, Trumbull, Van Winkle, Willey, and Wright--20. ABSENT-Messrs. Carlile, Chandler, Foster, Grimes, Harding, Hicks, McDougall, Riddle, Sherman, Sprague, Wade, and Wilkinson-12. So the amendment was rejected. The bill was reported to the Senate as amended, and the amendments were concurred in. Mr. SUMNER. I now renew my amendment in the Senate. The VICE PRESIDENT. The morning hour having expired, it becomes the duty of the Chair to call up the unfinished business of yesterday. Mr. WILSON. I move to postpone the further consideration of that measure in order to finish this. If there be no Mr. TRUMBULL. I hope not. The VICE PRESIDENT. objection Mr. TRUMBULL. I shall object. The VICE PRESIDENT. Being objected to, the morning hour having expired, the unfinished business of yesterday is before the Senate. Mr. WILSON. I suppose it is in order to move to postpone that and take up another bill. The VICE PRESIDENT. It is. Mr. WILSON. Then I move to postpone the pending and all prior orders for the purpose of proceeding to the consideration of the bill which the Senate had before it in the morning hour yesterday-Senate bill No. 408, in addition to the several acts for enrolling and calling out the national forces, and for other purposes. I wish to state that that bill was up yesterday, and was postponed until this morning. I supposed yesterday that we should finish the matter we were then debating; but afterward I came to the conclusion that there was no disposition to finish it, and I do not believe there is any to-day. This bill to amend the enrollment acts ought to be acted on at Once. Mr. COLLAMER. These votes will have to be counted on Wednesday next. Mr. TRUMBULL. I hope the Senator will allow us to dispose of that matter and not interpose his bill. Mr. WILSON. I must say that I have been crowded out for four days by this mere gabble and talk on this subject. I withdraw my motion, but unless the Senator from Illinois gets through with this measure in two hours, I shall renew it, and have a fight over it. The VICE PRESIDENT. The motion is withdrawn, and the unfinished business of yesterday is now before the Senate. REPRESENTATION IN ELECTORAL COLLEGE. The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H. R. No. 126) declaring certain States not entitled to representation in the Electoral College. The VICE PRESIDENT. The pending question is on the amendment proposed by the Senator from Vermont, [Mr. COLLAMER,] and upon that question the Senator from Vermont is entitled to the floor. Mr. LANE, of Kansas. Before the Senator from Vermont proceeds, I desire to ask for the yeas and nays upon his amendment. The yeas and nays were ordered. Mr. COLLAMER. Mr. President, I think any man must be exceedingly dull who would not have understood from the hints and remarks made this morning in relation to this topic that the Senate are very impatient for a vote. I do not blame them for being impatient. But, rising as I do to reply to the speech of the honorable Senator from Maryland, [Mr. JOHNSON,] delivered yesterday, I will not promise that I shall be able to gratify them with even my usual brevity. I will endeavor to be as brief as I can in justice to the subject. In the first place, Mr. President, there perhaps is due from me to that honorable Senator some little notice that I am not entirely insensible to what he has on this and other occasions permitted himself to indulge in in his remarks with respect to my professional ability and discernment. I have never made any reply to them, but at the same time I wish it to be understood that I am not entirely ungrateful or insensible to such remarks. I will merely say that the opportunities I have had to inform myself in relation to the honorable Senator's high acquirements in his profession, his legal acumen, and the perspicuity of his logic have given me a very high appreciation thereof. If I were to say merely that I reciprocate the sentiments he has expressed, and entertain a sincere respect for his professional superiority as high as he entertains of mine, he might consider it at least but a questionable compliment; but I will add to it that I have as high an estimation, and even higher, of him than he has thought proper to express in relation to me. I think that ought to be satisfactory. the point where we separate. I know that one party between two or more nations may make a war, but I say that both parties are required to make peace. If Great Britain were to actually levy war upon this country, besiege our cities, lay waste our coasts, capture our vessels, and then, when we had undertaken to defend ourselves with some success, they should withdraw from it, and declare to the world that there is peace between us, that would not be peace, nor would that war be ended. I insist that both parties must agree to the peace, and that the surcease of hostilities by one side does not end the war. Every nation undoubtedly has the right in a state of war, when negotiating for peace, to insist upon indemnity for the past and security for the future. If one party can make a war and make a peace when they please, without the consent of the other party, then neither of these rights of insisting upon indemnity for the past or security for the future can any longer exist. I say that if Great Britain had made such a war upon us, we would not be obliged to surcease our hostilities in defense of ourselves and the capture of their vessels because they ceased, until we had made a treaty which gives us indemnity for their having made that unjustifiable war upon us. There is the exact point where we separate; and it is in the application of that same point to this war and its analogies that we differ again. But the Senator says you cannot make war upon a State; they are now States in the Union, and if they surcease hostilities you cannot prosecute the war. I am not insisting that if these people lay down their arms and return peaceably to their habitations, the President can carry the war into their houses. That is not what I am talking about. I am talking about when and how the political status of these States is to be restored, and with whose consent it is to be restored. Is it true that the right to make war in this country consists in the right of the States to make war upon the General Government, but the United States cannot make war upon them? Is it their peculiar privilege and exclusive right to make war upon the General Government? Cannot we do anything about it? Cannot we prosecute war against them? Is it their privilege to make war on the United States as long as they have a mind to do so, and when they become satisfied they are not getting along very well, they have nothing to do but to stop and begin it again when But, sir, after all, I could not but observe that the honorable Senator, when speaking in that manner, very courteously and very kindly, always accompanied it with an argument of great weight, coming from him, to show that the posi-they please, renew it when they have a mind to tions I took were wholly untenable. How much, therefore, the respect that is paid to my opinions is worth when accompanied by such sort of argument, he and other gentlemen can answer for themselves. Mr. President, the amendment which I have proposed has in it one very important feature, to which the gentleman has addressed himself; and that is, that the States which have been declared in a state of insurrection are incapable of exercising their privileges or their duties within this Government as integral parts of this Union while they continue in that situation, and that their restoration shall be either by an act of Congress or by the reception of their representatives by the two Houses. That involves this point: whether Congress have anything to do in the matter in relation to the reorganization and reëstablishment of these States. The Senator seems to think not; and he goes on to make some remarks which I will not attempt to repeat, but the substance of them is that they are States in the Union-1 agree to that-and, being in the Union, if the hostilities cease there is an end of all action about it; they are remitted to all their rights, and may exercise all their functions as integral parts of this Government without the consent of this Government one way or the other. There I dissent. The gentleman says that a war may exist without any declaration of war. I agree to that. He says that if Great Britain should wage a war upon us, and were in the exercise of that war, it would be a war though we had not declared it, nor they either. I grant it. He then says that if they should upon the whole surcease that war, withdraw their military force, and Parliament should declare that they were no longer in a state of hostility with the United States, that that would be an end of that war. There is exactly the point where we differ. That is exactly do so, and it is all an ex parte proceeding, and the Government of the United States has nothing to do with it? I cannot agree to any doctrine of that kind. But I desire to make a few remarks on this subject of making war upon a State. I have heard a great deal about that first and last. I do not know but I was to blame, when I first heard that doctrine brought forward by Mr. Jefferson Davis in the Senate, for not correcting him. He quoted from the remarks of Mr. Sherman, Mr. Madison, and several other members of the Convention that formed the Constitution who stated that. They did state it; and Mr. Davis used to quote from them. I understood how that was then. It is true I did not at that time explain it. I did not suppose that other people would be misled by it; nor did I suppose that my explanation would ever reach the community, and perhaps never reach the Senate. The remarks I am now making not only will never be read and understood by the community, but will never be read and understood by half the Senate. But still I feel it my duty at this time, as that doctrine is repeated and those quotations are again alluded to, to make some explanation on that point. Mr. President, you will observe, and any gentlemah who chooses to examine into it will find, that Mr. Buchanan put into his last message that same doctrine, and alluded to the very quotations made by Mr. Davis. If you will read that message it will be perfectly apparent that that portion of it which says you cannot make war upon the States was interpolated into the message after it was drawn up. I do not mean clandestinely; I mean interpolated by the President. It is ob vious from its connection that it is so. I know that while that message must have been in a period of preparation Mr. Davis returned from his excursion to Maine, where he had spent that summer; and that was the very ground and those were the very quotations which Mr. Davis had used in the Senate; and after his return here, as I think, it was put into that message at his suggestion. Now, sir, it will be recollected that the Articles of Confederation were never adopted by the people. They never were a constitution; they were a league; and it was declared in them that the States should retain and continue their sovereignty; that it was a league for the mutual defense of the States against foreign Powers. The States were represented in the Congress under the Confederation by their Legislatures appoining the delegates, and withdrawing them when they pleased; and that body had no power of making laws except on the single subject relating to piracy on the high seas. They merely made requisitions on the States that they wanted so much money and so many men; and the States agreed to furnish them, or did not furnish them, as they saw fit. It will be observed that each State had but one vote in the Congress of the Confederation; each had the same weight. When they came to get together in a Convention to form a new Constitution, the small States were very desirous of preserving the Articles of Confederation; of having a mere league; a mere treaty. They were unwilling to give up the weight which they had under the Articles of Confederation; and they therefore proposed that they should be amended so as to oblige the States to furnish their quotas. The question whether they should mend up the old Articles of Confederation, or form a Government with all the functions of Government, executive, legislative, and judicial, || was the first great question before that Convention. Even the State of New York, then counted a small State, was very persistent in favor of having the Articles of Confederation amended merely, and when it was finally resolved to abandon that project and form a Government, two out of three of those delegates from New York, Mr. Lansing and Mr. Yates, went home and never returned again. It was when the Convention were debating that question that these remarks by Mr. Sherman, Mr. Madison, and others, which have been so often quoted, were made about making war upon the States. They said, "You cannot coerce these States to furnish their quota. Why? Because it is war; you can only do it by force. These Articles of Confederation are a treaty, a league, between these States. It is the settled law of nations that a war between the members of one treaty always puts an end to all the treaty stipulations existing; and, therefore, if you make war upon one of these States under the Articles of Confederation to coerce them, that moment you end your Confederation, beca use it is war, and the war ends it." It is perfectly palpable and plain to me that with articles merely of association in the nature of a treaty between the States, that was strictly and literally true; it could not be done. All the remarks then made by those gentlemen, which are now quoted, were made as applicable to the condition of a league; and yet they are now quoted upon us as being applicable to the condition of a nation as it is now formed, of a national Government. If we follow out the doctrines of these southern gentlemen who have seceded, they are not inconsistent, because they hold that we are nothing but a league now, and therefore the making of a war would end that league. They therefore are not inconsistent in it; but no man who views this as a Government, with all the functions of government attached to it, and not a league, can quote with propriety those expressions as applicable to our condition. So much for that. Now, Mr. President, there commenced an insurrection in this country. It never arose, perhaps, to the dignity of a war until the act of 1861 was passed. I know a majority of the Supreme Court decided that in relation to laying a blockade and the making of prizes, &c., that a war existed before that act of 1861 was passed; but all agree that after the act of 1861 was passed it took the character of war. What shape was it that it took? It was this: Congress declared that where there was an insurrection existing in a State claiming to act under the authority of the State, and the authorities of the State did not disclaim it and did not suppress it, in that case the President might declare the inhabitants of that State in a state of insurrection, and all intercourse between the inhabitants of that State and the inhabitants of the rest of the United States should cease. Observe, ernment. Such being the state of war, the question presents itself, When and how is that war to cease, and when and how is the formal political status of the States which are engaged in it, or the inhabitants of those States, to be restored, and who is to declare it? The gentleman from Maryland has argued at much length to show that under the act of 1861, if the hostilities on the part of the enemy stop, the President is compelled to stop hostilities on his part. I do not wish to make controversy about that. What if he does? I know that the President can withdraw all our forces from the southern States to-morrow, if he pleases; he can withdraw all our ships from off the coast and order them to the harbor of New York or Boston. I know that military operations may cease altogether by his act. I know he may pardon all crimes committed against the United States, including treason. That is his power. But, sir, does that alter the condition of the political status of those States in their relationships to this General Government? Suppose the hostilities entirely cease; suppose the rebels throw down their arms and go home to their several habitations; there are in those States the functionaries of their government, their governors, their legislatures, all organized in this revolutionary operation and carrying it on; and is it true that they then have the right to send members to the Senate and House of Representatives, and if they have a right to send them, to demand their admission here, and we have nothing to say about it? Is it true that they may make war upon the General Government, carry it along as far as they please, then stop it, and we are obliged to receive them, until they have had time to revive their powers or resolution and start again, and we cannot help ourselves? Sir, are there not two sides and two parties to this war? It is the strangest war men ever heard of if it has but one side to it. I take it there are two parties to this war: the several States who have made it, on the one side, and the national Government against whom they have made it, on the other; and I suppose the two parties must participate in the restoration of peace and quietness, and their restoration to their former condition, or a condition where they can perform their functions within the Government as integral parts of the Union. It is for Congress to say when that state of things exists. Congress is not bound to receive their members, or to treat them as being regular, loyal, integral members of this Union because they have surceased fighting and surceased military operations, until we have seen a return to loyalty and an obedience to their allegiiance and the performance of their fealty, a true restoration of themselves to their former condition of loyalty and obedience; and that must be for Congress to decide. That is the main and essential sentiment of the amendment I have presented. Sir, when will, and when ought, Congress to admit these States as being in their normal condition? When they see that they furnish evidence of it. It is not enough that they stop their hostility and are repentant. They should present fruits meet for repentance. They should furnish to us by their actions some evidence that the condition of loyalty and obedience is their true condition again, and Congress must pass upon it; otherwise we have no securities. It is not enough that they lay down their arms. Our courts should be established, our taxes should be gathered, our duties should be collected in those States; and before they come here to perform their duties or privileges again as members of this Union, they should place themselves in an attitude showing to us that they have truly taken that position, and we should pass upon it; and I insist that the President, making peace with them, if you please, by surceasing military operations, does not alter their status until Congress passes upon it. The great and essential thing now to insist upon, in my judgment, is that Congress shall do nothing which can in any way create a doubt about our power over the subject. Indeed it is right to assert at the proper time that we have that power; and how, and when, and in what manner we shall execute that power, is in the discretion of Congress. I do not mean to occupy very much time with that; but one thing I have to say: I believe that when reëstablishing the condition of peace with that people, Congress, representing the United States, has power in ending this war as any other war, to get some security for the future. It would be a strange thing if it were not true that this nation, in ending a civil as well as a foreign war, could close it and make peace by securing, if not indemnity for the past, at least some security for future peace. I do not believe that Congress is stripped of that power in relation to this or any other war; and here I do not wish to be understood as undertaking to assert the existence of such a power without some warrant in the Constitution. The Constitution has in it what is well known as the guarantee section, by which this Government guaranties to every State in the Union a republican form of government. Now, what is implied in that? Several things which are quite obvious. In the first place, that guarantee can only be kept and redeemed by preserving the States within the Union. We cannot carry out a guarantee to States on any other ground than by having and keeping them within the Union. That is necessarily implied. In the next place that guarantee is to the States as States. It is a guarantee to the State of North Carolina, for instance, that North Carolina, as a State, shall have a republican form of government within this Union; not to be taken and split up and made into different States, but it is a guarantee to that State as a whole State. Another thing is implied. That is a guarantee to the minority in a State. No man who will read Mr. Madison's remarks upon the subject can be mistaken in that. The very nature of the thing implies that. The majority in a State can shape their form of government as they please without any help from Congress; but the provision was inserted from a fear that the minority might be overborne, especially, said Mr. Madison, in a slaveholding State. The guarantee was therefore inserted for the security of the minority in a State, though there may be but one man there to redeem Sodom. Again, it is a guarantee from which the States can never discharge the United States. You may say that when they make war on us they discharge us from our obligation in the matter; but that is impossible. That guarantee is not merely for the people of that State; it is a guarantee made for the security of all the States of the Union. I have a right as a representative from the State of Vermont to say that the State of Vermont insists that you shall keep North Carolina in the Union; we formed it with her in it; we had that guarantee, that she should be kept in with a republican form of government, and we have a right to insist on the redemption of that guarantee. Therefore I say no one State can discharge the United States from it. Sup Such being not only the clearly-expressed guarantee but the plighted national public faith which we are bound to keep, let me put a case. pose in all candor that Congress had by experience become convinced that they could not sustain a State within the Union with a republican form of government, holding slaves; suppose we had tried it over and over, and we had beaten them and made peace with them, allowing them to keep their slaves, and they had repeated their rebellion over and over until every man became convinced that it was utterly impracticable and impossible to have a republican form of government under such an aristocracy as that engendered and sustained; and suppose Congress in all candor and seriousness became convinced that we could not keep this guarantee in relation to those States that hold slaves, and they, being at war with us, choose to lay down their arms or we beat them, disperse their forces, and a question arises about fixing the status of those States again, their political condition in relation to this Government, that is, making peace; I say that Congress has a right, if so convinced in all candor, to say that in order to preserve our plighted public faith contained in that guarantee we will destroy and abolish that institution; for we cannot keep our guarantee without doing it. Cannot Congress under the general provision of the Constitution make al! laws proper and necessary to carry into effect the powers granted in the Constitution? Clearly. If that is so then Congress may, in fixing the status of these States, if they are convinced of the proposition I have just stated, make it one of the conditions of their again exercising their franchise as integral members of this Union, that they shall be placed in a position which will enable the Union to continue and exist. Such being my view, it remains for me to say a few words about what the Senator said yesterday in regard to the present probability of peace. I know nothing about that. I have no admissions to the White House, and no knowledge of proceedings there; but I guess, after all, I have about as much as some members of the Cabinet, [laughter,] and you know a Yankee is allowed to I have but little expectation of any guess. present cessation of hostilities, even. I have before remarked that I do not think the mere cessation of military operations is necessarily a peace, nor do I think the political status of these States is thereby reestablished. I think it requires two parties to make a peace. I know not what the President may do. I grant that the President may, if he sees fit, pardon all treason. He has that power. Whether he can really dispense with the operations of what is called the confiscation act, I do not know. I had but very little to do with that act, but I believe it provides for making confiscations by proceeding in rem, and trying a man without notice to him. I do not understand much about such proceedings, nor exactly know how far they may go. But it seems to me that, before the President can reestablish these States in the Union, performing the functions of loyal States within this Government and integral parts of it, somehow or other the action of Congress will be needed. That is the very point we have now in discussion, the very point I am after. I think it does need the action of Congress. How will he get rid of that confiscation law by any action of his own? I surely do not know. Then a law has been passed with his approval declaring that persons who have been engaged in this rebellion are ineligible to appointments to of fice in this Government. I do not know but that perhaps he may get them in without having that law repealed by Congress, but I cannot tell how. So in whatever aspect you look at the case it is evident that no reestablishment of the former condition of things can take place without the action of Congress. There are many other acts of similar character which stand directly in the way of doing what the Senator from Maryland thinks can be done by the President. Put an end to the hostilities, and there, he says, is the end; the States are in, and we have nothing to do with it; and he cannot support a resolution which declares that we have to do with it! I say we have to do with it; we are the other party in the war, and I think we must participate in the reestablishment of peaceful relations. The power existing in Congress in the reëstablishment of peaceful relations to annex such conditions as are necessary to our preservation and life, another question arises, when and how and in what manner you will exercise the power. Will you ever exercise it at all? Will you ever annex any such conditions? We are told by the papers, which seem to be very hungry for peace, and to be crying "Peace, peace, when there is no peace," that there is no need of saying anything more about the condition to which I have adverted, because the Senate and House of Representatives have passed a constitutional amendment, and that will accomplish the purpose. If I were entirely convinced that we could not sustain a republican government in these States and keep them within this Union in any other way than by having the institution of slavery abolished, and I was inquired of whether I would insist upon that as a prerequisite and condition precedent to their reestablishment, I would say this: if I was perfectly convinced, fully satisfied in my own mind, that the constitutional amendment referred to would be adopted by the constitutional number of States, that would remove the occasion for the exercise of any such power on the part of Congress, but I do not know how that will be. That is a matter which lies in the future. Neither I nor any other man can tell when and how and in what manner it will take place, or whether it will ever take place at all. While things remain suspended in this condition I reserve to myself the right of exercising this power which I think in the extreme Congress constitutionally possesses. In what manner I shall exercise it will depend upon the occasion as it shall present itself. It will depend upon their desire to restore their former condition, how far they have returned to loyalty and allegiance, how far they have so shaped their institutions as to furnish security for the future that the peace would be kept. All these matters would have to be examined into in each case as it presented itself. Mr. DAVIS. I move to amend the amendment by striking out all after the word "that," where it first occurs, and inserting: The States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas, and Tennessee, are not entitled to representation in the Electoral College for the choice of President and Vice President for the term of office commencing on the 4th day of March, 1865; and no electoral votes shall be received or counted from said States concerning the choice of President and Vice President for the said term of office. The simple effect of my amendment to the amendment is to strike out the preamble and to leave the resolution just as the Committee on the Judiciary reported it. It seems to me that three fourths of the debate that has taken place upon the subject has originated out of the preamble. I think that there is a clear, indicated majority of the Senate in favor of the resolution, and that the Senate are ready to vote simply on the resolution. I do not intend to prolong the debate. I merely rise to announce what will be the effect of the amendment. As I believe that the preamble has given rise to the great body of the debate that has already occurred, I propose to cut off further discussion on the preamble by moving to strike it out, and bring the Senate to act directly and simply upon the resolution. The PRESIDING OFFICER, (Mr. CLARK in the chair.) The Chair will inquire of the Senator from Kentucky whether his amendment is a substitute for the original resolution and preamble. Mr. DAVIS. My amendment is an amendment to the amendment of the Senator from Vermont. Mr. TRUMBULL. I hope the Senator from Kentucky will not persist in his motion. We had a distinct vote yesterday on striking out the preamble. He and I desire to accomplish the same object. I think the debate is pretty much over, and if we can get to a vote we shall soon settle this matter, and it seems to me we had better adhere to the resolution as the Committee on the Judiciary have reported it back. There seems to be a disposition in the Senate to pass a resolution of some character, and we shall soonest accomplish our object by just voting for the proposition as it is. Perhaps it is not in the very best form. As an original proposition I cared nothing about the preamble, nor do I now, but still I think we shall the soonest get through by not offering amendments. I believe the Senate is about ready to vote; and the object to be accomplished seems to be acquiesced in, and that is, to prevent the counting of the votes of certain States. Mr. DAVIS. If the Senate will come to a vote without any further debate I will not press the amendment to the amendment. Mr. TRUMBULL. Let us try. Mr. DAVIS. Well, sir, I withdraw it, in the hope that we may come to a vote. Mr. SAULSBURY. I hope the honorable Senator from Kentucky will not withdraw it, but will accept a modification by inserting after "1865" the words "for the reason that there has been no valid election or appointment of electors of President and Vice President in any of those States." Mr. TRUMBULL. The Senator from Delaware will allow me to suggest that that is the very preamble now. Those very words that he proposes to put in are in the amendment reported by the Judiciary Committee. Mr. SAULSBURY. If that is so, very well. I was not aware of it. Mr. TRUMBULL. If the Senator will have the preamble read as it was concurred in in Committee of the Whole, I think it will satisfy him. Mr. JOHNSON. I am not about to continue the debate, but only to refer to a sentence or two in two of the books I have on my table. My friend from Vermont seems to suppose that what was said in the Convention that framed the Constitution in relation to the use of force against States had reference alone to the States as they existed under the Articles of Confederation. He will find that Mr. Madison-I read from his Debates-in that Convention, in speaking to what was proposed as a clause to be inserted in the Constitution, authorizing an exertion of the force of the whole against a delinquent State, spoke in this way: "He observed that the more he reflected on the use of force the more he doubted the practicability, the justice, and the efficacy of it when applied to people collectively, and not individually. A union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts to which it ought to be bound." Then he is speaking in reference to a proposed power in the Constitution of the Union, as we have it, to authorize the use of force against a State as such. Mr. COLLAMER. That was a proposition to carry into effect the Confederation. Mr. JOHNSON. No; it was in the Convention to adopt the Constitution. But I will not fatigue the Senate by going further into that subject. I stated yesterday that both the majority and the minority of the judges of the Supreme Court by whom the prize cases were decided, expressly negatived the idea of any authority to carry on a war or declare a war against any State of the Union. That will be seen first in the opinion of the majority on page 668, 2 Black's Reports, in which, speaking for the court, Mr. Justice Grier, who delivered the opinion, says: "By the Constitution Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare war against a foreign nation or a domestie State. But by the acts of Congress of February 28, 1795, and 3d of March, 1807, he is authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations and to suppress insurrection against the Government of a State or of the United States." And at page 693, Mr. Justice Nelson, who gave the opinion of the minority, says: "The acts of 1795 and 1807 did not, and could not, under the Constitution, confer on the President the power of declaring war against a State of this Union, or of deciding that war existed." And Congress has not undertaken to do it by the two acts referred to by the court or by the act of July 13, 1861. Those acts all profess to act exclusively under the clause of the Constitution which authorizes the employment of force to suppress an insurrection. The subject has been fully discussed in Congress; on the questions in issue between my friend from Vermont he has said all that can be said on his side, and I have endeavored to say what I could on the other. I shall not, therefore, detain the Senate by any further discussion. The PRESIDING OFFICER. The question is on the amendment of the Senator from Vermont, [Mr. COLLAMER.] The amendment was read, as follows: Strike out the preamble and resolution and insert the following: Resolved, &c., That the people of no State, the inhabitants whereof have been declared in a state of insurrection by virtue of the fifth section of the act entitled " Aa act further to provide for the collection of duties on imports, and for other purposes," approved July 13, 1861, shall be regarded as empowered to elect electors of President and Vice President of the United States until said condition of insurrection shall cease, and be so declared by virtue of the law of the United States, or until they shall be represented in both Houses of Congress; nor shall any vote cast by any such electors elected by the votes of the inhabitants of any such State, or the Legislature thereof, be received or counted. THE OFFICIAL PROCEEDINGS OF CONGRESS, PUBLISHED BY F. & J. RIVES, WASHINGTON, D. C. THIRTY-EIGHTH CONGRESS, 2D SESSION. The question being taken by the yeas and nays, resulted-yeas 13, nays 27, as follows: YEAS-Messrs. Anthony, Brown, Clark, Collamer, Dixon, Farwell, Foot, Harlan, Howard, Lane of Kansas, Ramsay, Sumner, and Wilson-13. NAYS-Messrs. Buckalew, Chandler, Conness, Cowan, Davis, Doolittle, Foster, Hale, Harris, Henderson, Hendricks, Howe, Johnson, Lane of Indiana, Morgan, Morrill, Nye, Pomeroy, Powell, Saulsbury, Sherman, Stewart, Ten Eyck, Trumbull, Van Winkle, Willey, and Wright-27. ABSENT-Messrs. Carlile, Grimes, Harding, Hicks, McDougall, Nesmith, Richardson, Riddle, Sprague, Wade, and Wilkinson-11. So the amendment was rejected. The joint resolution was reported to the Senate as amended. The PRESIDING OFFICER. The question is on concurring in the amendment made as in Committee of the Whole. Mr. HOWARD. I understand that is an amendment by which a part of the preamble was stricken out. I ask for the yeas and nays upon the amend ment. The yeas and nays were ordered. Mr. HOWARD. I hope the amendment will be read. The Secretary read the amendment, which was to strike out from the preamble the words "and have continued in a state of armed rebellion for more than three years, and were in said state of armed rebellion on the 8th day of November, 1864;" and in lieu of them to insert, "and were in such state of rebellion on the 8th day of November, 1864, that no valid election for electors of President and Vice President of the United States according to the Constitution and laws thereof was held therein on said day;" so as to make the preamble read as follows: Whereas the inhabitants and local authorities of the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas, and Tennessee rebelled against the Government of the United States, and were in such state of rebellion on the 8th day of November, 1864, that no valid election for electors of President and Vice President of the United States, according to the Constitution and laws thereof, was held therein on said day. Mr. POMEROY. I suppose it is in order to perfect the preamble before the question is taken on striking out? The PRESIDING OFFICER. It is in order to amend the amendment. The question is not on striking out the whole preamble. Mr. POMEROY. I propose to offer an amendment to which I think the chairman of the committee will not object; and that is, instead of saying that these States continued up to the 8th day of last November in such a state of armed rebellion that a valid election could not be held, to say simply that they were in such a condition that a valid election could not be held. My amendment is to strike out the words "state of rebellion" and insert "condition." These States were not all in rebellion then; but I will admit that they were in such a condition that they could not vote. Mr. HOWARD. I had supposed that the amendment suggested by the Committee on the Judiciary, on which we are now again to vote, was simply to strike out a portion of the preamble and not to substitute anything in its place. I perceive that in that respect I was mistaken, and that there is a substitution of other words which satisfy me. I shall therefore vote for the amendment of the committee. Mr. TRUMBULL. I have no right to accept the amendment of the Senator from Kansas, which is only to insert the word "condition" in place of the words "state of rebellion," so as to declare that these States were in such a condition that no valid election could be held. I had no objection to that individually, and as it seems to be more satisfactory to some members of the Senate and does not alter the meaning of the resolution or preamble, I shall not object to it. The preamble, if thus amended, will then read that certain States rebelled against the Government and were in such a condition on the 8th of November last that no valid election could be held. I am satisfied with that as an individual. Mr. COLLAMER. I do not see the propriety TUESDAY, FEBRUARY 7, 1865. of this change. It says they rebelled at such a time and were in a bad condition on the 8th of November. What the condition was it does not state. Was it a bad condition of health? Mr. HALE. I think the history of the Senate affords a precedent for the phraseology that is to be used here. It was once stated in a certain case on the floor of the Senate that certain members did not belong to a healthy political organization. [Laughter.] Mr. POMEROY. The object which I desire to accomplish is a simple one. I do not like to state in the preamble what is not true. That the local authorities of these States did rebel against the Government four years ago I have no doubt; but that all of them continued that rebellion up to the 8th day of November last is not true, and there is no use in saying that it is. For instance, in the State of Arkansas-and the same may be true of Louisiana-the local authorities that rebelled have not been inside of the State within a year. Then how could they have been in rebellion in that State on the 8th day of November last? The progress of our armies has been such that they were not there; and for us to say in this preamble that they continued in a state of rebellion up to that time is not true. I am willing to say that the disorganized condition of these States, and the fact that they had not been recognized by the General Government, left them in such a condition that it was not expedient to hold an election. I am willing to say that, because I think that it is true. The other statement is not true, and that is the reason I do not wish to make it. The PRESIDING OFFICER. The question is on the amendment of the Senator from Kansas to the amendment made as in Committee of the Whole. Mr. JOHNSON. With due deference to the Senator from Kansas, I beg to say that it by no means follows because the authorities of the State of Arkansas were driven out of Arkansas, that they are not in a state of rebellion. You might have driven all the inhabitants of Arkansas and all the authorities out, and they still be waging war against the United States. In fact I suppose, as far as the authorities are concerned, that is true-I mean the authorities existing under the Government of Arkansas at the time the rebellion commenced. Mr. POMEROY. They abandoned the State. The local authority is confined to the State. Mr. JOHNSON. They abandoned the State because they were driven out of it. Mr. POMEROY. They were not driven out as local authorities, but as individuals. Mr. JOHNSON. They could not have been driven out otherwise. Still in point of fact when they were driven out, they were local authorities. Mr. POMEROY. Yes. Mr. JOHNSON. And in point of fact they were on the 8th of November in a state of rebellion; that is to say, they were warring against the United States, either collectively or individually. It is not strictly true to the letter that all the inhabitants and all the local authorities of any one of these States were in a state of rebellion on the 8th of November. There were a great many loyal citizens in each one of the States, and there may have been among the local authorities some loyal citizens who were driven by force to take part in the insurrection. But in point of law, as we have already said in the act of July 13th, 1861, and as the President has said in his proclamation issued in pursuance of that act, so far as our power to put down insurrection by force of arms is concerned, they were in a state of insurrection; and then the question comes back whether a State whose inhabitants are collectively for the most part in a state of insurrection (that is to say, are opposing the laws of the United States, and who are supported in that opposition by the local authorities, such as they are,) can elect electors. Mr. POMEROY. The local authorities to which I referred were the rebel authorities. They never had but one election in the State that I alluded to since the rebellion, and their governor has NEW SERIES.....No. 38. been killed and the whole thing destroyed. It is not true that these rebel local authorities were in a condition to make war even outside of the State on the 8th day of last November. The real local authorities were loyal Union men; and for us to say that the real local authorities of that State' were in rebellion on the 8th day of last November will be saying what is not true. In the first place, the term of office of the old local authorities had expired by limitation; and in the second place,' the chief men in that government were not alive to exert any influence if they were disposed to do To say that they made war on the Govern-' ment on the 8th day of last Novomber, or were in a condition to do so, is saying what cannot be true; and that our local authorities made war on the Government is equally untrue. I am willing to say that these parties not having been recog nized or countenanced by the Government, were in such a condition that they could not hold an election, and with that amendment I propose to sustain the resolution. I ask for the yeas and nays on my amendment to the amendment. The yeas and nays were ordered. So. Mr. DOOLITTLE. I suggest to the Senator from Kansas, and to Senators around me, to avoid any trouble about the recitals in the preamble, that we strike out the preamble and just put the names of the States we intend to exclule from the Electoral College into the enactment and let it go at that. Mr. TRUMBULL. We have had a direct vote on that, and now we are having a controversy about a matter which I am sure if the resolution was printed and laid before Senators there would be no controversy in regard to. The question now pending is simply whether the word "condition" shall be used in place of the words "state of rebellion." The Senator from Vermont thinks it very objectionable because he supposes it may refer to the health of the States in some way. The word "condition" is to be understood in the connection in which it is used; and the previous language of the preamble explains it. It seems to me nobody can misunderstand it who does not want to misunderstand it, with the resolution before him. The preamble now recites that the States of Arkansas, Tennessee, and others, rebelled against the Government of the United States, and were in such state of rebellion that no valid election was held in November last. The Senator from Kansas objects to that because he thinks all those States were not in a state of rebellion on the 8th of November; but he admits that the condition of things was such that no valid election could be held, and he wants to change the words "state of rebellion" to the word "condition." Does that alter the effect of the resolution, or does it alter the effect of the preamble? If it would satisfy the Senator from Kansas, I was quite willing that it should be adopted. I can see no possible objection to adopting his amendment, and then we shall be done with the controversy. The question being taken by yeas and nays resulted-yeas 26, nays 13; as follows: YEAS-Messrs. Anthony, Brown, Buckalew, Chanler, Clark, Conness, Davis, Dixon, Doolittle, Farwell, Foot, Harlan, Harris, Henderson, Hendricks, Lane of Kansas, Morgan, Pomeroy, Powell, Ramsey, Saulsbury, Sherman, Trumbull, Van Winkle, Willey, and Wilson-26. NAYS-Messrs. Collamer, Cowan, Foster, Grimes, Hale, Howard, Johnson, Morrill, Nye, Stewart, Ten Eyck, Wade, and Wright-13. ABSENT-Messrs. Carlile, Harding, Hicks, Howe, Lane of Indiana, McDougall, Nesmith, Richardson, Riddle, Sprague, Sumner, and Wilkinson-12. So the amendment to the amendment was agreed to. Mr. LANE, of Kansas. I desire to move to strike out the preamble, and insert after the word "States," in the resolution, the names of the States recited in the preamble. The PRESIDING OFFICER. The first question is on concurring in the amendment made as in Committee of the Whole as it has been amended. Mr. DOOLITTLE. It is true that yesterday the Senator from Kansas made a motion to strike out the names of those States from the preamble; |
