“And here the question occurs, How shall this rightful jurisdiction be
established in the vacated States? Some there are, so impassioned for
State rights, and so anxious for forms even at the expense of substance,
that they insist upon the instant restoration of the old State
governments in all their parts, through the agency of loyal citizens,
who meanwhile must be protected in this work of restoration. But
assuming that all this is practicable, as it clearly is not, it
attributes to the loyal citizens of a Rebel State, however few in
numbers,—it may be an insignificant minority,—a power clearly
inconsistent with the received principle of popular government, that the
majority must rule, ... but the argument for State Rights assumes that
all these rights may be lodged in voters as few in number as ever
controlled a rotten borough of England.
“Pray admitting that a minority may organize the new government, how
shall it be done? and by whom shall it be set in motion?... It is not
easy to see how the new government can be set in motion without a resort
to some revolutionary proceeding, instituted either by the citizens or
by the military power,—unless Congress, in the exercise of its plenary
powers, should undertake to organize the new jurisdiction.
“But every revolutionary proceeding is to be avoided. It will be within
the recollection of all familiar with our history, that our fathers,
while regulating the separation of the Colonies from the parent country,
were careful that all should be done according to the forms of law, so
that the thread of _legality_ should continue unbroken. To this end the
Continental Congress interfered by a supervising direction. But the Tory
argument in that day denied the power of Congress as earnestly as it
denies this power now.”...
“But, happily,” he says, “we are not constrained to any such
revolutionary proceeding. The new governments can all be organized by
Congress, which is the natural guardian of people without any immediate
government, and within the jurisdiction of the Constitution of the
United States. Indeed, with the State governments already _vacated_ by
rebellion, the Constitution becomes, for the time, the supreme and only
law, binding alike on President and Congress, so that neither can
establish any law or institution incompatible with it. And the whole
Rebel region, deprived of all local government, lapses under the
exclusive jurisdiction of Congress, precisely as any other territory;
or, in other words, the lifting of the local governments leaves the
whole vast region without any other government than Congress, unless the
President should undertake to govern it by military power.”...
This part of the essay concludes with a declaration that its author had
no pride of opinion, but would cheerfully abandon his views when
convinced of their error. He next proceeds to an examination of the
sources of Congressional power. These, he asserts, are derived from the
necessity of the case, for Congress must have jurisdiction over every
portion of the United States _where there is no other government_; and
from the _Rights of War_, which he deemed not less abundant for Congress
than for the President. “It is Congress,” he contended, “that conquers;
and the same authority that conquers must govern.” A third source of
authority, common alike to Congress and the President, was the
constitutional provision imposing on the United States the duty of
guarantying republican forms of government. These ample powers were
confirmed by an additional grant in the clause concerning the admission
of new States “into this Union.” The latter left it with Congress to
prescribe the time and manner of the return of the rebel States,
assuming that they were no longer _de facto_ States of the Union.
Among the “unanswerable reasons for Congressional governments” the
article says: “Slavery is so odious that it can exist only by virtue of
positive law, plain and unequivocal; but no such words can be found in
the Constitution. Therefore Slavery is impossible within the exclusive
jurisdiction of the National Government.... I am glad to believe that it
is implied, if not expressed, in the Chicago Platform; ... but if the
rebel territory falls under the exclusive jurisdiction of the National
Government, then Slavery will be impossible there.... The moment that
the States fell, Slavery fell also; so that, even without any
Proclamation of the President, Slavery had ceased to have a legal and
constitutional existence in every rebel State.”[291]
“Let it be established in advance,” declared Mr. Sumner, “as an
inseparable incident to every Act of Secession, that it is not only
impotent against the Constitution of the United States, but that, on its
occurrence, both soil and inhabitants will lapse beneath the
jurisdiction of Congress, and no State will ever again pretend to
secede.”
The argument of which an epitome has been given was regarded by the
Postmaster-General, Montgomery Blair, as formidable enough to merit
attention, and he accordingly replied in a speech at Rockville,
Maryland, in which Sumner, for arraying himself directly against the
President on a question of fundamental policy in the conduct of the war,
was mentioned with sharp censure. This brought upon the Cabinet member,
and upon Mr. Lincoln over his shoulders, much vehement criticism. It was
in relation to this address that the President said:
The controversy between the two sets of men represented by Blair and
by Sumner is one of mere form and little else. I do not think Mr.
Blair would agree that the States in rebellion are to be permitted
to come at once into the political family and renew their
performances, which have already so bedeviled us, and I do not think
Mr. Sumner would insist that when the loyal people of a State obtain
supremacy in their councils and are ready to assume the direction of
their own affairs they should be excluded. I do not understand Mr.
Blair to admit that Jefferson Davis may take his seat in Congress
again as a representative of his people. I do not understand Mr.
Sumner to assert that John Minor Botts may not. So far as I
understand Mr. Sumner, he seems in favor of Congress taking from the
Executive the power it at present exercises over insurrectionary
districts and assuming it to itself; but when the vital question
arises as to the right and privilege of the people of these States
to govern themselves, I apprehend there will be little difference
among loyal men. The question at once is presented, In whom is this
power vested? and the practical matter for discussion is how to keep
the rebellious population from overwhelming and outvoting the loyal
minority.[292]
Concisely expressed, the theory of State suicide based reconstruction
upon the right of Congress to legislate for Federal territories and to
admit new States into this Union. In one view it rested on a provision
in the Constitution which makes it obligatory on the States to have
republican governments. This side of the doctrine shaded into the
conservative view, according to which it is the duty of the States to be
represented in Congress; but Sumner, as will subsequently appear,
maintained that the Confederate States should not be counted when
numbers were to be estimated in the adoption of constitutional
amendments; also that Congress had power to prescribe the qualifications
of voters for conventions in those States. This view regarded the war as
a conflict of ideas; it assumed to find authority in the individual
conscience discerning the will of God, was inclined to disallow
objective standards, and to consider all law as matter of subjective
determination. From a careful perusal of his speeches Mr. Sumner appears
to have insisted that a republican form of government could be such a
one only as conformed to his subjective ideas. Except his own State,
whose constitution of 1780 was held to have abolished slavery in that
Commonwealth, no one of the States in 1789 possessed, according to his
notions, a republican form of government. His touchstone of
republicanism was the Declaration of Independence. In short, the
requirements of the Constitution appear to have been found, not in the
written instrument, but in his individual conceptions of political
justice, equality and liberty whereby he constituted himself a new
source of law. In the matter of a subjective standard of natural justice
and the like, the “radicals” generally agreed with Sumner.[293]
The position that the object of the war from the beginning, on the part
of the Federal authorities, was to fulfill the guaranty of a republican
form of government is untenable. It may well be doubted whether the
community so guaranteed can be restricted to any particular government;
indeed, it is difficult to see how a government not voluntarily
instituted by the people of a State can be called republican. By having
a government imposed by Congress they would resemble the people of a
Territory, and the result would be an inequality among the States
composing the Union.
Though it has been commended as well written, there is some crude
thinking and even cruder phraseology in the preamble as well as in the
resolutions themselves. Mr. Sumner appears to have been much influenced
by feudal and other historical analogies. It will be seen later how he
recoiled somewhat from accepting fully the consequences of his own
principles.[294] The famous theory of State suicide, as tersely stated
by an able advocate of the doctrine, was in effect that “a Territory by
coming into the Union becomes a State; a State by going out of the Union
becomes a Territory.”[295]
To offset the resolutions of Sumner, Hon. Garrett Davis, of Kentucky,
introduced two days later a series of eight propositions. Of these the
first asserts that the rights, privileges and liberties which the
Constitution assures to the people of the United States “are fixed,
permanent, and immutable through all the phases of peace and war, until
changed by the power and in the mode prescribed by the Constitution
itself.”
In the light of subsequent events, however, the last is the most
interesting of the series. This declares “That the United States
Government should march their armies into all the insurgent States, and
promptly put down the military power which they have arrayed against it,
and give protection and security to the loyal men thereof, to enable
them to reconstruct their legitimate State governments, and bring them
and the people back to the Union and to obedience and duty under the
Constitution and the laws of the United States, bearing the sword in one
hand and the olive branch in the other, and whilst inflicting on the
guilty leaders condign and exemplary punishment, granting amnesty and
oblivion to the comparatively innocent masses; and if the people of any
State cannot, or will not reconstruct their State government and return
to loyalty and duty, Congress should provide a government for such State
as a Territory of the United States, securing to the people thereof
their appropriate constitutional rights.”[296]
These propositions, like the resolutions of Sumner, were never taken up
for discussion, and they are referred to as containing a clear
expression, by a Southern Democrat,[297] of extra-constitutional powers
in treating incorrigible States as Territories.
Sumner was not alone in maintaining novel opinions concerning the
relation of the seceded States to the Federal Government. A theory
destined to exert even greater influence in shaping the plan of
reconstruction finally adopted was announced at the very commencement of
hostilities by Thaddeus Stevens, of Pennsylvania, then one of the
foremost members of the Republican party and a few years later its
acknowledged leader in the House. Unlike the Massachusetts Senator, Mr.
Stevens never formulated his views of State status; but as he urged them
on almost every conceivable occasion the essential principles of his
system may be easily collected from his numerous speeches in Congress.
Subjects of legislation only remotely related to his favorite topic
appear to have been regarded by him as important chiefly because of the
opportunity afforded to express his sentiments on the measures necessary
to reorganization. These opinions, he declared, had been deliberately
formed; we know that to the end they were persistently urged and ably
defended. Because of their radical nature and the frequency with which
they were reiterated Stevens was by many regarded as a sort of fanatic;
this estimate was confirmed, no doubt, by his bodily deformity as well
as by an apparent want of amiability and a certain bluntness of
expression. Even by keen observers he was at first considered a man of
mediocre ability. But, though not to be compared with the giant race of
an earlier generation, he was a statesman far above the common-place.
Among the multitude of plans and theories offered in Congress his system
was distinguished for the harmony of its parts; and enemies who hated,
no less than followers who feared, him were forced to admit the
consistency of his principles.
The limitations of Stevens in the field of constructive statesmanship
cannot now be discussed; for their consideration belongs properly to an
examination of the first reconstruction act, which was no more than a
modification of his theory. Long before Sumner’s plan had agitated timid
conservatives the Pennsylvanian leader by his extreme opinions had
astonished Congress. When the question of discharging from labor or
service those slaves employed in hostility to the United States came
before the House at the special session beginning July 4, 1861, Stevens
said:
Mr. Speaker, I thought the time had come when the laws of war were
to govern our action; when constitutions, if they stood in the way
of the laws of war in dealing with the enemy, had no right to
intervene. Who pleads the Constitution against our proposed action?
Who says the Constitution must come in, in bar of our action? It is
the advocates of rebels, of rebels who have sought to overthrow the
Constitution and trample it in the dust—who repudiate the
Constitution. Sir, these rebels, who have disregarded and set at
defiance that instrument, are, by every rule of municipal and
international law, estopped from pleading it against our action.
Who, then, is it that comes to us and says, “You cannot do this
thing, because your Constitution does not permit it?” The
Constitution! Our Constitution, which you repudiate and trample
under foot, forbids it! Sir, it is an absurdity. There must be a
party in court to plead it, and that party, to be entitled to plead
it in court, must first acknowledge its supremacy, or he has no
business to be in court at all. I repeat, then, that those who bring
in this plea here, in bar of our action, are the advocates of
rebels. They are nothing else, whatever they intend. I mean it, of
course, in a legal sense. I mean they are acting in the capacity of
counsellors-at-law for the rebels; they are speaking for them, and
not for us—who are the plaintiffs in this transaction. I deny that
they have any right to plead at all. I deny that they have any
standing in court. I deny that they have any right to invoke this
Constitution, which they deny has authority over them, which they
set at defiance and trample under foot. I deny that they can be
permitted to come here and tell us we must be loyal to the
Constitution.[298]
The expectation almost universally cherished at this time was that when
the insurrection should have been suppressed, as it was confidently
believed it speedily would be, the erring States, without the
interposition of Federal authority, would resume their normal relations
to the General Government. With this state of public opinion in mind it
will readily be perceived how great an interval separated Mr. Stevens
from both parties in Congress. The opening sentence of the remarks
quoted contains the essential idea of his theory of the change resulting
from rebellion. Armed secession had unlocked the war powers, and the
Constitution, where it conflicted with these powers, had ceased to be a
restraint upon government. The military had risen superior to the civil
authority. The principle was boldly and emphatically announced that
those who repudiated and defied the supreme law could not at the same
time plead its provisions.
On January 8, 1863, the appropriation bill being under consideration, an
amendment was offered to add to the clause “for compensation of
thirty-three commissioners, at $3,000 each, and eleven clerks, at $1,200
each, $112,200,” the following:
_Provided_, A sufficient sum shall be collected in the
insurrectionary States to pay said salaries: _And provided further_,
That no greater sum shall at any time be paid to said commissioners,
or to any of them, than shall have been collected from the taxes in
the insurrectionary States, and paid into the Treasury of the United
States.[299]
The discussion which ensued brought out an expression of views relative
to the position of the seceded States under the Federal Government.
Stevens in the course of his remarks said: “I did say, sir, that I find
no warrant in the Constitution for the admission, under the
Constitution, of West Virginia. I do not know whether the gentleman from
Kentucky voted for that bill or not.” Mr. Dunlap, the member referred
to, stated that he had voted against the bill, because he deemed it
unconstitutional. After this explanation the Pennsylvania leader
proceeded as follows:
Then the gentleman voted against it upon the same opinion I
expressed, that it was unconstitutional. But I went further and
voted for it because I did not believe that the Constitution
embraced a State now in arms against the Government of this Union
and I hold that doctrine now. It was not said upon the spur of the
occasion. It is a deliberate opinion, formed upon a careful
examination of the law of the United States and the laws of nations.
Though it may be out of place just now, I will give one or two
reasons for my opinion. The establishment of our blockade admitted
the Southern States, the Confederates, to be a belligerent power.
Foreign nations have all admitted them as a belligerent power.
Whenever that came to be admitted by us and by foreign nations, it
placed the rebellious States precisely in the condition of an alien
enemy with regard to duties and obligations. Now, I think there is
nothing more plainly written in the law of nations than that
whenever a war, which is admitted to be a national war, springs up
between nation and nation, ally and ally, confederate and
confederate, every obligation which previously existed between them,
whether treaty, compact, contract, or anything else, is wholly
abrogated, and from that moment the belligerents act toward each
other, not according to any municipal obligations, not according to
any compacts or treaties, but simply according to the laws of war.
And I hold and maintain that with regard to all the Southern States
in rebellion. I do not speak of Kentucky, but of those States which
have gone out under an act of legislation or convention—the
Constitution has no binding influence and no application.
In answer to a question by Representative Dunlap he stated further that
the seceded States, in his opinion, were not members of the Union. “The
ordinances of secession,” he added, “backed by the armed power which
made them a belligerent nation, did take them, so far as present
operations are concerned, from under the laws of the nation.” When asked
how, as Chairman of the Committee of Ways and Means, he proposed to pass
an appropriation to pay officers to collect revenue in States which did
not belong to the Union, he said:
I propose to levy that tax, and collect it as a war measure. I would
levy a tax wherever I can upon these conquered provinces, just as
all nations levy them upon provinces and nations they conquer. If my
views and principles are right, I would not only collect that tax,
but I would, as a necessary war measure, take every particle of
property, real and personal, life estate and reversion, of every
disloyal man, and sell it for the benefit of the nation in carrying
on this war. We have such power and we are to treat them simply as
provinces to be conquered, and as a nation fighting in hostility to
us until we do conquer them. To me it is a great absurdity to say
that men, by millions, in arms, shall claim the protection of the
provisions of the Constitution and laws made for loyal men, while
they do not obey one of those laws, but repudiate their binding
effect. There never was a principle more clear than that every
obligation, whether in a national or civil point of view, in order
to be binding, must be reciprocal; and that the moment the duty
ceases upon the one part, the obligation ceases upon the other; and
that, in my judgment, is precisely the condition of the rebel States
now.
The secession ordinance of South Carolina he characterized in response
to an inquiry as an act of treason and rebellion, and when asked whether
the backing up of these ordinances by armed force imparted to them any
validity, he replied: “I hold that so long as they remain in force
against us as a belligerent power, and until they are conquered, it is
in fact an existing operation. I will not say anything about its
legality. [Laughter.] I hold that it is an existing _fact_, and that so
far from enforcing any laws, you have not the power.”
To Mr. Yeaman, who asked whether those people were then citizens of the
United States, or whether they formed an independent nation, and if the
latter whence was derived the right or the authority to wage war against
them, and to tax them for the support of that war, Stevens answered: “I
hold that the Constitution, in the first place, so far operated that
when they went into secession and armed rebellion they committed
treason; and that when they so combined themselves as to make themselves
admitted as belligerents—not merely as men in insurrection, but as
belligerents—they did acquire the right to be treated as prisoners of
war, and all the other rights which pertain to belligerents under the
laws of nations.”
Some members held in utter abhorrence the principles of the Pennsylvania
leader; others were astonished at their boldness. It was in the course
of this discussion, participated in by many Representatives, that
Stevens defined his existing as well as his past relations to his party,
and referred, not without a touch of pride, to the fact that hitherto he
had pointed out the way for the Republican majority—in short, that he
had been the political prophet of his party. He declared:
I know perfectly well, as I said before, I do not speak the
sentiments of this side of the House as a party. I know more than
that: that for the last fifteen years I have always been a step
ahead of the party I have acted with in these matters; but I have
never been so far ahead with the exception of the principles I now
enunciate, but that the members of the party have overtaken me and
gone ahead; and they, together with the gentleman from New York,
[Mr. Olin] will again overtake me and go with me, before this
infamous and bloody rebellion is ended. They will find that they
cannot execute the Constitution in the seceding States; that it is a
total nullity there; and that this war must be carried on upon
principles wholly independent of it. They will come to the
conclusion that the adoption of the measures I advocated at the
outset of the war, the arming of the negroes, the slaves of the
rebels, is the only way left on earth in which these rebels can be
exterminated. They will find that they must treat those States now
outside of the Union as conquered provinces and settle them with new
men, and drive the present rebels as exiles from this country; for I
tell you they have the pluck and endurance for which I gave them
credit a year and a half ago in a speech which I made, but which was
not relished on this side of the House, nor by the people in the
free States. They have such determination, energy, and endurance,
that nothing but actual extermination or exile or starvation will
ever induce them to surrender to this Government. I do not ask
gentlemen to indorse my views, nor do I speak for anybody but
myself; but in order that I may have some credit for sagacity, I ask
that gentlemen will write this down in their memories. It will not
be two years before they will call it up, or before they will adopt
my views, or adopt the other alternative of a disgraceful submission
by this side of the country.[300]
For himself, for the Administration and for the Republican party even so
radical an anti-slavery man as Owen Lovejoy made haste to repudiate
these extreme opinions.
In debate, January 22, 1864, Stevens enunciated still more clearly the
fundamental principles of his system. “I mean to say,” he declared on
that occasion, “that if a State, as a State, makes war upon the
Government and becomes a belligerent power, we treat it as a foreign
nation, and when we conquer it we treat it just as we do any other
foreign nation.” “There can be no neutrals,” he added, “in a hostile
State.” If loyal people domiciled in the South desired to avoid
punishment or the hardships of public enemies, they should change their
place of residence.
Relative to discerning the State in the Union minority he observed: “If
ten men fit to save Sodom can elect a Governor and other State officers
for and against the eleven hundred thousand Sodomites in Virginia, then
the democratic doctrine that the majority shall rule is discarded and
dangerously ignored. When the doctrine that the _quality_ and not the
_number_ of voters is to decide the right to govern, then we are no
longer a republic, but the worst form of despotism.” It was a mere
mockery, he affirmed, to say that a tithe of the residents, because they
were holier or more loyal than others, could change the form and
administer the government of an organized State. The people who took a
State out of the Union were subject to the laws of the commonwealth,
and, so far as the General Government is concerned, subject to the laws
of war and of nations, both while the war continued and when it
ended.[301]
Northern Democrats, from the beginning to the end of reconstruction,
were consistent advocates of a doctrine which involved no contradictions
like the system of Sumner and no element of vindictiveness like the
“conquered province” theory of Stevens. Ordinances of secession they
held to be null and void; these measures in no way impaired the vitality
or contracted the scope of the Constitution because the power by which
they were temporarily maintained, however near to attaining its object,
had not been crowned with success. The result of the conflict could
alone determine whether the bond of union between the seceding and the
loyal States had been severed. Armed resistance to the supreme law was
treason in those so engaged, even though such resistance was decreed by
States. _Ante bellum_ relations would continue unimpaired if the General
Government succeeded in suppressing the rebellion. This doctrine, once a
State in the Union always a State, was, so far, in harmony with the
policy adopted by the Administration at the commencement of hostilities.
With all the following propositions, however, the policy of the
Government was not in entire accord, nor, indeed, was it in exact
conformity with the principles above ascribed to the President. The
people of a State, the Democratic leaders asserted, are the State, in
the widest sense of that term, and they make its fundamental law; to be
their constitution it must be their unrestrained and voluntary act, not
a result of coercion or intimidation. When they have freely acted, then
the only essential conditions of a State constitution, in its Federal
relations, are that it should be republican in form and not conflict
with the Constitution of the United States. South Carolina, for example,
was made a member of the Union by the Constitution and the consent of
her people; except successful revolution no other power could unmake
her. That revolution being unsuccessful she was still in the Union. The
idea that a State was partly out of and partly in the Union, Democratic
doctrine regarded as an absurdity. State officers, indeed, could commit
suicide; a majority of its people could commit suicide; but the State
did not, therefore, cease to exist, for the idea of a State involved the
fourfold notion of a defined territory, people occupying it, functions
constituting a system of government and officers to administer it.
Representative Joseph K. Edgerton, of Indiana, in an able speech
delivered February 20, 1865, said that he accepted the principle of
President Lincoln’s inaugural and only regretted that after so clear and
sound a statement of constitutional law and good intentions the
President had subsequently come to the same conclusion as Mr. Stevens.
The theory then announced was the only one consistent with the true
constitutional idea that the Federal Union is a perpetual union of
States, and that each State, as an individual member of the Union, has
in itself the same element of perpetuity that belongs to the aggregate
Republic formed by the Federal union of States. The Union can be held to
be perpetual only on the principle that the States composing it are
perpetual corporations or bodies politic, and indestructible by any act
of the aggregate body or by their own act. The States united cannot
destroy a single commonwealth; power to do that is power to consolidate
the States into one. A single member cannot destroy the Union; power to
do that is power to secede, and neither consolidation nor secession is a
principle of the Union. Here we have in amplified form the celebrated
declaration of Chief Justice Chase, that the Constitution in all its
provisions contemplates “an indestructible union of indestructible
States.”[302] For a different though a very able presentation of
Democratic theory the reader is referred to the address of Mr. Pendleton
on the bill to guarantee republican forms of government to the
rebellious States.[303]
Though this theory of a perpetual Union was the one almost universally
held at the beginning of the war, it came during the progress of the
conflict to be little regarded by the dominant party in Congress; by
Republican leaders it was soon cast aside with indignation or contempt;
it remained unaltered when their views of State status were adapted to
changed conditions, and the Democratic organization, so far at least as
reconstruction was concerned, settled down into little more than a party
of protest.
The silence in which Sumner’s propositions were received may be regarded
as a negative testimony to the conservative sentiments of Senators even
after war had existed for nearly a year; the House, however, just twelve
months before the Massachusetts Senator offered his plan, February 11,
1861, made a positive declaration of its opinion relative to the
limitations of Federal authority by passing unanimously the following
resolution: “That neither Congress, nor the people or the governments of
the non-slaveholding States, have the right to legislate upon or
interfere with slavery in any of the slaveholding States in the
Union.”[304] This deliberate expression establishes beyond question the
fact that the Constitution, as then understood, gave no authority to the
Federal Government to interfere with, control or regulate relations
between master and slave in any State which recognized the right of
property in man. On this subject the people were practically unanimous,
their Representatives entirely so. Even three months of war, with all
the antagonisms and all the bitterness excited, failed to shake this
conviction.
On July 22, 1861, the day after the disaster at Bull Run, Representative
Crittenden, of Kentucky, introduced the following resolution:
That the present deplorable civil war has been forced upon the
country by the disunionists of the Southern States, now in arms
against the constitutional Government, and in arms around the
capital; that in this national emergency, Congress, banishing all
feelings of mere passion or resentment, will recollect only its duty
to the whole country; that this war is not waged on their part in
any spirit of oppression, or for any purpose of conquest or
subjugation, or purpose of overthrowing or interfering with the
rights or established institutions of those States, but to defend
and maintain the _supremacy_ of the Constitution, and to preserve
the Union with all the dignity, equality, and rights of the several
States unimpaired; and that as soon as these objects are
accomplished the war ought to cease.
Only two votes were recorded against it.[305] Four days later Andrew
Johnson offered in the upper House a resolution in nearly the same
language, and it was opposed by only five Senators. There is little
doubt that this practical unanimity in Congress reflected the sentiment
of almost the entire North. This conspicuous landmark, so frequently
referred to before the reunion was completed, will be useful to show how
far the warring factions drifted during the progress of the conflict.
Senator Trumbull, of Illinois, who disliked certain expressions in the
form in which it was proposed, said, relative to the object of the war
as declared by the resolution:
I trust this war is prosecuted for the purpose of subjugating all
rebels and traitors who are in arms against the Government. What do
you mean by “subjugation”? I know that persons in the Southern
States have sought to make this a controversy between States and the
Federal Government, and have talked about coercing States and
subjugating States; but, sir, it has never been proposed, so far as
I know, on the part of the Union people of the United States, to
subjugate States or coerce States. It is proposed, however, to
subjugate citizens who are standing out in defiance of the laws of
the Union, and to coerce them into obedience to the laws of the
Union. I dislike that word in this connection. In its broadest sense
I am opposed to it. If it means the war is not for the purpose of
the subjugation of traitors and rebels into obedience to the laws,
then I am opposed to it. I trust the war is prosecuted for that very
purpose. I move to strike out the words “and in arms around the
capital,” and also the words “or subjugation.”[306]
Mr. Harris, of New York, said: “If slavery shall be abolished, shall be
overthrown as a consequence of this war, I shall not shed a tear over
that result; but, sir, it is not the purpose of the Government to
prosecute this war for the purpose of overthrowing slavery. If it comes
as a consequence, let it come; but it is not an end of the war.”[307]
In the succeeding chapter will be traced with some degree of fullness
the sentiments on reconstruction, in July, 1864, not only of the
majority but of every important element composing Congress. The position
then attained by the average Republican member, it must be repeated, was
not reached at a single bound. Its progress has been described in the
preceding pages. The vote on the Crittenden resolution marks the
starting point. There was then, though war had existed for three months,
no diversity of opinion worthy of notice. The successive advances from
the declaration, February 11, 1861, that neither Congress nor the
governments of the free States had a constitutional right to interfere
with slavery in any slaveholding State of the Union to the passage by
both Houses, July 2, 1864, of the Wade-Davis bill, which proposed by
Federal law to regulate the franchise in the rebellious States, to
appoint provisional governors (empowered to dissolve State conventions),
and to prescribe provisions for their local constitutions, form one of
the most instructive commentaries on the importance of necessity as a
principle of constitutional interpretation.
A resolution introduced December 4, 1861, by Mr. Holman, of Indiana, for
the purpose of getting the House to re-affirm the Crittenden
propositions of July 22 preceding, was tabled by a vote of 71 to
65.[308]
A discussion of the various theories of reconstruction might seem to
require in this place, by way of anticipation, at least a summary of the
Congressional plan; but as this was the mode of reorganization which was
finally imposed on the South it is preferred to present its development
chronologically and to consider it apart. Several of the remaining
chapters will be devoted to an account of its successive modifications
until the subject was taken, in December, 1865, altogether out of
Executive hands.
-----
Footnote 282:
McPherson’s Pol. Hist., p. 106.
Footnote 283:
McPherson’s Pol. Hist., p. 129.
Footnote 284:
Ibid., p. 125.
Footnote 285:
See p. 73, _ante_.
Footnote 286:
McPherson’s Pol. Hist., pp. 322–323.
Footnote 287:
Memoir of Charles Sumner by E. L. Pierce, Vol. IV. pp. 74–75.
Footnote 288:
General Richard Taylor in Destruction and Reconstruction, p. 245.
Footnote 289:
Blaine, Twenty Years of Congress, Vol. II. p. 114.
Footnote 290:
Memoir of Sumner by E. L. Pierce, Vol. IV. p. 143.
Footnote 291:
Mr. Sumner, notwithstanding this view, proposed to enact the
Emancipation Proclamation into a law. See pp. 272–273 _infra_.
Footnote 292:
N. and H., Vol. IX. pp. 335–336.
Footnote 293:
In his Theory of our National Existence (_passim_) and in the American
Law Review for January, 1865, Mr. John C. Hurd has much keen criticism
of the reconstruction theories of Sumner and others.
Footnote 294:
Colloquy with Senator Doolittle, December 19, 1866, Cong. Globe, p.
192.
Footnote 295:
Brownson’s American Republic, p. 308.
Footnote 296:
McPherson’s Pol. Hist., p. 323.
Footnote 297:
Mr. Davis is sometimes classed as a Unionist.
Footnote 298:
Globe, 1 Sess. 37th Cong., p. 414.
Footnote 299:
Globe, Part I., 3 Sess. 37th Cong., p. 238.
Footnote 300:
Globe, Part I., 1 Sess. 37th Cong., pp. 239–243.
Footnote 301:
Globe, Part I., 1 Sess. 38th Cong., p. 317.
Footnote 302:
Texas vs. White, 7 Wall., p. 725.
Footnote 303:
See Chapter VII., pp. 257–261, _infra_.
Footnote 304:
Globe, Part I., 2 Sess. 36th Cong., p. 857.
Footnote 305:
Globe, 1 Sess. 37th Cong., pp. 222–223.
Footnote 306:
Ibid., p. 258.
Footnote 307:
Globe, 1 Sess. 37th Cong., p. 259.
Footnote 308:
Ann. Cycl., 1862, p. 277.
VII
RISE OF THE CONGRESSIONAL PLAN
A previous chapter, in relating the military events which succeeded the
disaster at Chickamauga, noticed a suggestion of the defeated Federal
commander as well as Mr. Lincoln’s reply relative to the publication at
that time of a declaration of amnesty to those in arms against the
Government.[309] The double victory of Mission Ridge and Lookout
Mountain, following the removal of Rosecrans, confirmed the President in
his purpose of offering a general pardon to those who would lay down
their arms and return to their obedience to the laws. The Proclamation
of December 8, 1863, followed promptly and brought the subject of
reconstruction before the Thirty-eighth Congress at its first session.
The preceding pages have alluded to the universal favor with which that
announcement was received. Though opposition to Executive measures was
hushed for the time, it appears only to have gathered strength in this
brief interval of silence. One short week introduced into the House of
Representatives a resolution the subsequent progress of which brought
the dominant party in Congress to the support of a measure hostile to
that submitted by the President. Its interesting history may be
collected from the pages of the _Congressional Globe_.
On December 15, from the Committee of Ways and Means, Thaddeus Stevens
reported among other resolutions one to refer so much of the President’s
message as was contained in the Proclamation, and as related to the
condition and treatment of rebellious States, to a special committee of
nine to be appointed by the Speaker. Henry Winter Davis inquired whether
Mr. Stevens would accept for that resolution an amendment pointing more
directly to the purpose in view. This substitute read as follows:
That so much of the President’s message as relates to the duty of
the United States to guarantee a republican form of government to
the States in which the governments recognized by the United States
have been abrogated or overthrown, be referred to a select committee
of nine, to be named by the Speaker, which shall report the bills
necessary and proper for carrying into execution the foregoing
guaranty.[310]
Stevens offering no objection, Representative Davis remarked that the
language of the resolution was general, and, he believed, would cover
the whole war; the committee, he supposed, intended to point to what, in
the very inaccurate phraseology of the day, was known as the question of
reconstruction; but believing there had been no destruction, he
carefully avoided the use of that term.
The Government of the United States, continued Mr. Davis, was engaged in
two operations: the suppression of armed resistance to the supreme
authority of the nation and a very delicate, and perhaps as high a
duty—to see, when armed resistance should be overcome, that governments
republican in form should be restored in all those States. His
substitute directed the investigations of the committee to that one
point. It was not intended as a peremptory instruction to the committee
to report any particular measure, but to take such action as their
wisdom should recommend.
Democratic feeling on this subject appears in an inquiry by
Representative Brooks, of New York, as to whether republican governments
had not been abrogated and overturned north as well as south of the
Potomac since the revolution began.[311]
The amendment of Mr. Davis prevailed, and of the special committee
appointed he was made chairman. On January 18, 1864, he asked unanimous
consent to report a bill to guarantee certain States a republican form
of government. Objection having been made, he moved a suspension of the
rules; but failing to receive the necessary two thirds vote his motion
was lost. On February 15 succeeding, when he brought the measure before
the House again and requested a postponement of its consideration for
two weeks, it encountered Democratic opposition. The bill was then read
a first and second time, ordered to be printed, and returned to the
committee.
On March 22 the bill came before the House on the question of ordering
it to be engrossed and read a third time. In its support Mr. Davis made
an able address in which he analyzed the plan proposed by the Executive
and emphasized its deficiencies. He said:
The bill which I am directed by the Committee on the Rebellious
States to report is one which provides for the restoration of civil
government in States whose governments have been overthrown. It
prescribes such conditions as will secure not merely civil
government to the people of the rebellious States, but will also
secure to the people of the United States permanent peace after the
suppression of the rebellion.
The bill challenges the support of all who consider slavery the
cause of the rebellion, and that in it the embers of rebellion will
always smoulder; of those who think that freedom and permanent peace
are inseparable, and who are determined, so far as their
constitutional authority will allow them, to secure these fruits by
adequate legislation.
... It is entitled to the support of all gentlemen upon this side of
the House, whatever their views may be of the nature of the
rebellion; and the relation in which it has placed the people and
States in rebellion toward the United States, not less of those who
think that the rebellion has placed the citizens of the rebel States
beyond the protection of the Constitution, and that Congress,
therefore, has supreme power over them as conquered enemies, than of
that other class who think that they have not ceased to be citizens
and States of the United States, though incapable of exercising
political privileges under the Constitution, but that Congress is
charged with a high political power by the Constitution to guarantee
republican governments in the States, and that this is the proper
time and the proper mode of exercising it. It is also entitled to
the favorable consideration of gentlemen upon the other side of the
House, who honestly and deliberately express their judgment that
slavery is dead. To them it puts the question whether it is not
advisable to bury it out of our sight, that its ghost may no longer
stalk abroad to frighten us from our propriety.
It does not address itself to that class of gentlemen upon the other
side of the House, if there be any, nor to that class of the people
of the country who look for political alliance to the men who head
the rebellion in the South....
It purports, sir, not to exercise a revolutionary authority, but to
be an execution of the Constitution of the United States, of the
fourth section of the fourth article of that Constitution, which not
merely confers the power upon Congress, but imposes upon Congress
the duty of guaranteeing to every State in this Union a republican
form of government. That clause vests in the Congress of the United
States a plenary, supreme, unlimited political jurisdiction,
paramount over courts, subject only to the judgment of the people of
the United States, embracing within its scope every legislative
measure necessary and proper to make it effectual; and what is
necessary and proper the Constitution refers, in the first place, to
our judgment, subject to no revision but that of the people. It
recognizes no other tribunal. It recognizes the judgment of no
court. It refers to no authority except the judgment and will of the
majority of Congress, and of the people on that judgment, if any
appeal from it.
[Secession he described as] the act of the people of the States,
carrying with it all the consequences of such an act. And therefore
it must be either a legal revolution which makes them independent,
and makes of the United States a foreign country, or it is a
usurpation against the authority of the United States, the erection
of governments which do not recognize the Constitution of the United
States, which the Constitution does not recognize, and, therefore,
not republican governments of the States in rebellion. The latter is
the view which all parties take of it. I do not understand that any
gentleman on the other side of the House says that any rebel
government which does not recognize the Constitution of the United
States, and which is not recognized by Congress, is a State
government within the meaning of the Constitution. Still less can it
be said that there is a State government, republican or
un-republican, in the State of Tennessee, where there is no
government of any kind, no civil authority, no organized form of
administration except that represented by the flag of the United
States, obeying the will, and under the orders of the military
officer in command. It is the language of the President of the
United States in every proclamation, of Congress in every law on the
statute-book, of both Houses in their forms of proceeding, and of
the Courts of the United States in their administration of the law.
It is the result of every principle of law, of every suggestion of
political philosophy, that there can be no republican government
within the limits of the United States that does not recognize, but
does repudiate, the Constitution, and which the President and the
Congress of the United States do not, on their part, recognize.
Those that are here represented are the only governments existing
within the limits of the United States. Those that are not here
represented are not governments of the States, republican under the
Constitution. And if they be not, then they are military
usurpations, inaugurated as the permanent governments of the States,
contrary to the supreme law of the land, arrayed in arms against the
Government of the United States; and it is the duty, the first and
highest duty, of the Government to suppress and expel them. Congress
must either expel, or recognize and support them. If it do not
guarantee them, it is bound to expel them; and they who are not
ready to suppress them are bound to recognize them.
“In the famous Rhode Island cases,” he continued, the Supreme Court of
the United States by the mouth of Chief Justice Taney, declared “that a
military government, established as the permanent government of a State,
is not a republican government in the meaning of the Constitution, and
that it is the duty of Congress to suppress it. That duty Congress is
now executing by its armies. He [Justice Taney] further said in that
case that it is the exclusive prerogative of Congress—of Congress, and
not of the President—to determine what is and what is not the
established government of the State; and, to come to that conclusion, it
must judge of what is and what is not a republican government, and its
judgment is conclusive on the Supreme Court, which cannot judge of the
fact for itself, but accepts the fact declared by the political
department of the Government.”
Mr. Davis resumed:
We are now engaged in suppressing a military usurpation of the
authority of the State government. When that shall have been
accomplished, there will be no form of State authority in existence
which Congress can recognize. Our success will be the overthrow of
all semblance of government in the rebel States. The Government of
the United States is then, in fact, the _only_ Government existing
in those States, and it is there charged to guarantee them
republican governments.
... The duty of guaranteeing carries with it the right to pass all
laws necessary and proper to guaranty.... It places in the hands of
Congress the right to say what is and what is not, with all the
light of experience and all the lessons of the past, inconsistent,
in its judgment, with the permanent continuance of republican
government; and if, in its judgment, any form of policy is radically
and inherently inconsistent with the permanent and enduring peace of
the country, with the permanent supremacy of republican government,
and it have the manliness to say so, there is no power, judicial or
executive, in the United States, that can even question this
judgment but the =People=; and they can do it only by sending other
representatives here to undo our work. The very language of the
Constitution and the necessary logic of the case involve that
consequence. The denial of the right of secession means that all the
territory of the United States shall remain under the jurisdiction
of the Constitution. If there can be no State government which does
not recognize the Constitution, and which the authorities of the
United States do not recognize, then there are these alternatives,
and these only: the rebel States must be governed by Congress till
they submit and form a State government under the Constitution; or
Congress must recognize State governments which do not recognize
either Congress or the Constitution of the United States; or there
must be an entire absence of _all_ government in the rebel States;
and that is anarchy. To recognize a government which does not
recognize the Constitution is absurd, for a government is not a
constitution; and the recognition of a State government means the
acknowledgment of men as governors, and legislators, and judges,
actually invested with power to make laws, to judge of crimes, to
convict the citizens of other States, to demand the surrender of
fugitives from justice, to arm and command the militia, to require
the United States to repress all opposition to its authority, and to
protect it from invasion—against our own armies; whose Senators and
Representatives are _entitled_ to seats in Congress, and whose
electoral votes must be counted in the election of the President of
a Government which they disown and defy!! To accept the alternative
of anarchy as the constitutional condition of a State is to assert
the failure of the Constitution and the end of republican
government. Until, therefore, Congress recognize a State government,
organized under its auspices, there is no government in the rebel
States except the authority of Congress. In the absence of all State
government, the duty is imposed on Congress ... to administer civil
government until the people shall, under its guidance, submit to the
Constitution of the United States, and, under the laws which it
shall impose, and on the conditions Congress may require, reorganize
a republican government for themselves, and Congress shall recognize
that government.
... Is it yet time to reorganize the State governments? or is there
not an intermediate period in which sound legislative wisdom
requires that the authority of Congress shall take possession of and
temporarily control the States now in rebellion until peace shall be
restored and republican government can be established deliberately,
undisturbed by the sound or fear of arms, and under the guidance of
law?
After referring to the condition of the rebellion, Mr. Davis declared:
“We have occupied a vast area wrested from its power, but to this day we
have not expelled the rebels from _any State_ they ever held.” In no
portion of those States could military power “be withdrawn for a moment
without instant insurrection”; and he added, “There is no rebel State
held now by the United States enough of whose population adheres to the
Union to be intrusted with the government of the State. One tenth cannot
control nine tenths. Five tenths are nowhere willing to undertake the
control of the other five tenths.” In West Virginia, he said, such a
condition existed and had been recognized. “In no other State—the only
one in respect to which a doubt can exist is Tennessee—in no other State
is there such a portion of territory held, or any such portion of
population under our control, or any such portion of it which is in our
control inspired by such sentiments toward the Government of the United
States, so free from fear of the returning wave of rebel invasion, so
assured of the continued supremacy of the United States, that we ought
to be willing to trust them with this power. You can get a handful of
men in the several States who would be glad to take the offices if
protected by the troops of the United States, but you have nowhere a
body of independent, loyal partisans of the United States, ready to meet
the rebels in arms, ready to die for the Republic, who claim the
Constitution as their birthright, count all other privileges light in
comparison, and resolve at every hazard to maintain it.”
Concerning the loyal masses of the South, of whom so much was heard at
the beginning of the war, he remarked:
It is the most astounding spectacle in history that in the Southern
States, with more than half of the population opposed to it, a great
revolution was effected against their wishes and against their
votes, without a battle, a riot, or a protest in behalf of the
beneficent Government of their fathers—a revolution whose opponents
hastened to lead it, without a martyr to the cause they deserted
except the nameless heroes of the mountains of Tennessee, or a
confessor of the faith they had avowed save the illustrious Petigru
of South Carolina!
... There is no fact that any one has stated on authority at all
reliable that any respectable proportion of the people of the
Southern States now in rebellion are willing to accept any terms
that even our opponents on the other side of the House are willing
to offer them.
* * * * *
What, then, are we to do with the population in these States? To
make “confusion worse confounded” by erecting by the side of the
hostile State government a new State government on the shifting
sands of that whirlpool, to be supported by us while we are there
and to turn its power against us when we are driven out? That would
be to erect a new throne where
“Chaos umpire sits,
And by decision more embroils the fray
By which he reigns.”
In my judgment, it is not safe to confide the vast authority of
State governments to the doubtful loyalty of the rebel States until
armed rebellion shall have been trampled into the dust, until every
armed rebel shall have vanished from the State, until there shall be
in the South no hope of independence and no fear of subjection,
until the United States is bearded by no military power and the laws
can be executed by courts and sheriffs without the ever-present
menace of military authority. Until we have reached that point, this
bill proposes that the President shall appoint a civil governor to
administer the government under the laws of the United States in
force in the States respectively at the outbreak of the rebellion,
subject, of course, to the necessities of military occupation.
When military opposition shall have been suppressed, continued Mr.
Davis, then call upon the people to reorganize their governments in
their own way, “subject to the conditions that we think essential to our
permanent peace, and to prevent the revival hereafter of the
rebellion....”
To establish republican forms of government that the people of the
United States would agree to, three modes were indicated: “One is to
remove the cause of the war by an alteration of the Constitution of the
United States prohibiting slavery everywhere within its limits. That,
sir, goes to the root of the matter, and should consecrate the nation’s
triumph. But there are thirty-four States—three fourths of them would be
twenty-six. I believe there are twenty-five States represented in this
Congress, so that we, on that basis, cannot change the Constitution. It
is, therefore, a condition precedent in that view of the case, that more
States shall have governments organized within them.”
He next noticed the calculation based on three fourths of the States
then represented in Congress, a construction held by Thaddeus Stevens,
but even that view was not without its difficulties. The States of New
Jersey, Kentucky, Maryland and Delaware were named as doubtful. If such
an amendment were adopted it still left “the whole field of the civil
administration of the States prior to the recognition of State
governments, all laws necessary to the ascertainment of the will of the
people, and all restrictions on the return to power of the leaders of
the rebellion, wholly unprovided for.” The constitutional amendment met
his hearty approval, but it was not a complete remedy.
Relative to the Administration policy, he observed:
The next plan is that inaugurated by the President of the United
States in the proclamation of the 8th of December, called the
amnesty proclamation. That proposes no guardianship of the United
States over the reorganization of the governments, no law to
prescribe who shall vote, no civil functionaries to see that the law
is faithfully executed, no supervising authority to control and
judge of the election. But if, in any manner, by the toleration of
martial law, lately proclaimed the fundamental law, under the
dictation of any military authority, or under the prescriptions of a
provost marshal, something in the form of a government shall be
presented, represented to rest on the votes of one tenth of the
population, the President will recognize that, provided it does not
_contravene_ the proclamation of freedom and the laws of Congress;
and, to secure that, an oath is exacted.
Now you will observe that there is no guarantee of law to watch over
the organization of that government. It may combine all the
population of a State; it may combine one tenth only; or ten
governments may come competing for recognition at the door of the
Executive mansion. The executive authority is pledged; Congress is
not pledged. It may be recognized by the military power and may not
be recognized by the civil power, so that it would have a doubtful
existence, half civil and half military, neither a temporary
government by law of Congress nor a State government, something as
unknown to the Constitution as the rebel government that refuses to
recognize it.
In examining the operation of the Executive proclamation on the
existence of slavery, Mr. Davis asked, how does it accomplish the
reorganization of the government on the basis of universal freedom? and
added:
The only prescription is that the government shall not _contravene_
the provisions of that proclamation. Sir, if that proclamation be
valid, then we are relieved from all trouble on that score; but if
that proclamation be not valid, then the oath to support it is
without legal sanction, for the President can ask no man to bind
himself by an oath to support an unfounded proclamation or an
unconstitutional law even for a moment, still less till it shall
have been declared void by the Supreme Court of the United
States.... If, therefore, he shall have taken the oath, he can, in
good conscience as well as in good law, disregard it the next
moment; so that, in point of fact, the law leaves us where the
proclamation does; it adds nothing to its legality, nothing to its
force.
But what is the proclamation which the new governments must not
contravene? That certain negroes shall be free, and that certain
other negroes shall remain slaves. The proclamation therefore
recognizes the existence of slavery. It does just exactly what all
the constitutions of the rebel States prior to the rebellion did;
... and, therefore, the old constitutions might be restored
to-morrow without _contravening_ the proclamation of freedom. Those
constitutions do not say that the President shall not have the
right, in the exercise of his military authority, to emancipate
slaves within the States.... They do not even establish slavery....
They merely recognize it just as the proclamation recognizes its
existence in parts of Virginia and in parts of Louisiana. So that
the one tenth of the population at whose hands the President
proposes to accept and guarantee a State government, can elect
officers under the old constitution of their State in exactly the
same terms and with exactly the same powers existing at the time of
the rebellion, and may, under his proclamation, demand a
recognition.... So soon as the State government is recognized, the
operation of the proclamation becomes merely a judicial question.
The right of a negro to his freedom is a legal right divesting a
right of property, and is to be enforced in the courts; and then the
question is what the courts will say about the proclamation. Is it
valid or invalid? Does it of itself confer a legal right to freedom
on negroes who were slaves? Is it within the authority of the
Executive?... How local State courts, created by the Southern
people, will decide such a question _no one_ can doubt.... It is,
therefore, under the scheme of the President, merely a judicial
question, to be adjudged by judicial rules, and to be determined by
the courts.... I do not desire to argue the legality of the
proclamation of freedom. I think it safer to _make it law_.... Under
the act of 1862 the President is authorized to use the negro
population for the suppression of the rebellion; while the rebellion
lasts, his proclamation in law exempts the slave from the duty of
obeying his master, but after the rebellion is extinguished, the
master’s rights are in his own hands, subject only to the opinion of
the courts on the legal effect of the proclamation, without a single
precedent to sanction it, and opposed by the solemn assertions of
our Government against the principle worked to authorize it.
Gentlemen are less prudent or less in earnest than I am if they will
risk the great issues involved in this question on such authorities
before the courts of justice.
By the bill we propose to preclude the judicial question by the
solution of a political question. How so? By the paramount power of
Congress to reorganize governments in those States, to impose such
conditions as it thinks necessary to secure the permanence of
republican government, to refuse to recognize any governments there
which do not prohibit slavery forever. Ay, gentlemen take the
responsibility to say, in the face of those who clamor for speedy
recognition of governments tolerating slavery, that the safety of
the people of the United States is the supreme law; that their will
is the supreme rule of law, and that we are authorized to pronounce
their will on this subject—take the responsibility to say that we
will revise the judgments of our ancestors; that we have experience
written in blood which they had not; that we find now, what they
darkly doubted, that slavery is really, radically inconsistent with
the permanence of republican governments; and that, being charged by
the supreme law of the land, on our conscience and judgment, to
guarantee, that is, to continue, maintain, and enforce, if it exist,
to institute and restore when overthrown, republican governments
throughout the broad limits of the republic, we will weed out every
element of their policy which we think incompatible with its
permanence and endurance.... It [the bill] adds to the authority of
the proclamation the sanction of Congress....
Gentlemen must deny the jurisdiction of Congress over the States
where there are no recognized governments, or place a bound or limit
to the discretion of Congress....
And if the sentiments of State pride and State rights be touched by
the assertion of this wide discretion, which men may deny but cannot
expunge, I would admonish those who dislike it that it is a
jurisdiction which nothing but the dereliction of the States can
wake into activity, and they who wish to exclude it from their
limits have only not to give occasion for its exercise by renouncing
obedience to the Constitution and pulling down their own State
governments. But now the jurisdiction has attached in all the rebel
States. Until Congress has assented, there is no State government in
any rebel State, and none will be recognized except such as
recognize the power of the United States; so that we come down to
this: whether we—and when I say we, I mean we upon this side of the
House, who are firmly, thoroughly, and honestly convinced that the
time has come not merely to strike the arms from the hands of the
rebels, but to strike the fetters from the arms of the slaves, and
remove that domineering and cohesive power without which we could
have had no rebellion, and which now is its animating spirit, and
which will die when it dies—....
And if it be time [for Congress to assert its authority] then all I
ask in conclusion is, that gentlemen will go and read that great
argument of Daniel Webster in the Rhode Island case ... where he met
this semi-revolutionary attempt to count heads and call that the
people, and maintained—and so the Supreme Court judged when it
refused to take jurisdiction of the question—that the great
political law of America is that every change of government shall be
conducted under the supervising authority of some existing
legislative body throwing the protection of law around the polls,
defining the rights of voters, protecting them in the exercise of
the elective franchise, guarding against fraud, repelling violence,
and appointing arbiters to pronounce the result and declare the
persons chosen by the people.... He [Webster] maintained it to be
the great fundamental principle of the American government that
legislation shall guide every political change, and that it assumes
that somewhere within the United States there is always a permanent,
organized legal authority which shall guide the tottering footsteps
of those who seek to restore governments which are disorganized and
broken down.
The bill, he asserted in conclusion, was an effort to apply this great
principle of American law.[312]
Representative Scofield, of Pennsylvania, said, April 29, 1864, when the
subject was again before the House, that the continuity of
constitutional government in the seceded States had been broken, the
regular transmission of political power interrupted. How, he inquired,
should the severed thread be joined? By the unconstrained action of the
people themselves, say the gentlemen in opposition. He indorsed that
sentiment, and added that when the people of those States should ground
the arms of their rebellion, and uncoerced take upon themselves the easy
yoke and light burden of the ever gentle Federal Government it would
mark a glad day in those uncheerful years of our history.
For those States from which hostile armies had been excluded Congress
should legislate or leave the people in the rough hand of military law.
The bill designed to discharge that duty was generally acceptable to any
one who conceded the propriety of Congressional action, its three
prohibitions being probably the only debatable points,—that is the
assumption of Confederate debts, the prevention of Confederate officers
from voting and the prohibition of involuntary servitude.
To assume the rebel debt, he asserted, would be to offer a high bounty
for future rebellions; if rebel officers were permitted to vote, upon
what principle of comparative justice could the privilege be denied to
ordinary criminals? These officers were guilty of the highest crime
against government. As to the third prohibition he had more to say.
“If God shall give us victory,” continued Mr. Scofield, “and enable us
to subdue or scatter the army of the enemy, is a voluntary reunion of
the States possible? I say _voluntary_ because I suppose nobody desires
a Union always to be maintained by force; and I use the word _reunion_
because nobody proposes a form of government different from our present
system of State brotherhood. I am not now speaking of the several plans
of reconstruction, for they are designed only as temporary devices,
looking to a reunion.... My question looks beyond the battle and beyond
reconstruction. When the victory is won, if won it shall be, and the
transition over, will the insurgent States _willingly stay_ where they
have been _forcibly put_ in their old places in the old Union?... Our
own liberties could not survive their permanent subjugation. When the
Federal Government becomes strong enough to hold eleven States as
colonies, it will be too strong, I fear, for the people’s liberties.”
All motives for those States ever to depart should be removed.
Similarity of ideas he characterized as the bond of nationality, and
named Ireland, Hungary and Poland to show the opposite. In the United
States slavery was the one subject of estrangement. Could North and
South be brought to think alike on that subject? The theory that each
side could hold its own opinions on slavery and no evil consequences
follow was somewhat to blame. That theory failed in practice and for
that failure each side blamed the other.
The fathers, he said, lived under that theory, that slavery and freedom
could coexist, but they expected that the institution would soon become
extinct. Hence they only tolerated it. Slavery was to recede slowly and
freedom to follow steadily. Upon _that_ basis they got along very well
and so could their descendants. Instead of consenting to go, slavery
demanded expansion and perpetuity. This was reversing the compromise of
the fathers; this change had to be discussed, the slave power took
umbrage and secession followed. If one sentiment must prevail, then
slavery, which could not stand discussion, must yield if there was to be
a reunion. To live in peace together the North must embrace slavery or
the South must abandon it.
To adopt slavery would mean the adoption by 20,000,000 people of
sentiments favorable thereto, whereas the institution never had any
friends in the North. Those in that section so considered were only its
apologists. If, three years ago, slavery had no real friends in the
North, who would advocate it when it had attempted to destroy the most
beneficent of governments? To reconcile the free States would
necessitate a change of opinion—to adopt freedom as the dominant idea
would require simply a change of _investment_ in the sections. For the
present extinguish the conflagration, for the future remove the
inflammable material from which it was kindled. For the present seize
the mad revolutionists of the South, for the future destroy the virus
that poisoned their blood.
All who favored emancipation he favored as co-workers for a voluntary
and peaceful reunion of the States; slavery was presented merely as an
element of discord and disunion and as such he asked for its
removal.[313]
Mr. Williams said that the war was inaugurated on the theory that the
States were _in_, whereas the great fact of war was a proclamation that
they were _out_. Northern Democrats were willing to accept the fact that
they were _out, without war_—to adopt the principle of the _laissez nous
faire_ of the rebel authorities and to treat with them upon the idea of
a _reconstruction_; peaceful secession with _reconstruction by treaty_.
The severance of the States was complete, though the hope of recovery
remained. By releasing the crews of their privateers, by blockading
their ports the Federal authorities had recognized them as a _de facto_
government; Federal legislation had put them under the ban as alien
enemies. In the minds of the framers of the Constitution the theory of
an indissoluble Union referred to _the right_, to its organic law. They
did not mean that it could not be ruptured by violence. If the
governments of the States were dissolved “they must, of course, be
reconstructed under the auspices of the conquering power, and that not
by the Executive, but by the Legislature of the Union, whose sword he
bears, and which only, consistently with the genius of our institutions,
the past practice of the Government, and the letter as well as spirit of
the Constitution, can venture to determine what use shall be made of the
territories conquered by it, and when and upon what terms they shall be
readmitted into full communion as members of this Government.... To
permit any executive officer to declare its law, and set it in motion,
and place it under the control of a minority—a mere tithe of its
citizens—with power to send delegates to Congress with representation
unimpaired and unaffected—even though he should reenact a part of its
abrogated Constitution—would be, as I think, a monstrous anomaly, a
violation of fundamental principles, and a precedent fraught with great
danger to republican liberty.... To come back into the Union, it must
either be born anew or come back with all its rights unimpaired, except
those material ones which have been destroyed in the progress of the
war. There is, I think, no middle ground, as there is no power either
here or elsewhere to prescribe terms which shall abridge the rights or
privileges of a State that has _not_ been out of the Union, or returns
to it in virtue of its original title.” The rebellious States, he
declared, “are in the Union for correction, not for _heirship_.” In
point of fact they were out.
Replying to an observation of Fernando Wood, Mr. Williams said: “We are
in favor, at all events, of preserving all that is left of it [the
Union], and intend, with the blessing of God, to win back the residue,
and pass it through the fire until it shall come out purged of the
malignant element that has unfitted it for freedom.
“... Say that they [the rebellious States] are in the Union as before,
and all your sacrifices have been idle, and all the blood spilled by you
has sunk into the earth in vain.”
The confiscation and distribution of the great baronial possessions of
rebel leaders were in his judgment an essential element in any feasible
plan of reconstruction. He deduced from passages in Bynkershoek and
Barbeyrac that “everything belonging to the offending party is
confiscated.... _Indemnity_, _security_, and _punishment_ are all,
therefore, means of self-defense which may be legitimately used.”
Is the forfeiture, he asked, of the estates and property of traitors,
whether they consist of lands or slaves, required for these purposes?
“_Vae Victis_” is not the maxim of a humane conqueror. Though he would
not exclude the idea of mercy, he was not clear as to “the wisdom of a
proclamation of amnesty in advance as a measure of pacification, without
limits as to time, and where submission after conquest, and when it is
no longer a virtue but a necessity, is to be rewarded with the same
impunity as a voluntary return to duty before that time.”
Speaking of the nature, cause and fury of the war, he continued: “Its
suppression has become impossible without removing the cause of the
strife, and disabling our enemy by liberating his slaves, and arming
them against him.”
No reparation was adequate for the injury inflicted; for, said he,
“there can be no punishment, except in the divestiture of the rights and
the seizure of the estates of the guilty leaders. There is no security
except in the distribution of the latter.” From these he would carve out
inheritances for the widow and the helpless offspring of the Northern
soldier.
For eighteen months, he observed in conclusion, the war was conducted
upon the principle of inflicting as little injury as possible upon the
enemy.[314]
The speech of Mr. Williams was marked by considerable fluency as well as
great elegance of diction; it was the effort of a scholar, though not
confined strictly to the question before the House. He introduced with
directness and vigor the ideas of indemnity, security and punishment;
these, it may be remarked, became important elements in determining the
mode of reinstatement that finally emerged from the chaos of resolutions
and plans submitted to Congress.
Representative Baldwin, of Michigan, believed the bill “to be an utter
subversion of the Constitution”; even a latitudinarian construction of
that instrument would not justify it. It embraced a plan that could be
enforced by only the military arm. It was the precursor of the
establishment of a despotism. That measure, as well as the President’s
plan, was fraught with danger.
He lamented interference with the elective franchise and the denial of
the privileges of the writ of _habeas corpus_. For eighteen months the
war had been waged for the destruction of the South, not for the
restoration of the Union. Did not wisdom, he asked, suggest that all
plans of reconstruction which tended only to intensify hate and postpone
the day of peace be abandoned? Speaking of the effect of Mr. Lincoln’s
policy he observed: “That it was intended that the amnesty proclamation
of last December would hasten the end of this strife, I do not believe.
We are told that nearly every Southern paper published it, and it only
nerved them to the performance of more earnest deeds.” The President’s
plan as well as that of Congress, he believed, were designed to
perpetuate the present dominant party by the vote of reconstructed
States. A considerable portion of his remarks was devoted to criticism
of the Administration.[315]
Mr. Thayer, of Pennsylvania, believed that the powers delegated by the
people of the United States to the national Government were sufficient
for the great work of reconstruction, and added: “That the time has come
in which Congress, in the exercise of the great powers conferred upon
it, should settle and authoritatively declare the terms and conditions
upon which the people of the rebellious districts should be restored to
their State privileges and resume their just relations to the national
Government, does not admit of doubt.” People occupying territory wrested
from the rebellion should be restored with the least possible delay to
the privileges of representative government. “Congress alone can enact
the laws which are to reconstruct the political societies in which the
fundamental principle of loyalty to the national Government and
obedience to its laws and respect for its authority have been
obliterated by the violence of rebellion. The President of the United
States cannot enact these laws, and it is in my opinion a reproach to
Congress that by its inaction up to the present time it has rendered it
necessary that the national Executive should be obliged by a sense of
obligation to the public welfare to resort to temporary expedients for
the preservation of public order and the assertion of national supremacy
in those districts and States which the valor of our soldiers has
redeemed from the insulting domination of the rebel army.”
Executive action, he asserted, was suggested by necessity. “What has
been done in that respect by the President I believe to have been well
done, wisely done, and patriotically done, and to have been demanded
alike by the necessity of the case and for the welfare of the Republic.”
The exclusive right over the subject, however, belonged to Congress,
which should relieve the President of all responsibility therein.
Safeguards against the recurrence of similar outbreaks in the future
should be required. He would support the measure before the House
because of these safeguards or pledges. Unconditional and perpetual
loyalty in the new governments in the rebellious States to that of the
United States, extirpation and perpetual prohibition of slavery and
compulsory repudiation of the rebel debt were the chief among these.
“The safety of the country,” said he, “its future repose, the
continuance of the Union, and the firm establishment of our political
system imperatively demand that in the reorganization of local
governments in the rebel States the foundations of such governments must
rest upon the principle of submission to the Constitution and laws of
the United States.
“... It is also necessary to guard the elective franchise and the
privilege of holding office in those States against the intrusion and
treachery of all who have in any sense been leaders in the present
rebellion. For this purpose prudence requires that all who have held
office under the pretended rebel government should be excluded from
these privileges.”
The seventh section of the bill he would like to see so modified as to
declare that no debt of the pretended Confederate States, and no debt
contracted by the State for the purpose of prosecuting the war against
the United States or of giving aid to its enemies, should be recognized
or paid by the State.
It was a singular doctrine, he remarked in conclusion, that those who
had thrown off all restraints of the Constitution and who for years had
waged war for the purpose of overthrowing it should be entitled to
demand its protection while engaged in armed hostility to it.[316]
Mr. Yeaman did not believe Congress had a right to legislate away the
laws and institutions of these States. The American people, he said,
would come out of the contest with a better political education, an
education having for its basis the idea that _they are a nation_, and he
added, “a war to enforce the theory of secession will end in an
increased consolidated nationality.” The theory expressed in the
Virginia and Kentucky Resolutions was the fatal blow in our political
history. His address was in the nature of an essay in political science
and not altogether germane to the measure under consideration.[317]
“Pass a judicious enabling act,” urged Mr. Longyear, “with proper
safeguards, of which the people may avail themselves to organize civil
governments at the very earliest opportunity, and it will afford a
rallying point for the Union sentiment remaining there, and tend to
foster it and nourish it into a healthful and vigorous existence. It
will prevent perplexing and complicated irregularities and diversities
of action, and tend largely to harmony and strength in our future
deliberations. No stronger illustration of the necessity and propriety
of immediate action need be given than the case of Tennessee, Louisiana,
and Arkansas.
“The President’s proclamation does not solve the difficulty. As a
proclamation of amnesty, as a general outline or plan for organizing new
State governments, as a prescription of safeguards and conditions
precedent to such organization, it will ever stand as a bright and
glorious page in the history of the present Administration. But it is
incomplete for lack of constitutional power. That can be conferred by
Congress alone, under the power to admit new States.
* * * * *
“If we succeed [in the war] we make no conquest of territory, because
that is already ours. We simply succeed, in that respect, in bringing
that which is our own again under our control.” Because of rebellion the
constitutions and laws of those States had ceased to exist, and as
slavery was established solely in State laws that also ceased to exist.
The only object of a constitutional amendment was to prohibit its
establishment forever. Freedom, he added, was being substituted for
slavery. In respect to slavery and the slave power we were in the midst
of a revolution. They proved themselves inimical to civil liberty, to
the Constitution and to republican institutions.[318]
To the remark of Fernando Wood, of New York, that the South could not be
subdued, Ignatius Donnelly replied, “We are doing it!” and he added, if
the system of the President is deficient in the machinery that will
ensure safety “it is our duty to supply that defect. The plan of the
President, unsupported by any action on our part, hangs upon too many
contingencies. It may be repealed by his successor; it may be resisted
by Congress; it may be annulled by the Supreme Court. It rests the
welfare of the nation upon the mind of one man; it rests the whole
structure of social order upon the unstable foundation of individual
oaths.” Upon this subject Mr. Donnelly observed that General Jefferson
Thompson, C. S. A., noted in passing through those regions that men
consulted their memorandum books to see what oath they had taken last.
Thousands of rebel dead had been found on the battle field with oaths of
allegiance, sworn to and subscribed, in their pockets. Mr. Donnelly
favored the bill, and if any measure of greater security could be found
he would support that. He desired, as soon as it could be attained, an
amendment of the Constitution that would prohibit slavery.
“I am aware, Mr. Speaker,” he continued, “of the great claims which Mr.
Lincoln has upon the people of the United States. I recognize that
popularity which accompanies him, and which, considering the ordeal
through which he has passed, is little less than miraculous. I recognize
that unquestioning faith in his honesty and ability which pervades all
classes, and the sincere affection with which almost the entire
population regard him. We must not underrate him even in our praises. He
is a great man. Great not after the old models of the world, but with a
homely and original greatness. He will stand out to future ages in the
history of these crowded and confused times with wonderful distinctness.
He has carried a vast and discordant population safely and peacefully
through the greatest of political revolutions with such consummate
sagacity and skill that while he led he appeared to follow; while he
innovated beyond all precedent he has been denounced as tardy; while he
struck the shackles from the limbs of three million slaves he has been
hailed as a conservative! If to adapt, persistently and continuously,
just and righteous principles to all the perplexed windings and changes
of human events, and to secure in the end the complete triumph of those
principles, be statesmanship, then Abraham Lincoln is the first of
statesmen.
“If the end of the war is to be a restoration _of the appearance_ of the
old Government; a patching together of the broken shreds and fragments;
a propping up of the fabric in such style that the next Administration
may possibly get out from under it before it falls, then that
proclamation may be found all-sufficient. But for all other purposes it
will be utterly unavailing. It does not reach the heart of the
distemper....
“We owe more than this to ourselves; we owe more than this to the South.
We must regenerate the South.”[319]
This discriminating tribute to the character and genius of Mr. Lincoln
was paid by no servile flatterer; it was not the eulogy of even a
supporter of the Presidential plan of reconstruction; nor was it
designed as a discharge of, or uttered in expectation of compelling,
Executive favors, but appears rather to have been the spontaneous
testimony of a keen interpreter of men and measures not less creditable
to the insight of the speaker than to the subject of his remarks.
Others, it is true, refrained from misrepresenting the President’s
attitude and cheerfully ascribed to him patriotic and enlightened
motives in his public conduct. Mr. Donnelly alone condensed into a
paragraph a panegyric with which the judgment of posterity is in
complete accord. This portion of his speech is quoted both to show that
there were men in Congress who fully appreciated the greatness of the
President, and that criticism of his measures was not in many instances
suggested by feelings of personal hostility.
Very different were the remarks of Mr. Dennison, who declared that “The
passage of this law will be the final gathering up of the reserved
rights of States, and the last vestige of protection of the citizen
under State constitutions will be taken away, and all power centralized
in the General Government.” He opposed the bill for the additional
reason that it was intended to legalize and perpetuate the
unconstitutional acts of the President. “There does not exist on the
earth a more despotic government than that of Abraham Lincoln. He is a
despot in fact if not in name.”[320] These excerpts sufficiently
indicate the character of his invective.
“I have offered a substitute to the bill of the committee,” said
Thaddeus Stevens, “because that does not, in my judgment, meet the evil.
It partially acknowledges the rebel States to have rights under the
Constitution, which I deny, as war has abrogated them all. I do not
inquire what rights we have under it, but they have none. The bill takes
for granted that the President may partially interfere in their civil
administration, not as conqueror but as President of the United States.
It adopts in some measure the idea that less than a majority may
regulate to some extent the affairs of a republic.”[321] The chief
objection of Mr. Stevens, however, was that it removed the opportunity
of confiscating the property of the disloyal.
Representative Wadsworth, of Kentucky, he said, agreed with him that the
people of the South could plead none of the constitutional provisions in
their defence. Whatever rights they possessed were those of belligerents
engaged in war. “When we come to enforce the rights of conquest,”
continued the Pennsylvania member, “we should be justified in insisting
upon the _extreme rights_ of war, without yielding to the mitigations
dictated by modern usage with regard to belligerents originally composed
of foreign nations engaged in war which they deemed just.” Explaining
former recommendations which in many quarters had called forth severe
criticism, he said: “I thought that the women and children, the
non-combatants, and those who were forced by the laws of their State
into the armies, should be spared; and the property of the guilty,
morally as well as politically guilty, only should be taken. And yet we
hear a howl of horror from conservative gentlemen at the inhumanity of
the proposition.” He still further explained his sentiments on this
occasion. After stating that the people of the Confederate States were
sovereign and acted through their representatives, he asserted that they
had commenced and were continuing to wage an unjust war and therefore
their private property was liable to confiscation. The right to take
their property existed, but no one, he said, “advises the execution of
the extreme right. But the right exists and ought to be enforced against
the most guilty. To allow them to return with their estates untouched,
on the theory that they have never gone out of the Union, seems to me
rank injustice to loyal men.” Of those who denied that the Confederate
States had gone out of the Union he inquired, “What are we making war
upon them for? For seceding; for going out of the Union against law. The
law forbids a man to rob or murder, and yet robbery and murder exist _de
facto_ but not _de jure_.” Hence the Constitution does not allow the
States to go out of the Union. He referred also in his speech to a
resolution introduced by Mr. Schenck, of Ohio, which passed the House
without a division and declared the Confederate States a public enemy,
engaged in a public war.[322]
On the same day, May 2, Representative Strouse remarked that immediately
after the disaster of Bull Run the House almost unanimously passed the
Crittenden Resolutions, which declared that “This war is not waged in
any spirit of oppression, or for any purpose of conquest or subjugation,
or purpose of overthrowing or interfering with the rights or established
institutions of these States.” This announcement, he asserted, brought
volunteers, whereas now, 1864, county, State and Federal bounties
combined could not induce men to enlist, and the cause of the apathy was
that the war had been perverted from the purpose announced in the
resolutions referred to. The entire speech had little reference to the
bill of Mr. Davis, but seemed rather designed, by an attack on the
Administration, to please his Democratic constituents.[323]
Mr. Cravens said that the dominant party did not distinguish between
loyalty to the Administration and loyalty to the Government. The time
for compromise had passed when the Republican party refused to accept
the Crittenden Resolutions. That organization was in all essentials an
abolition party. If there ever was a distinction it no longer existed.
He cited a rather complete list of all the measures acted upon by
Congress showing their concern for the negro; he charged neglect of the
white soldier, his widow and orphans; quoted from the speech of Thaddeus
Stevens on the admission of West Virginia, and named Representative
Julian as uttering sentiments little behind the Pennsylvania member in
boldness and exhibiting no more reverence for the Constitution. The
incapacity and dire wickedness of the President and his “courtiers” came
in for a share of criticism.
Mr. Gooch on the following day, May 3, remarked that the rebellion was
but the military phase of the conflict of ideas which began with the
adoption of the Constitution. “When we shall have crushed the rebellion
and restored peace to all parts of the country we shall hold this
territory, not by a new title, but by the old, not as territory acquired
by conquest, but territory defended and maintained against revolt.... I
can see no reason why the President, as Commander-in-Chief, should not,
in the meantime, so use the military power as to aid and assist the
loyal people of any one of these States in the organization of a loyal
State government.... All these acts by the President, or the military
power under him, in thus aiding and assisting the loyal people in these
States, impose no obligation upon Congress to recognize them until such
time as it shall deem proper to do so, and any recognition the military
power may see fit to give to these governments can never fix their
status in the Union. Congress alone has the power to determine what
government is the legitimate one in a State, and its decision is binding
on the other departments of the Government.”[324]
Mr. Perry, of New Jersey, spoke of the duration of the war, predicted
the general bankruptcy which its great expense would bring about, and
calculated that in eleven years the cost of the war would equal the
assessed value of property.
Speaking of the Executive plan he said: “And here the President’s design
is perfectly evident, to secure a majority of the delegates to the
nominating convention of his party, and to provide for his own election
by the House of Representatives in the event of there not being an
election by the people. By this plan the narrow foothold maintained by
our armies in North Carolina, Louisiana, Texas, Alabama, Florida,
Arkansas, and elsewhere may send the pretended full delegations of those
States to this House. Mr. Speaker, I denominate the whole plan a
political trick worthy of the most adroit and unscrupulous wire-puller
of our ward primary meetings.” The State governments had not been
destroyed, he added, “nor can they be destroyed unless the rebels are
finally victorious, and establish their independence.”[325]
Fernando Wood said that Mexico had a republican form of government, and
that Texas came into the Union without changing the character of her
government except to substitute a governor for President and to change
the titles of some officials. Every Southern State possessed the same
form of government which it did before secession. If, he asserted, they
were then republican in form, “they are so now.” The Confederate
constitution had all the elements of republicanism. The bill provided
that hereafter none of the States in rebellion should hold slaves. It
did not leave to the people the right to regulate their domestic
institutions. Is it republicanism to take from the people this
privilege? “To impose upon them a form of government of your own making,
under the pretext of this bill, would be the worst kind of tyranny,
whatever the provisions of your constitution might be.”[326]
He defended himself against serious charges of General Schenck, whom he
criticised severely. These accusations, however, were reiterated by Hon.
William D. Kelley, of Pennsylvania, who at this point rose to speak on
the merits of the bill.
The proposed measure did not meet his unqualified approval. It lacked
some of the amendments suggested by Mr. Stevens. “I should like to see
his distinct declaration,” said Congressman Kelley, “that ‘The
Confederate States are a public enemy, waging an unjust war, whose
injustice is so glaring that they have no right to claim the mitigation
of the extreme rights of war which are accorded by modern usage to an
enemy who has the right to consider the war a just one.’” He would like
to see the bill of Mr. Davis provide also for the exclusion from
Congress of all those States that seceded, and every part of them.
As more immediately important, however, he would prefer to see included
in the measure the proposition of Mr. Stevens respecting amendments of
the Constitution; he denied the immortality of a State. It has its
beginning, its transitions and may have its end. “A State may be killed,
a State may commit suicide. An act of God, by destroying its
inhabitants, might extinguish a State. A State could be conquered and
held by some strong and hostile power. The political people of each of
those States have overthrown the State. Through its corporate power each
State destroyed its corporate life, and no one of them exists.” He also
denied that a State could transfer to any foreign power territory within
the jurisdiction of the United States. The Supreme Court had decided
that the Southern States were alien enemies and entitled to only the
rights of such.[327]
The message of the President, Representative S. S. Cox believed, “should
be welcomed, not so much for what it is as for what it pretends to be.
It is his first adventure beyond the line of force into the field of
conciliation....
“To test the genuineness of this amnesty: five months have gone, but we
see no signs of thousands of Southern citizens rushing to embrace this
amnesty. Indeed, it is conceded that the rebellion is now more
formidable than ever.” There was no genuine movement toward the
restoration of the seceded States. He would not take the oath of
allegiance and swear support of the negro policies. How could Southern
men be expected to take the oath? Its terms provoked or irritated them
still more. The structure, he declared, was built on the Emancipation
Proclamation.
The bill of Mr. Davis had the same defects. That, too, was based upon
the one tenth system and the policy of forced emancipation. “In some of
its features,” he said, “it is an improvement upon the rickety
establishment proposed by the President.
“... The emancipation act of the gentleman [Lincoln] can never be
reconciled with the normal control of the States over their domestic
institutions, so all oaths to sustain the same are oaths to subvert the
old governments, Federal and State.... The President’s plan, therefore,
whether intended or not, is an oath to encourage treason, and the plan
of the gentleman from Maryland is a plan to consummate revolution.
“... If his [the President’s] plan of making one tenth rule in the
States should succeed, then he will have ready at hand the electoral
votes of Florida, Arkansas, Louisiana, Tennessee, North Carolina, and
other States. He began this business in Florida the other day, and the
blood which flowed at Olustee is the result of this scheme of personal
ambition!
* * * * *
“There is a sort of _odium historicum_,” proceeded Mr. Cox, “attached to
all political test oaths.... They have been the bane and foil of good
government ever since bigotry began and revenge ruled. You cannot make
eight million people, nearly all in revolt at what they regard as the
detestable usurpations of abolition, forswear their hatred to abolition.
You force by this oath the freed negro into the very nostrils of the
Southern man, whose submission to law you seek.
“The conditions of pardon only inflame but do not quench rebellion....
“We may yet change the war from the diabolical purposes of those in
power, by changing that power to other hands, and we are not ready to
sever our Union while that hope remains.”
Precedents and analogies from both ancient and contemporary history were
cited to demonstrate the folly of attempting to hold the South in her
place by force. These together with censure of the Administration and
criticism of the dominant party in Congress made up a great part of Mr.
Cox’s very long speech.[328]
Representative Boutwell, of Massachusetts, referring, May 4, to the
remarks of his colleague, Mr. Ashley, of the committee which reported
the bill, observed that “since this rebellion opened the Thirty-seventh
Congress commenced its existence and ceased to exist; that this Congress
is now closing the fifth month of its First Session, and that up to this
time no efficient, indeed no legislative steps whatever have been taken
by which the Executive is to be guided in the affairs of the people
occupying the territory that has been reclaimed from rebel domination.
Under these circumstances I think it due to the country that this House,
at least, should do nothing which conveys any reflection upon his policy
unless that policy be clearly and manifestly in contravention of the
Constitution or of the well-ascertained and admitted principles of the
Government.”
When the populous parts of Louisiana were torn from rebel domination,
and the State of Arkansas indicated in various ways the growth of a
sentiment of loyalty and returning allegiance to the General Government,
the Executive had but one of three courses before him: either to be
silent, to govern by military authority alone, or else to establish a
civil government or at least to take initiatory steps toward such
establishment. “It was unquestionably his right and duty, in the absence
of all legislative action, to govern these territories as fast and as
far as they were reclaimed by military power.”
He defended both the President and General Banks, who had for years been
consistent advocates of liberty. He then announced himself in favor of
the bill of Mr. Davis.
“The gentleman from Pennsylvania [Mr. Stevens],” continued Mr. Boutwell,
“maintains, as I understand, that these States are out of the Union;
that their territory is alien territory, and that we are making war
against alien enemies. I do not admit either of these positions to be
true. I feel quite sure that these eleven once-existing States are no
longer States of the Union. The evidence on which I rely in support of
this position is found first in the declaration made by the authorities
of those States that they no longer exist as States of the American
Union. Next, we find that for three years and more they have been
resisting the authority of the Government and have been carrying on a
war against it. It is absurd to say that States or people are a part of
the Government under the Constitution, and entitled to constitutional
rights and privileges, when they have been carrying on war against the
Government.
* * * * *
“Nor do I admit that the people in the rebellious States are aliens.
They are not of any other country, they are not of any other legal
jurisdiction, they are within the jurisdiction of the Union. Three years
ago they were a portion of this Union, and although they have been
carrying on a war, that war has not thus far been successful, their
independence has not been acknowledged by us, nor has it been recognized
by any other nation. They, therefore, are not aliens. They are, to be
sure, public enemies, but they are not alien enemies.
“... These States as political organizations have by their own will
ceased to exist.... The existence of a State is a fact within the
control of the people themselves, and cannot be influenced by any
extraneous power whatever, and therefore these States have by the will
of the people thereof as political organizations ceased to exist.”
Admitting that the Government of the United States had legal
jurisdiction over this territory and over the people who occupied it, it
was an absurdity, he declared, “to say that these States still exist and
that the people there may without our consent elect officers and send
Representatives to this body and Senators to the other branch of
Congress.”
To the taunt of the Democrats that the war had been changed from a war
to restore the Union to one for the purpose of emancipating the slave,
Mr. Boutwell replied by a denial of the fact, but added that even if it
were so, it was not the first instance of the sort in human history. Up
to 1774 every American expected to preserve the old relations with
England, yet within two years Independence was declared. The pending
measure, he asserted, had not elicited marked attention in Congress nor
any great interest throughout the country, yet in it lay the germ of a
new civilization for half a continent.
The limitation of the elective franchise to white males did not meet his
approval; for though the suffrage is not a natural, it is the highest
political, right. Where the suffrage is denied to any large number of
men, that community is never free from the danger of intestine
commotion.
As South Carolina and Georgia were responsible for breathing into
slavery the breath of life after it had everywhere been condemned, he
would not have them again reappear in the Union. Florida did not deserve
a place in the Union and, by giving the colored men local suffrage in
that district, South Carolina, Georgia and Florida, he would invite the
blacks thither as fast as they could be spared from the industries in
which they were elsewhere engaged. He would not ask to extend this
principle to loyal Northern or to border States with a negro
population.[329]
Mr. Pendleton, of Ohio, made by far the ablest Democratic argument
against the proposed enactment. Its details as well as its general
policy, he said, required examination. After stating quite fully the
provisions of the bill, he continued:
The gentleman from Maryland [Mr. Davis] facetiously entitles it “a
bill to guaranty to certain States whose governments have been
usurped or overthrown a republican form of government.”
At last the mask has been thrown off. At last the pretenses have all
been laid aside. Three years of war have done their work, and the
purposes and objects of the Republican party have been at last
acknowledged. This bill is the consummation of its statesmanship the
fruit of its experience, the demonstration of its purposes. The
gentleman from Maryland introduced it; it is understood to be
distasteful to some of his party friends; but it is a party measure;
it will be voted for by every member of the Republican organization;
it marks their policy of restoration; it defines their ideas of
Union; it interprets their construction of the Constitution. As such
I accept it. We have had double-dealing, hypocrisy and fraud for the
last three years. We have had false professions, false names, and
double-faced measures. We have had armies raised, taxes collected,
battles fought, under the pretense that the war was for the Union,
the old Union, the Union of the Constitution. These were the
catchwords for the patriotic people. In the secret council-chambers
of the party they were sneered at as devices with which to ensnare
the innocent, to deceive the ignorant, to coax the obstinate. They
were to be discarded as soon as, in the heat of war, in the
exasperation of passion, in the exultation of victory, or in the
bitterness of defeat and disaster and oppression, it would be safe
to divulge the great conspiracy against the Union, the
constitutional confederation, the principles of free government.
That time has come. The veil is drawn aside. We see clearly. The
party in possession of the powers of the Government is
revolutionary. It seeks to use those powers to destroy the
Government, to change its form, to change its spirit. It seeks under
the forms of law to make a new Government, a new Union, to ingraft
upon it new principles, new theories, and to use the powers of the
law against all who will not be persuaded. It is in rebellion
against the Constitution; it is in treasonable conspiracy against
the Government. It differs in nothing from the armed enemies except
in the weapons of its warfare. They fight to overthrow its authority
over them, while it seeks to destroy that authority at home. They
would curtail the limits of the jurisdiction of the Federal
Government; it would extend those limits, but change the basis and
principles upon which it rests. If revolt against constituted
authority be a crime, if patriotism consist in upholding in form and
spirit the Government our fathers made, those in power here to-day
are as guilty as those who in the seceded States marshal armed men
for the contest.
“Revolutions move onward.” That is true. But call things by their
true names. Admit you are in revolution; admit you are
revolutionists; admit that you do not desire to restore the old
order; admit that you do not fight to restore the Union. Take the
responsibility of that position. Avow that you exercise the powers
of the Government because you control them; that you are not bound
by the Constitution, but by your own sense of right. Avow that
resistance to your schemes is not treason, but war. Dissolve the
spell which you have woven around the hearts of our people by the
cunning use of the words conservatism, patriotism, Union. And we
will cease all criminations, we will hush all reproaches for oaths
violated, pledges falsified, faith betrayed. We will meet you on
your own ground, we will fight you with your weapons, and by the
issue of that contest, whether of argument or of arms, we will
abide.
Am I to be told that I misrepresent the Republican party? The
gentleman who has just taken his seat [Mr. Boutwell], an able and
honored member of that party, has said in your hearing, “If I could
direct the force of public sentiment and the policy of this
Government, South Carolina as a State and with a name should never
reappear in this Union. Georgia deserves a like fate. Florida does
not deserve a name in this Union.”
The gentleman from Maryland felt that this charge could be
truthfully made. He sought to answer it in advance. He denied that
the provisions of the bill contravened any clause of the
Constitution. Where is the authority for it? Where is the authority
to declare State governments overthrown? Where is the authority to
reconstruct them? Where is the authority to appoint a governor; to
call a convention to remodel their constitutions; to fix the
qualifications of its members; to prescribe the conditions of their
organic law; and until a _new_ constitution shall be made, to
administer by Federal officers such parts of the old constitution
and laws as the governor, or the President, or Congress may
select?...
At this point he quoted Madison on the guaranty clause, a subject
elaborated in the Senate by Carlile, of Virginia. Mr. Pendleton observed
that if slavery, which, with one possible exception, existed in all the
States at the time of the adoption of the Constitution, was not
inconsistent with a republican form of government then it was not
inconsistent with it in 1864.
And yet the advocates of this bill [continued Mr. Pendleton] propose
to deprive the States of power over the question of slavery, power
over their own indebtedness, power to regulate the elective
franchise, and the right to hold office, under the pretense that
they thereby execute the provision that the United States must
guaranty a republican form of government to the States.
The gentleman from Massachusetts [Mr. Boutwell] has shown how he
would execute it. South Carolina, Georgia, and Florida should never
again appear as State[s] or in name in this Confederation. Is their
exclusion a guarantee to them of a republican government?
... If Congress may insist upon the three fundamental conditions
prescribed in this bill, ... by a parity of reasoning it ought to
insist upon their incorporation into the constitution of the States
remaining steadfast by the Union. If they are essential to
republicanism in the one class of States they are equally so in all.
* * * * *
... Gentlemen must not palter in a double sense. These acts of
secession are either valid or they are invalid. If they are valid,
they separated the State from the Union. If they are invalid, they
are void; they have no effect; the State officers who act upon them
are rebels to the Federal Government; the States are not destroyed;
their constitutions are not abrogated; their officers are committing
illegal acts, for which they are liable to punishment; the States
have never left the Union, but so soon as their officers shall
perform their duties or other officers shall assume their places,
will again perform the duties imposed and enjoy the privileges
conferred by the Federal compact, and this not by virtue of a new
ratification of the Constitution, nor a new admission by the Federal
Government, but by virtue of the original ratification, and the
constant, uninterrupted maintenance of position in the Federal Union
since that date.
Acts of secession are not invalid to destroy the Union, and valid to
destroy the State governments and the political privileges of their
citizens. We have heard much of the two-fold relation which citizens
of the seceded States may hold to the Federal Government—that they
may be at once belligerents and rebellious citizens. I believe there
are some judicial decisions to that effect. Sir, it is impossible.
The Federal Government may possibly have the right to elect in which
relation it will deal with them; it cannot deal with them at one and
the same time in inconsistent relations. Belligerents being captured
are entitled to be treated as prisoners of war; rebellious citizens
are liable to be hanged. The private property of belligerents,
according to the rules of modern war, shall not be taken without
compensation; the property of rebellious citizens is liable to
confiscation. Belligerents are not amenable to the local criminal
law, nor to the jurisdiction of courts which administer it;
rebellious citizens are, and the officers are bound to enforce the
law, and to exact the penalty of its infraction. The seceded States
are either in the Union or out of it. If in the Union, their
constitutions are untouched, their State governments are maintained;
their citizens are entitled to all political rights, except so far
as they may be deprived of them by the criminal law which they may
have infracted. This seems incomprehensible to the gentleman from
Maryland. In his view the whole State government centers in the men
who administer it; so that when they administer it unwisely, or put
it in antagonism to the Federal Government, the State government is
dissolved, the State constitution is abrogated, and the State is
left, in fact and in form, _de jure_ and _de facto_, in anarchy,
except so far as the Federal Government may rightfully intervene.
This seems to be substantially the view of the gentleman from
Massachusetts [Mr. Boutwell]. He enforces the same position, but he
does not use the same language.
... If by a plague or other visitation of God every officer of a
State government should at the same moment die, so that not a single
person clothed with official power should remain, would the State
government be destroyed? Not at all. For the moment it would not be
administered, but as soon as officers were elected and assumed their
respective duties it would be instantly in full force and vigor.
If these States are out of the Union their State governments are
still in force unless otherwise changed. And their citizens are to
the Federal Government as foreigners, and it has in relation to them
the same rights, and none other, as it had in relation to British
subjects in the war of 1812, or to the Mexicans in 1846. Whatever
may be the true relation of the seceded States, the Federal
Government derives no power in relation to them or their citizens
from the provision of the Constitution now under consideration, but
in the one case derives all its power from the duty of enforcing the
“Supreme law of the land;” and in the other from the power “to
declare war.”
* * * * *
The gentleman [Mr. Davis] states his case too strongly. The duty
imposed on Congress is doubtless important, but Congress has no
right to use a means of performing it forbidden by the Constitution,
no matter how necessary or proper it might be thought to be. But,
sir, this doctrine is monstrous. It has no foundation in the
Constitution. It subjects all the States to the will of Congress; it
places their institutions at the feet of Congress. It creates in
Congress an absolute unqualified despotism. It asserts the power of
Congress in changing the State governments to be “plenary, supreme
and unlimited”—“subject only to revision by the people of the whole
United States.” The rights of the people of the State are nothing,
their will is nothing. Congress first decides, the people of the
whole Union revise. My own State of Ohio is liable at any moment to
be called in question for her constitution. She does not permit
negroes to vote.... From that decision of the Congress there is no
appeal to the people of Ohio, but only to the people of
Massachusetts, and New York, and Wisconsin, at the election of
Representatives; and if a majority cannot be elected to reverse the
decision, the people of Ohio must submit. Woe be to the day when
that doctrine shall be established, for from its centralized
despotism we will appeal to the sword!
The rights of the States, he said in conclusion, had reconciled liberty
with empire, the freedom of the individual with increase of the public
domain; by the proposed measure these were all swept instantly away. It
substituted “despotism for self-government; despotism the more severe
because vested in a numerous Congress elected by a people who may not
feel the exercise of its power.... It maintains integrity of territory
but destroys the rights of the citizen.” Finally he declared that he
preferred separation to the unity which the bill would create.[330]
Debate was concluded by Henry Winter Davis, who rose for the purpose of
perfecting the pending measure by moving as a substitute a bill
essentially the same as that under consideration in the House; from that
plan, however, it differed in two not unimportant particulars. First, it
excluded what his friend Mr. Cox had objected to, the rule of one tenth,
and required a majority to concur in forming a government. The other
softened the operation of the clause excluding officers of the State and
Confederate government, by saving merely ministerial officers and the
inferior military officers; so that the exclusion merely affected
persons of dangerous political influence. By an arrangement with
Thaddeus Stevens, instead of having a direct vote on his substitute, a
portion of it was proposed as a preamble to this bill, which, of course,
would be voted on separately and take whatever fate the House might
assign to it. With these observations Mr. Davis said, “I offer this as a
substitute, and move the previous question upon it.” The substitute was
agreed to, and the amendment to the preamble adopted, the preamble
itself being rejected. By 73 yeas to 59 nays, the bill passed the House,
May 4, 1864.[331]
This important measure authorized the President, by and with the advice
and consent of the Senate, to appoint for each of the States declared in
rebellion a provisional governor, with pay and emoluments not to exceed
that of a brigadier-general of volunteers, and who was to be charged
with the civil administration of such State until a government was
recognized as existing therein. As soon as military resistance to
Federal authority had been suppressed, and the people had sufficiently
returned to their obedience to the Constitution and the laws, it was
made the duty of the governor to direct the United States marshal to
enroll all white male citizens of the United States, resident in the
State, in their respective counties; and wherever a majority of them
took the oath of allegiance, the loyal people of the States were, by
proclamation, to be invited by the governor to elect delegates to a
convention to act upon the reëstablishment of a State government, the
proclamation to prescribe the details of the election. Qualified
electors in the army could vote at the headquarters of their respective
commands. No person who had held or exercised any civil, military, State
or Confederate office under the rebel occupation, and who had
voluntarily borne arms against the United States, could either vote or
be eligible as a delegate. The convention was required to insert in the
constitution the following provisions:
First. No person who has held or exercised any office, civil or
military, except offices merely ministerial and military offices
below colonel, State or Confederate, under the usurping power, shall
vote for or be a member of the Legislature, or Governor.
Second. Involuntary servitude is forever prohibited, and the freedom
of all persons is guaranteed in said State.
Third. No debt, State or Confederate, created by or under the
sanction of the usurping power, shall be recognized or paid by the
State.
Upon the adoption of such a constitution by the convention and its
ratification by the voters of the State the provisional governor should
so certify to the President, who, after obtaining the assent of
Congress, was empowered by proclamation to recognize the government so
established, and none other, as the constitutional government of the
State; from the date of such recognition, and not before, Senators and
Representatives as well as electors for President and Vice-President
could be legally chosen in such State. Until reorganization the
provisional governor was to enforce the laws of the Union, and of the
State before rebellion.
The remaining provisions were as follows: