of the United States, or any proclamation of the President, be
restrained of liberty; with intent to be held in or reduced to
involuntary servitude or labor, the person convicted before a court of
competent jurisdiction of such act shall be punished by a fine of not
less than $1,500, and be imprisoned not less than five nor more than
twenty years.”
By section 14 it was declared that “every person who shall hereafter
hold or exercise any office, civil or military, except offices merely
ministerial, and military offices below the grade of colonel, in the
rebel service, State or Confederate, is declared not to be a citizen of
the United States.”[332]
On the following day the proposed measure came up in the Senate, was
read twice by its title and referred to the Committee on Territories. On
May 27 Mr. Wade reported the bill with amendments, and on June 30
succeeding moved to postpone all prior orders and proceed to its
consideration. His motion, however, was not agreed to, and it was not
till July 1, when the session was drawing rapidly to a close, that its
discussion began. To save time the amendments proposed by the committee
were voted down. Senator Brown, of Missouri, believed that the subject
of reconstruction could and should be postponed to a later day, and
offered for the bill, by way of amendment, a substitute which declared
incapable of voting “for electors of President or Vice-President of the
United States, or of electing Senators or Representatives in Congress,”
until the rebellion was abandoned, the inhabitants of all those States
hitherto proclaimed in a state of insurrection. That question he
regarded as the necessity of the hour.[333]
Mr. Wade hoped this amendment would not prevail; there was nothing, he
asserted, in the argument that sufficient time did not remain for its
careful consideration, because it was early and thoroughly debated in
the House and had been fully discussed by the Senate Committee. It was
five months on their desks and the attention of Senators had often been
called to it. On Republicans at least its consideration had frequently
been urged by himself. More than ordinary care had been taken in this
matter, and if the bill was not then understood it never would be.
The question would arise in the ensuing campaign. Senators, he said, had
been refused admission to Congress, and the principles on which they
would be received should be declared. They were announced in the bill
which had passed the House. It protected the Government against
Confederate sympathizers and guarded the interests of loyal Southerners
during the period of transition.
The status of the seceded States was a question upon which men differed
widely. It was a question to be ascertained and declared by Congress,
“for the Executive ought not to be permitted to handle this great
question to his own liking. It does not belong, under the Constitution,
to the President to prescribe the rule, and it is a base abandonment of
our own powers and our own duties to cast this great principle upon the
decision of the executive branch of the Government.... I know very well
that the President from the best motives undertook to fix a rule upon
which he would admit these States back into the Union. It was not upon
any principle of republicanism; it would not have guarantied to the
States a republican form of government, because he prescribed the rule
to be that when one tenth of the population would take a certain oath
and agree to come back into the Union they might come in as States. When
we consider that in the light of American principle, to say the least of
it, it was absurd. The idea that a State shall take upon itself the
great privilege of self-government when there are only one tenth of the
people that can stand by the principle is most anti-republican,
anomalous, and entirely subversive of the great principles that underlie
all our State governments and the General Government. Majorities must
rule, and until majorities be found loyal and trustworthy for State
government, they must be governed by a stronger hand....
“... I hold that once a State of this Union, always a State; that you
cannot by wrong and violence displace the rights of anybody or
disorganize the State.” It was marvellous to him how gentlemen could
fancy that States forfeited their rights because more or less of the
people had gone off into rebellion, and he added, “This bill proceeds
upon that idea and discards absolutely the notion that States may lose
their rights and that they may be abrogated and may be reduced to the
condition of Territories. It denies any such thing as that. No sound
principle can be adopted that warrants any such thing.”
Noticing the imposition of conditions on the admission or on the
readmission of a State, he remarked that this feature of the bill would
probably receive more criticism than any other, and declared, “that the
great Union party of the country are altogether convinced that slavery
mixed up in a Government is so unsafe, so liable to overthrow that it
cannot be admitted as an element in a State government.... Therefore
this bill has taken special pains to say that the new government shall,
in its constitution, proclaim emancipation as a condition upon which it
shall be permitted to come into the Union.” There was a time, he
admitted, when it would have been deemed unconstitutional in Congress to
prescribe any particular principle for a constitution when a State was
seeking to come into the Union. “We have done so, however,” he asserted,
“in every State that we have ever admitted,” and yet perhaps the
question was never entirely settled. “Would it be wise for us,” he
asked, “in admitting States back into this Union to permit them to come
with the very element that carried them out, with the very seeds of
destruction which had destroyed them already? The framers of this bill,”
he continued, “have sedulously shut it out, and made it a condition on
which the seceded States shall come back that it shall be a fundamental
principle of their constitution that slavery is excluded.”
The amendment of Senator Brown he characterized as a bare negative; it
did not inform the people of the seceded States upon what principle they
were to be again admitted into the Union.[334]
Mr. Carlile, of Virginia, observed on entering into the discussion that
everything the bill proposed to do in the way of remedying existing
evils would be accomplished by adopting the amendment offered by the
Senator from Missouri. The provisions of the bill were not to be
enforced and were not to have any life until after the suppression of
the rebellion, and, therefore, there could be no pressing necessity for
action at that time, when a large majority of Senators expected in three
or four days to leave Washington for their homes. Senator Wade
interrupted him to point out that there was provided a military governor
whose duties could be performed in any stage of the rebellion, from the
time Federal forces obtained a foothold in any State until it was in the
Union again. The Virginia Senator agreed with Mr. Wade as to the extent
of the President’s power in the matter, and in the belief that once a
State in the Union always a State; but the bill, he said, not only
maintained that State governments were overthrown, but so far as it
could do so, recognized and assumed the right to overthrow the State
governments if that work was not already accomplished. If the President
had not the right to prescribe rules for the return of rebellious
States, where was the constitutional provision which authorized Congress
to do so? The title of the bill was an insult, he declared, to the
understanding of every enlightened man in the nation and the bill itself
one of the most revolutionary that ever was proposed in a deliberative
body claiming to be the representatives of a free people.
The question mooted in Congress forty years before, he continued, was
insignificant compared to the present. That was a proposition to impose
upon the inhabitants of a Territory seeking admission into the Union a
restriction upon their right of self-government when they became a
State. After one of the most exhaustive and learned debates that ever
graced the Capitol of the nation that assumption for Congress was
abandoned. It was permitted to rest as the settled law of the land that
Congress had no power to impose limitations affecting the right of the
people of a State to regulate their own domestic affairs, even when
sought to be applied to the inhabitants of a Territory seeking admission
to the Union. This continued the settled action of Congress until
reversed at the preceding session by assuming to create an independent
State out of a portion of the Commonwealth which he represented.
“No State can have a Republican form of government,” he declared, “no
State has a republican government, when that government, no matter what
are its provisions, is prescribed to them by another outside of their
limits. A republican form of government must emanate and emanate alone
from the people that are to be governed. It belongs not to the Congress
of the United States; it belongs not to the thirty-three States of this
Union to prescribe for the smallest State within its folds a
constitution or form of government. If you have a right to impose a
limitation upon this power as to one subject of domestic legislation you
have a right to impose it upon every subject. If you have a right to
make one provision of a constitution for a people you have the right to
make the entire instrument itself.”
An interruption of his argument by Mr. Wade drew from the Virginia
Senator a query rather embarrassing to the Ohio statesman. “Where,”
asked Carlile, “does the Senator derive the power to appoint a governor
for a State, a State which he acknowledges to be in existence, a State
government that he acknowledges to be in existence, a State government
that he acknowledges it to be his duty to protect and maintain? By what
provision of the Constitution does the Senator derive the authority to
appoint for such a State an executive head?” Mr. Wade replied that when
the Constitution imposed the duty of guaranteeing a republican form of
government it conferred the power to do so, and he in turn inquired, “Is
not that good law?” “No, sir,” answered Carlile, who proceeded: “Now,
Mr. President, I will satisfy the Senator himself, I think; and really
it is not necessary for me to attempt to satisfy him, for he is too good
a lawyer not to know the meaning of the word ‘guaranty.’ What is it?
Does the authority to ‘guaranty to each State in this Union a republican
form of government’ authorize this Union to set up a government, to
create a government, or to make a government? Is the maker of a note the
man who guaranties its payment? There is no man in the Senate who knows
better the definition and legal significance of the word ‘guaranty’ than
the Senator from Ohio, and none, I am sure, is more familiar, too, with
the power that was intended to be conferred by this provision of the
Constitution.” After admitting that he would bring the power of the
Government to bear on a faction who undertook to establish a monarchical
form of government, Mr. Wade put this hypothetical case: “Suppose now
that we have conquered them and the people are still bent on their
monarchy, shall we not guaranty a republican government to them by
putting one over them?” “If the Senator be right,” answered Carlile,
“Mr. Madison, the author of the Constitution, was wrong.” He then quoted
from the forty-third number of the Federalist:
“To guaranty to every State in the Union a republican form of
government; to protect each of them against invasion; and on
application of the Legislature, or of the Executive (when the
Legislature cannot be convened), against domestic violence.”
In a confederacy founded on republican principles and composed of
republican members, the superintending government ought clearly to
possess authority to defend the system against aristocratic or
monarchical innovations.
“The very case put by Senator Wade,” observed Carlile; “and how it is to
be done is stated:”
The more intimate the nature of such a Union may be, the greater
interest have the members in the political institutions of each
other; and the greater right to insist that the forms of government
under which the compact was entered into should be _substantially_
maintained.... It may possibly be asked, what need there could be of
such a precaution, and whether it may not become a pretext for
alterations in the State governments, without the concurrence of the
States themselves. These questions admit of ready answers. If the
interposition of the General Government should not be needed, the
provision for such an event will be a harmless superfluity only in
the Constitution. But who can say what experiments can be produced
by the caprice of particular States, by the ambition of enterprising
leaders, or by the intrigues and influence of foreign powers? To the
second question it may be answered that if the General Government
should interpose by virtue of this constitutional authority, it will
be, of course, bound to pursue the authority. But the authority
extends no further than to a _guaranty_ of a republican form of
government, which supposes a _preëxisting government_ of the form
which is to be guarantied.
Sustained in his position by Madison’s commentary Carlile resumed: “Now,
sir, is the Senator answered?... It is not claimed or pretended, I
suppose, by the Senator from Ohio, or by any advocate of this bill, that
under any other provision of the Constitution can a pretext be afforded
for the assertion of such a power as this bill proposes to assert.” To
Senator Wilkinson’s inquiry, what would the Government of the United
States do if the people of South Carolina determined that they would not
have a republican form of government in that State, the Virginia Senator
answered:
“I would have the Government of the United States do nothing that it has
not the power under the Constitution to do, because I believe that the
Government of the United States is a Government of limited powers. I
believe it to be its duty under the grant of power in the Constitution
to guaranty the existence of a preëxisting republican government. That
government existed in South Carolina; the people have not determined, at
least before this war they had not determined, to have any other than a
republican form of government. We had recognized that government as a
republican form of government by the recognition of the State in all its
departments and the admission of all its national representatives. It is
made the duty of the Government of the United States, not of Congress;
and I desire to call the attention of the Senator to that, because it
bears upon his assumption for Congress of power which does not belong to
the Executive. It is not alone the duty of Congress to guaranty a
republican form of government to the people of the several States; the
extent of that guarantee is not limited alone to the means which
Congress may employ; but the words of the Constitution are ‘the United
States shall guaranty.’ Hence every department of the Government is
equally bound; and Congress being the legislative branch of course
participates to a greater extent in the discharge of that duty.”
After a discussion with Mr. Clark, Carlile proceeded in his argument:
“But, sir, the Senator from Ohio says the Union is to be preserved. So
say I. Upon what principle are these States to come back into the Union?
The people, says the Senator from Ohio, will meet you with that inquiry.
Sir, when was ever such an inquiry suggested to the brain of any loyal
man in this Union? When was such an inquiry ever put? Never until after
a policy different from that which characterized the commencement of
this struggle was entered upon by the party in power. All said the Union
was to be restored; all accepted the struggle as the use of the military
power of the Government in the restoration of the Union. What Union? The
Union of the Constitution. The Union into which new States are to be
admitted. It is not into ‘a Union’ but into ‘this Union’ that the States
are admitted. What Union? The Union of the Constitution, none other; and
he who seeks to preserve the Union can only do it by an observance of
the Constitution and of the constitutional means to restore it, not
reconstruct it.
“... In this Union, created by this Constitution, of limited and
delegated powers, all prescribed and written in the instrument, you
propose to exercise your legislative power by usurping the rights and
liberties of the people, a power which all the people you represent
could not use or could not exert without the destruction of the Union
which the Constitution formed. There is no power in this Government,
there is no power in the parties to this Government, there is no power
in all the States of this Union to prescribe a constitution for the
little State of Rhode Island. If every other State in the Union, the
adhering as well as the rebellious States, if every man, woman, and
child in them were to meet and prescribe a constitution for the people
of Rhode Island, they would have no power or authority to do so under
the Union; and tell me where the people’s representatives derive the
power to do that which all the people in their collective capacity, save
the small minority which constitutes that State, cannot do?”[335]
Mr. Carlile emphasized the fact that the bill under consideration was
not a war measure. In a running argument with several Senators he showed
both a ready and comprehensive knowledge of the Constitution and made
some telling points against the bill as well as against the radical
tendencies in Congress. His speech was, perhaps, the very ablest
delivered by any Senator in opposition to the proposed measure. At its
conclusion Mr. Brown’s amendment was agreed to.
An amendment offered by Charles Sumner to enact the Emancipation
Proclamation into a law was rejected by a vote of 21 to 11. The
Massachusetts statesman did not wish, he said, to see the edict of
freedom “left to float on a Presidential proclamation.”[336]
The bill concerning States in insurrection against the United States
then passed the Senate by 26 yeas to 3 nays.[337] When the vote was
taken 20 Senators were absent. On the succeeding day, July 2, 1864, a
message announced the disagreement of the House to the Senate amendment
and requested a committee of conference. A subsequent motion of Mr. Wade
that the Senate recede from its amendment and agree to the bill of the
House was carried after some discussion by a vote of 18 to 14, thus
passing the bill on the same day.[338] The names of Doolittle,
Henderson, Ten Eyck and Trumbull voting with the Democrats in opposition
foreshadowed that division in the Republican ranks which afterwards
occurred.
The history of this famous bill from the moment of its passage by
Congress until the publication a week later of the President’s
proclamation concerning it is best related in the Life of Mr. Lincoln by
his private secretaries, Messrs. Nicolay and Hay. These writers
possessed an unusual opportunity for ascertaining the sentiments of the
President upon nearly every question of public interest.
“Congress,” says the diary of Mr. Hay, “was to adjourn at noon on the
Fourth of July; the President was in his room at the Capitol signing
bills, which were laid before him as they were brought from the two
Houses. When this important bill was placed before him he laid it aside
and went on with the other work of the moment. Several prominent members
entered in a state of intense anxiety over the fate of the bill. Mr.
Sumner and Mr. Boutwell, while their nervousness was evident, refrained
from any comment. Zachariah Chandler, who was unabashed in any mortal
presence, roundly asked the President if he intended to sign the bill.
The President replied: ‘This bill has been placed before me a few
moments before Congress adjourns. It is a matter of too much importance
to be swallowed in that way.’ ‘If it is vetoed,’ cried Mr. Chandler, ‘it
will damage us fearfully in the Northwest. The important point is that
one prohibiting slavery in the reconstructed States.’ Mr. Lincoln said:
‘That is the point on which I doubt the authority of Congress to act.’
‘It is no more than you have done yourself,’ said the Senator. The
President answered: ‘I conceive that I may in an emergency do things on
military grounds which cannot be done constitutionally by Congress.’ Mr.
Chandler, expressing his deep chagrin, went out, and the President,
addressing the members of the Cabinet who were seated with him, said: ‘I
do not see how any of us now can deny and contradict what we have always
said, that Congress has no constitutional power over slavery in the
States.’ Mr. Fessenden expressed his entire agreement with this view. ‘I
have even had my doubts,’ he said, ‘as to the constitutional efficacy of
your own decree of emancipation, in those cases where it has not been
carried into effect by the actual advance of the army.’
“The President said: ‘This bill and the position of these gentlemen seem
to me, in asserting that the insurrectionary States are no longer in the
Union, to make the fatal admission that States, whenever they please,
may of their own motion dissolve their connection with the Union. Now we
cannot survive that admission, I am convinced. If that be true, I am not
President; these gentlemen are not Congress. I have laboriously
endeavored to avoid that question ever since it first began to be
mooted, and thus to avoid confusion and disturbance in our own councils.
It was to obviate this question that I earnestly favored the movement
for an amendment to the Constitution abolishing slavery, which passed
the Senate and failed in the House. I thought it much better, if it were
possible, to restore the Union without the necessity of a violent
quarrel among its friends as to whether certain States have been in or
out of the Union during the war—a merely metaphysical question, and one
unnecessary to be forced into discussion.’
“Although every member of the Cabinet agreed with the President, when, a
few minutes later, he entered his carriage to go home, he foresaw the
importance of the step he had resolved to take and its possibly
disastrous consequences to himself. When some one said to him that the
threats made by the extreme radicals had no foundation, and that people
would not bolt their ticket on a question of metaphysics, he answered:
‘If they choose to make a point upon this, I do not doubt that they can
do harm. They have never been friendly to me. At all events, I must keep
some consciousness of being somewhere near right. I must keep some
standard or principle fixed within myself.’”[339]
A perusal of the preceding abridgment of debates shows clearly that the
bill was designed by Congress as a measure of reconstruction and
intended by many of its leading advocates as a rebuke of the President.
He was not, however, a statesman whom even the deliberate censure of a
coördinate branch of Government could hurry into an act of rashness; he
had never been precipitate; indeed, the burden of radical criticism was
that Mr. Lincoln was provokingly slow. This was the opinion which
Charles Sumner expressed in confidential correspondence with his English
friends[340] and which Secretary Chase entered in the pages of his
diary.[341] The President was, it is true, the most cautious of men, and
the fact goes far to explain the absence during his eventful
administration of even a single serious blunder; the discovery of a
gross error of judgment seldom or never rewarded the researches of his
ablest critics. Though his modesty was scarcely less than his prudence,
he entertained a just conception of the dignity of his office; long
reflection upon constitutional questions, which made him familiar with
the extent of executive power, taught him likewise to recognize those
limitations which the fundamental law had imposed upon legislative
action. Another characteristic which made him a formidable adversary in
every controversy was a constant purpose to be always, as he expressed
it himself, “somewhere near right.”
The measure had been so long under consideration that none of its
provisions could have taken him by surprise, and we are justified in
concluding that when the bill was presented for his approval he had
already determined on his course of action. Indeed there is evidence
that some of his supporters in Congress had written to their friends in
Louisiana predicting the very fate that afterward befell the bill. Their
outline of the President’s course admits of no other explanation than
that he had communicated to them his intentions respecting it. The
progress of the measure in the Senate was to be so retarded that the
adjournment of Congress would relieve him of the necessity of exercising
the veto, and that is precisely what happened. In the very last hour of
the session it was submitted for his approval; his disposal of the bill
on that occasion has already been noticed; his approval was withheld and
Congress rose before the expiration of the ten days which would enact
the bill into a law without his signature. Though an interested view had
not been overlooked, he disregarded in discharge of his duty every
personal consequence of the important step which he purposed to take.
His hostility to the measure had long been suspected, but when knowledge
of his failure to approve it had become a certainty the anger of the
more radical members of his party became extreme. They had clearly been
outwitted by the President and many of them, eager for retaliation,
returned to their homes meditating schemes of revenge.
For the present, at least, anything like adequate discipline of Mr.
Lincoln was not within their power, for the Baltimore convention, which
renominated him for the Presidency, had adjourned nearly a month before.
This at least was secure. His election, though not entirely a foregone
conclusion, was reasonably assured; few of the discomfited members even
imagined the thought of injuring their party to embarrass the President.
It is easy to believe, however, that they intended such criticism of his
policy as would be consistent with party success. But even here he
resolved to dispute with them a field of operations which they believed
entirely their own. The President, it is true, could not, even if so
inclined, justify his conduct in person before the voters of every State
in the Union; he could, however, and did forestall expected criticism
from Congressmen by publishing a proclamation vindicating his “pocket”
veto, thus destroying whatever hope remained to radical Republicans of
diminishing his popularity by ascribing to him base or selfish motives
for opposing the sense of the Legislative department of Government. As
on other critical occasions so on this he found no precedent to guide
him, but with characteristic firmness proceeded deliberately to
establish one. When some of the Congressmen reached their States they
found their constituents already pondering the proclamation of July 8,
1864. Its importance requires that it be quoted in full:
Whereas, at the late session, Congress passed a bill to “guarantee
to certain States, whose governments have been usurped or
overthrown, a republican form of government,” a copy of which is
hereunto annexed;
And whereas the said bill was presented to the President of the
United States for his approval less than one hour before the _sine
die_ adjournment of said session, and was not signed by him;
And whereas the said bill contains, among other things, a plan for
restoring the States in rebellion to their proper practical relation
in the Union, which plan expresses the sense of Congress upon that
subject, and which plan it is now thought fit to lay before the
people for their consideration:
Now, therefore, I, Abraham Lincoln, President of the United States,
do proclaim, declare, and make known, that, while I am (as I was in
December last, when by proclamation I propounded a plan for
restoration) unprepared, by a formal approval of this bill, to be
inflexibly committed to any single plan of restoration; and, while I
am also unprepared to declare that the free-State constitutions and
governments already adopted and installed in Arkansas and Louisiana
shall be set aside and held for naught, thereby repelling and
discouraging the loyal citizens who have set up the same as to
further effort, or to declare a constitutional competency in
Congress to abolish slavery in States, but am at the same time
sincerely hoping and expecting that a constitutional amendment
abolishing slavery throughout the nation may be adopted,
nevertheless I am fully satisfied with the system for restoration
contained in the bill as one very proper plan for the loyal people
of any State choosing to adopt it, and that I am, and at all times
shall be, prepared to give the Executive aid and assistance to such
people, so soon as the military resistance to the United States
shall have been suppressed in any such State, and the people thereof
shall have sufficiently returned to their obedience to the
Constitution and laws of the United States, in which cases Military
Governors will be appointed, with directions to proceed according to
the bill.[342]
This unexpected publication was very differently received by the various
elements composing the Republican party; a large majority of those
acting with that organization still confided in Mr. Lincoln; by the
radical wing, however, he was sharply censured. Notwithstanding the
necessity for harmony in the approaching campaign two of the boldest
leaders, disregarding every consideration of prudence, arraigned the
President in language which for severity was never surpassed by the
invectives of his ablest political opponents. In the entire experience
of the Republic no Executive had ever assumed to reject those provisions
in a legislative measure which he disliked and adopt those that were
acceptable. This is precisely what Mr. Lincoln did, and the reasons for
his action he declared to the people with a confidence which forcibly
recalls the direction of Andrew Jackson to the editor of his official
organ: “Speak out to the people, sir, and tell them that instead of
supporting me and my policy Congress is engaged in President-making.”
There was, however, this difference: Abraham Lincoln addressed the
people directly and ventured no criticism of their representatives. Like
his more impulsive though not less popular predecessor he was not
deceived in the reliance which he placed in the patriotic instincts of
the multitude, which cared little for nice metaphysical distinctions; by
the masses of the people he was trusted to the end.
By Henry Winter Davis and Benjamin F. Wade, chief authors of the bill,
its progress had been watched with feverish anxiety; when convinced that
their labor was lost they became greatly agitated and made no effort to
conceal their indignation at the conduct of the President. Their joint
protest, printed in the _New York Tribune_ of August 5, was, perhaps,
the most bitter attack made upon Mr. Lincoln during his Presidential
career. Their fierce manifesto, addressed “To the supporters of the
Government,” declares that the writers had “read without surprise, but
not without indignation, the proclamation of the President of the 8th of
July, 1864.
“The supporters of the Administration are responsible to the country for
its conduct; and it is their right and duty to check the encroachments
of the Executive on the authority of Congress, and to require it to
confine itself to its proper sphere.”
The paper then related the history of the bill. Its treatment by the
President, they declared, indicated a persistent though unavowed purpose
to defeat the will of the people by the Executive perversion of the
Constitution. They insinuated that only the lowest personal motives
could have dictated this action. “The President,” they said, “by
preventing this bill from becoming a law, holds the electoral votes of
the rebel States at the dictation of his personal ambition.
“If those votes turn the balance in his favor, is it to be supposed that
his competitor, defeated by such means, will acquiesce?
“If the rebel majority assert their supremacy in those States, and send
votes which elect an enemy of the Government, will we not repel his
claims?
“And is not that civil war for the Presidency inaugurated by the votes
of the rebel States?
“Seriously impressed with these dangers, Congress, ‘_the proper
constitutional authority_,’ formally declared that there are no State
governments in the rebel States, and provided for their erection at a
proper time; and both the Senate and the House of Representatives
rejected the Senators and Representatives chosen under the authority of
what the President calls the free constitution and government of
Arkansas.
“The President’s proclamation ‘holds for naught’ this judgment, and
discards the authority of the Supreme Court, and strides headlong toward
the anarchy his proclamation of the 8th of December inaugurated.
“If electors for President be allowed to be chosen in either of those
States, a sinister light will be cast on the motives which induced the
President to ‘hold for naught’ the will of Congress rather than his
government in Louisiana and Arkansas.
“The judgment of Congress which the President defies was the exercise of
an authority exclusively vested in Congress by the Constitution, to
determine what is the established government in a State, and in its own
nature and by the highest judicial authority binding on all other
departments of the Government.”
They ridiculed the President’s expressed hope that the constitutional
amendment abolishing slavery might be adopted. “We curiously inquire,”
continue Messrs. Wade and Davis, “on what his expectation rests, after
the vote of the House of Representatives at the recent session, and in
the face of the political complexion of more than enough of the States
to prevent the possibility of its adoption within any reasonable time;
and why he did not indulge his sincere hopes with so large an
installment of the blessing as his approval of the bill would have
secured?
* * * * *
“A more studied outrage on the legislative authority of the people has
never been perpetrated.
“Congress passed a bill; the President refused to approve it, and then
by proclamation puts as much of it in force as he sees fit, and proposes
to execute those parts by officers unknown to the laws of the United
States, and not subject to the confirmation of the Senate.
“The bill directed the appointment of provisional governors by and with
the advice and consent of the Senate.
“The President, after defeating the law, proposes to appoint, without
law and without the advice and consent of the Senate, military governors
for the rebel States!
“He has already exercised this dictatorial usurpation in Louisiana, and
defeated the bill to prevent its limitation.”
Scarcely an expression of the proclamation, which was examined in
detail, escaped its share of censure or of ridicule. To suppose that the
President was ignorant of the contents of the bill was out of the
question, for it had been discussed, they asserted, during more than a
month in the House of Representatives, by which it was passed as early
as the 4th of May. It passed the Senate in absolutely the form in which
it came from the House. Indeed, at the President’s request, a draft of a
bill substantially the same in material points, and almost identical in
those features objected to by the proclamation, was submitted for his
consideration during the winter of 1862–1863.
The “Protest” included also a sharp contrast between the Executive plan
of December 8, 1863, and that embodied in the bill which had passed
Congress. That measure, said Messrs. Wade and Davis, required a majority
of the voters to establish a State government, the proclamation was
satisfied with one tenth; “the bill requires one oath, the proclamation
another; the bill ascertains voters by registering, the proclamation by
guess; the bill exacts adherence to existing territorial limits, the
proclamation admits of others; the bill governs the rebel States _by
law_, equalizing all before it, the proclamation commits them to the
lawless discretion of military governors and provost marshals; the bill
forbids electors for President (in the rebel States), the proclamation
and defeat of the bill threaten us with civil war for the admission or
exclusion of such votes....”
This arraignment of the President’s course concluded with the language
of admonition, if not indeed of absolute menace: “The President has
greatly presumed on the forbearance which the supporters of his
Administration have so long practised, in view of the arduous conflict
in which we are engaged, and the reckless ferocity of our political
opponents.
“But he must understand that our support is of a cause, and not of a
man; that the authority of Congress is paramount and must be respected;
that the whole body of the Union men of Congress will not submit to be
impeached by him of rash and unconstitutional legislation; and if he
wishes our support, he must confine himself to his Executive duties,—to
obey and execute, not make the laws,—to suppress by arms armed
rebellion, and leave political reorganization to Congress.
“If the supporters of the Government fail to insist on this, they become
responsible for the usurpations which they fail to rebuke, and are
justly liable to the indignation of the people whose rights and
security, committed to their keeping, they sacrifice.
“Let them consider the remedy for these usurpations, and, having found
it, fearlessly execute it.”[343]
The authors of this remarkable paper were eminent in the councils of
their party and stood high in the estimation of Union men everywhere.
Senator Wade was distinguished no less for his physical than for his
moral courage—qualities impaired somewhat, it is true, by a temper
fierce and vindictive. Henry Winter Davis, whose zeal for civil liberty
will constitute his best claim to the gratitude of posterity, possessed
literary gifts scarcely surpassed by any statesman then in public life.
Though treated with extreme fairness, not to say generosity, by the
President, he pursued toward the Administration a course of consistent
hostility. This opposition, which even Mr. Lincoln’s tact could never
disarm, has been ascribed to disappointment at his failure to obtain a
place in the Cabinet. While the selection of Montgomery Blair from his
own State of Maryland may have been a cause of estrangement, a sense of
what Mr. Davis regarded as public duty contributed, doubtless, to
intensify this feeling, which led him ultimately to think the President
scarcely entitled to courteous treatment. With the Ohio Senator the
pitiless maxim, _vae victis_, had an undoubted influence. Both were
gentlemen of wide experience and acknowledged ability, and yet their
vigorous and fearless arraignment of the President revealed an
astonishing lack of political sagacity. They inquired, for example, on
what foundation he rested his expectation of an adoption of the
constitutional amendment abolishing slavery. The incorporation, soon
after, of such a provision in the fundamental law shows their want of
insight into the tendencies of the times. The fire of the prophet,
indeed, was present in the protest; his inspiration was altogether
wanting. Their absurd assertion that the electoral votes of Louisiana,
Arkansas and Tennessee were the prime consideration with the President
must be attributed to the passion rather than to the reason of his
critics, for few men of that generation were more familiar with the
Constitution in all its relations. Better than most of their readers
they knew that the duty of counting such votes was entrusted not to a
possibly interested Executive, but to a joint convention of both Houses.
If the Maryland member believed the President had committed the
misdemeanors charged and insinuated it was his duty to bring before the
House the question of impeachment. Far less than was expressed in the
protest would have been ground for investigation. If tenderness to
Lincoln, a weakness of which Mr. Davis at least was never suspected, or
a concern for party welfare prevented such a step, then he was himself
guilty of a gross neglect of duty. Doubtless this consideration,
together with the want of moderation shown in the manifesto, subjected
its authors to a suspicion of insincerity. Indeed, one does not read a
dozen lines of their arraignment without discovering the chief if not
the sole cause of its publication. “The President,” they say, “did not
sign the bill ‘to guarantee to certain States whose governments have
been usurped, a republican form of government’—passed by the supporters
of his Administration in both Houses of Congress after mature
deliberation.” In brief, the political departments of Government had
entered upon a struggle for power; Congress had been defeated, and its
discomfited leaders sought to relieve their feelings by railing at the
President.
Except that it probably defeated the renomination of Mr. Davis for
Congress, their protest was followed by no political result of
moment.[344] In it the mass of Republicans perceived only the seeds of
dissension within their ranks. In this view it was a source of delight
to Democrats, though they felt little sympathy with either the defeated
bill or the purposes of its chief authors.
-----
Footnote 309:
See p. 23, _ante_.
Footnote 310:
Globe, Part I., 1 Sess. 38th Cong., p. 33.
Footnote 311:
Globe, Part I., 1 Sess. 38th Cong., p. 34.
Footnote 312:
Appendix, Part IV., Globe, 1 Sess. 38th Cong., pp. 82–85; also
Speeches and Addresses of Henry Winter Davis. New York: Harper &
Brothers, 1867, pp. 368–383.
Footnote 313:
Globe, Part III., 1 Sess. 38th Cong., pp. 1970–1972.
Footnote 314:
Globe, Part III., 1 Sess. 38th Cong., pp. 1974–1981.
Footnote 315:
Ibid., pp. 1981–1983.
Footnote 316:
Globe, Part III., 1 Sess. 38th Cong., pp. 2002–2006.
Footnote 317:
Globe, Part III., 1 Sess. 38th Cong., p. 2008.
Footnote 318:
Globe, Part III., 1 Sess. 38th Cong., pp. 2011–2014.
Footnote 319:
Globe, Part III., 1 Sess. 38th Cong., p. 2038.
Footnote 320:
Globe, Part III., 1 Sess. 38th Cong., pp. 2039–2041.
Footnote 321:
Ibid., p. 2041.
Footnote 322:
Globe, Part III., 1 Sess. 38th Cong., pp. 2041–2042.
Footnote 323:
Ibid., p. 2043.
Footnote 324:
Globe, Part III., 1 Sess. 38th Cong., p. 2071.
Footnote 325:
Globe, Part III., 1 Sess. 38th Cong., p. 2073.
Footnote 326:
Ibid., p. 2074.
Footnote 327:
Globe, Part III., 1 Sess 38th Cong., p. 2078.
Footnote 328:
Globe, Part III., 1 Sess. 38th Cong., pp. 2095–2102.
Footnote 329:
Globe, Part III., 1 Sess. 38th Cong., pp. 2102–2105.
Footnote 330:
Globe, Part III., 1 Sess. 38th Cong., pp. 2105–2107.
Footnote 331:
Globe, Part III., 1 Sess. 38th Cong., p. 2108.
Footnote 332:
Globe, Part IV., 1 Sess. 38th Cong., pp. 3448–3449.
Footnote 333:
Ibid., p. 3449.
Footnote 334:
Globe, Part IV., 1 Sess. 38th Cong., pp 3448–3450.
Footnote 335:
Globe, Part IV., 1 Sess. 38th Cong., pp. 3451–3453.
Footnote 336:
Ibid., p. 3460.
Footnote 337:
Globe, Part IV., 1 Sess. 38th Cong., p. 3461.
Footnote 338:
Ibid., p. 3491.
Footnote 339:
Diary of John Hay, quoted in Abraham Lincoln, A History, Vol. IX. pp.
120–122.
Footnote 340:
Pierce’s Memoir of Sumner, Vol. IV. pp. 57, 60, 83, 84, 106, 108, 130,
etc.
Footnote 341:
Shuckers’ Life of Chase, pp. 440n, 442, 453, 495.
Footnote 342:
Letters and State Papers of Abraham Lincoln, Vol. II. p. 545;
McPherson’s Pol. Hist., pp. 318–319.
Footnote 343:
Ann. Cycl., 1864, pp. 307–310n.
Footnote 344:
Twenty Years of Congress, Vol. II. p. 44.
VIII
AN ATTEMPT TO COMPROMISE
When Congress met in December, 1864, Mr. Lincoln, who received the
electoral votes of twenty-two of the twenty-five States participating in
the contest, had again been chosen President. In the struggle for power
he had refrained with his usual prudence from improving his advantage
over the Legislative department. The annual message omitted all
reference to the controversy occasioned by his failure to sign, and his
proclamation concerning, the bill of Messrs. Wade and Davis; the
question of reconstruction was noticed in only the most casual manner. A
statement of the satisfactory condition of foreign relations introduced
the Executive communication; the subject of finance received the
consideration that its importance required. The vast proportions and the
efficient state of the navy were mentioned as matter of congratulation.
General Sherman’s projected march of three hundred miles through hostile
regions was characterized as the most remarkable feature in the military
operations of the year. This with other evidences of approaching
disruption in the Confederacy led logically to a summary of what had
been accomplished toward reorganization in those States already wrested
from insurgent armies. On this subject the message observed: “Important
movements have also occurred during the year to the effect of molding
society for durability in the Union. Although short of complete success,
it is much in the right direction that twelve thousand citizens in each
of the States of Arkansas and Louisiana have organized loyal State
governments, with free constitutions, and are earnestly struggling to
maintain and administer them.”[345] Movements in the same direction, he
said, more extensive though less definite, were in progress elsewhere
and should not be overlooked. No plan of reconstruction was proposed, or
even alluded to in the message.
Among questions beyond Executive authority to adjust was specified the
admission of members to Congress. In disclaiming power over this subject
he anticipated the criticism of those Senators and Representatives who
later in the session ascribed to him a design to usurp important
functions of the Legislative branch of Government.
From its concluding paragraphs we are enabled to collect the sentiments
of the President relative to his offer, a year before, of a general
pardon to designated classes upon specified terms. In this connection he
said: “But the time may come—probably will come—when public duty shall
demand that it [the door open to repentant rebels] be closed; and that,
in lieu, more rigorous measures than heretofore shall be adopted.” This
seems to establish beyond question the fact that Mr. Lincoln feared some
measures more stringent than he had been hitherto pursuing might be
rendered necessary by the failure of a policy of clemency to recall any
large number of insurgents to their obedience to the Constitution and
the laws.
He ventured to recommend a reconsideration of the proposed
constitutional amendment abolishing slavery throughout the United
States, which at the preceding session had passed the Senate, but failed
to receive in the House the requisite two thirds vote. Though the
present, he reminded them, was the same Congress and composed of nearly
the same members, their judgments were, no doubt, influenced by an
intervening election, which, though it imposed on them no obligation to
change their views, made it reasonably certain that if they did not
submit the amendment to the States the succeeding Congress would. He
inquired, since its passage was merely a question of time, whether they
would not agree that the sooner the better? The voice of the people, he
added, had for the first time been heard on that question.[346]
As the President believed, the House had been so far converted to his
views that a joint resolution adopting the amendment was passed early in
the session by a vote of 119 to 56.[347]
When Congress assembled the public was occupied chiefly in watching the
progress of naval and military operations. The sinking of the _Alabama_
and the capture of the _Florida_ practically ended Confederate
privateering, for any expectations based upon the escape of the
_Albemarle_ were frustrated by the enterprise and daring of Lieutenant
Cushing. One army had been destroyed by Sheridan, another crippled by
Thomas. Tidings of telling blows inflicted by General Sherman gave
something like assurance of his safety. Though not without heavy loss,
Grant had forced Lee within the defences of Richmond and Petersburg.
Some of the lesser Union advantages had, it is true, been offset by
Southern victories; signs of disintegration within the Confederacy,
however, were multiplying, and this condition forced upon Congress the
inevitable question of reconstruction.
By unanimous consent of the House Thaddeus Stevens, on December 8,
offered resolutions distributing the President’s message. To the
Committee on the Rebellious States was referred so much of it as was
alleged to relate “to the duty of the United States to guaranty a
republican form of government to the States in which the governments
recognized by the United States have been abrogated or overthrown.”[348]
Nothing whatever in the message or the accompanying documents related to
any such duty on the part of the United States, and the resolution
assumed such a recommendation, no doubt, for the purpose of bringing the
subject before Congress. One week later, Mr. Ashley, of Ohio, reported a
bill, on the subject of Stevens’s resolution, which was read twice,
ordered to be printed and returned to the Committee. On January 12
succeeding Representative Eliot, of Massachusetts, gave notice of his
intention to offer at the proper time an amendment to the bill in charge
of Mr. Ashley. No objection having been made, it was ordered to be
printed. This was, in fact, a substitute for the bill reported by the
Ohio member, and provided “that no State engaged in rebellion against
the Government of the United States shall be allowed to resume its
political relations with the Government of the United States until by
the action of the loyal citizens within the limits of the same a State
constitution shall be ordained and established, republican in form,
forever prohibiting involuntary servitude within the State, and
guarantying to all persons freedom and equality of rights before the
law.” Its second section provided “that the State of Louisiana shall be
permitted to renew its political relations with the Government of the
United States under the constitution adopted by the convention assembled
at New Orleans on the 6th of April, 1864.”[349]
That some of the more influential among the radical members desired to
avoid, if possible, a controversy with the President may be fairly
inferred from a letter of Charles Sumner, written December 27, 1864, to
Doctor Lieber. Among other things the Senator says: “I have presented to
the President the duty of harmony between Congress and the Executive. He
is agreed. It is proposed to admit Louisiana (which ought not to be
done), and at the same time pass the reconstruction bill for all the
other States, giving the electoral franchise to ‘all citizens’ without
distinction of color. If this arrangement is carried out, it will be an
immense political act.”[350] A communication to John Bright, written a
few days after the above, January 1, 1865, confirms this view. On that
occasion Mr. Sumner said: “The President is exerting every force to
bring Congress to receive Louisiana under the Banks government. I do not
believe Louisiana is strong enough in loyalty and freedom for an
independent State. The evidence on this point seems overwhelming. I have
discussed it with the President, and have tried to impress on him the
necessity of having no break between him and Congress on such questions.
Much as I am against the premature recognition of Louisiana, I will hold
my peace if I can secure a rule for other States, so that we may be
saved from daily anxiety with regard to their condition.”[351] These
passages explain the amendment to the revived bill. Sumner was willing
to remain a neutral spectator of the debates on the recognition of
Louisiana provided the reorganization of the remaining States should be
made on the lines indicated by Congress.
On January 16, Ashley’s bill was reached in the regular order of
business; by direction of the Committee on the Rebellious States, it was
offered as a substitute for the original measure, from which it differed
in one very important particular. It expressly recognized the loyal
governments of both Louisiana and Arkansas. By unanimous consent the
proposed enactment, considered as an original bill, was offered for the
plan submitted by Henry Winter Davis at the preceding session.
Representative William D. Kelley, of Pennsylvania, would amend the
clause providing for the enrollment of “all the white male citizens of
the United States” by inserting the words “and all other male citizens
of the United States who may be able to read the Constitution thereof.”
Mr. Eliot then introduced the amendment of which he had previously given
notice. By Representative Arnold another amendment was offered to that
of Eliot.
Judge Kelley opened the debate by declaring that indemnity for the past
the victors in the war could not hope to obtain; they could, however,
demand security for the future. In a very long speech he discussed the
status of the negro in the early days of the Republic; this portion of
his address was concluded with the remark that his amendment did not
contemplate that the entire mass of people of African descent, degraded
and brutalized by laws and customs, be immediately clothed with all the
rights of citizenship, but only those so far fitted by education for its
judicious exercise as were able to read the Constitution and the laws of
the United States. This, indeed, he admitted, was only an entering wedge
and was to be regarded as an aid to their improvement; when sufficiently
advanced they were to be endowed with every right necessary to their
protection. A strong plea was made to confer the suffrage on the colored
man; otherwise, asked the Pennsylvania member, how will it be possible
to prevent his subjugation? He would not rely on men’s abstract sense of
justice, for that had not prevented outrages in the past. Justice should
be embodied in laws and constitutions while it was in the power of
Congress to do so. That body was to determine who should select
delegates to the conventions that were to frame governments for the
insurgent States. The Union minorities in the South required the
political support of every loyal man in their communities. It was the
power, he reminded Representatives, not the spirit of the rebellion that
Federal armies were overthrowing. In conclusion he declared himself in
favor of conferring the suffrage on “every man who fights or pays,” a
doctrine which he ascribed to Jefferson, in whose party he said he had
been trained.[352]
Mr. Eliot, who spoke on January 17, regretted that he had not been able
to support the amended bill reported from the select committee. Partly
because of the interest, he said, which his friend Henry Winter Davis
took in the subject he came to its consideration prepossessed in its
favor. The provisions of the measure passed at the preceding session,
however, were not then discussed. There were strong reasons for action
at that time which no longer existed to the same extent. There was time
enough on the present occasion, January, 1865, to make it more perfect
and more practicable than the plan offered by the committee.
Entering upon an examination of the bill he declared that its terms were
peremptory; eleven States were in rebellion, and by the first section
the President was called upon to appoint for each of them a provisional
governor. Such appointments were to be made when the measure became a
law. Except in Louisiana, Arkansas and Tennessee these appointments
would be not only useless but a needless source of expense, and though
section _fifteen_ recognized the governments established in the two
former, the machinery of the bill would be applied to all the States in
rebellion.
It imposed upon the several governors proposed to be appointed executive
duties which they could not assume until the power of the United States
had vindicated itself within those States; there were other duties which
they should not be required to perform. They were to see that the laws
which were in force in that section in 1860 should be faithfully
executed, with no knowledge on the part of the House of the import of
those laws. Why should Congress assume responsibility for enforcing the
black code? Why demand the enforcement, he asked, of minute police
regulations in States where complexion appointed or reduced punishment?
Other laws were specified, such as those punishing the circulation of
books or writings advocating human rights, laws requiring the removal
from those States of free persons of color, prohibiting them from
engaging in business, and punishing by the lash upon suspicion of false
testimony and before conviction. There was a law, he said, in one of
those States requiring the imprisonment of free colored sailors in her
ports.[353] These provisions and many others of the same tenor were
contained in the statute books of those States in 1860 and had been
enforced. The penalty differed according to color; offences when
committed by a white man were punished in one way, and when committed by
colored men in another way. The provisional governor was charged with
the faithful execution of such laws.
The provision for the assessment and collection of taxes he
characterized as a remarkable proposition; they were to be imposed
without representation, without any persons at the national capital to
enlighten Congress on the subject; they were to be laid without the
knowledge of the parties concerned or the parties to be affected.
The sixth section, he continued, provided that every person who should
thereafter hold certain offices in the Confederacy was “declared not to
be a citizen of the United States.” That, Mr. Eliot contended, was
applying the punishment before the offence had been committed. If
Congress declared that a man should for a certain offence be deprived of
citizenship, could he, then, be indicted for treason subsequently
committed?
The question of electing delegates to constitutional conventions
presented a practical difficulty. Colored soldiers and sailors in the
service were made voters by the bill; but they were not enrolled, they
were not registered or credited to any county or parish; they were
aggregated. They had no legal local habitation. They may have belonged
to men owning plantations in several districts. The bill did not
designate. With the white soldier the case was different, for he was
known to belong to a certain district. If colored men entitled, because
of military or naval service, to participate in the choice of delegates
should be out of the service before the election occurred, and others
should have taken their places, which class could vote, those in the
service of the Government when the election for delegates took place, or
those serving when the bill passed Congress?
Whether the difficulties pointed out were inseparable from any bill on
the subject, he would not undertake to say. But in his judgment it would
be unsafe for Congress to permit a measure containing such provisions to
become a law. “Why,” he asked, “is it not more wise to take the States
as they shall present themselves for admission?” Arkansas had acted in
one way, Louisiana in another, and Tennessee was proceeding in still a
different manner.
Notwithstanding his objections to some features of the Louisiana
constitution, he favored her recognition. From information derived from
the highest sources, he had no doubt that her Legislature would supply
such deficiencies. There were influences bearing on that body which he
believed could not be resisted.
Thaddeus Stevens inquired, “If Louisiana and those other States are in
the Union, by what authority do we legislate for their internal police?”
This provoked laughter on the Democratic side of the House. “If they are
in the Union,” answered Mr. Eliot, “just as Pennsylvania is, we ought
not to; but the difficulty is that they are not in the Union in that
sense, to that extent, thus fully. They are not out of the Union
territorially, and yet rebellion has overthrown their governments for a
time, and it is needful that the Congress of the United States should
intervene and should legislate.” To this the Pennsylvania leader further
observed, “I understand the gentleman to say that they are partly in the
Union, and partly out. About how much are they in the Union and about
how much out?” This keen thrust was greeted by more laughter from the
Democratic members.[354]
On his motion to postpone further consideration for two weeks Mr. Wilson
demanded the previous question. Henry Winter Davis appealed to him to
withdraw the motion. This Mr. Wilson declined to do, upon which the
Maryland member observed, “a vote to postpone is equivalent to a vote to
kill the bill.” By 103 yeas to 34 nays, however, further debate was
postponed till the 1st of February succeeding.[355]
Though Representative Washburne, of Illinois, moved on February 7 a
further postponement of two weeks, the subject was before the House
again on the following day, when it went over informally. Debate was not
resumed till the 20th, when Mr. Dawes, of Massachusetts, took the floor.
The Thirty-eighth Congress, he said, was in the last days of its last
session; a bill containing the main features of the measure under
consideration, though it passed both Houses, failed at the preceding
session to become a law; this circumstance led him to make a careful
examination of the subject. The proposed enactment was not designed to
invigorate the army, the navy or the Executive; it was intended rather
to follow the army. It was intended to be applied to the condition in
which the army left the State. “it is an attempt,” he said, “to gather
up the ‘_disjecta membra_’ of those States, the broken and torn
fragments of those communities, and out of the chaos, as well as the
ruins and _debris_ that are left in the march of those armies, to create
a State capable of discharging the functions, exercising the authority,
and invoking the recognition of this Government, and of the people under
which it lives....
“... The bill proceeds upon the supposition not only that there are
States still existing, but that their old constitutions and laws are
still in full force and operation”; for it imposed upon the provisional
governor the faithful execution of those laws in force when rebellion
overthrew their State governments, with the single exception of the
provision touching the enforcement of laws against slavery and the mode
of trial and punishment of colored people. Two remarkable features of
the bill, he asserted, were those empowering the Executive in
Washington, by and with the advice and consent of the Senate, to appoint
governors in every one of those States; then, no matter what provisions
for their election existed in the State law, the President was
authorized to appoint just as many and just as few officers as he
pleased. It might be a judge of the highest court of judicature in the
State; or it might be the humblest road-master; it might be any one or
all of the countless corps between them. There was no provision in the
bill that they should be even residents of the State. “An army of
officers,” he continued, “in one paragraph of four lines, is here
created, subject to the sole authority and control of the President of
the United States.” In a Confederate report Mr. Dawes noticed that there
were 13,000 of them in a single State.
“What,” he asked, “is the effect to be on the people over whom, from
every quarter of this Union, broken-down politicians, men without place,
foot-loose, are to be placed? Sir, it is a reproach to our Government at
this hour that there are, about this capital and in the Northern States,
men who have been appointed to the judgeships of district and other
courts of the rebel States and Territories, drawing quarterly the
salaries of those offices, although they have never been able, from the
hour they received their commissions to the present moment to set foot
in the States over whose courts they have been appointed. They could not
go one rod into the State, positions in whose highest courts they have
held for more than a year, without being hung on the first tree.... But
my friend [Mr. Ashley] has reported a bill here which authorizes an army
of thousands of these officeholders to go into those States, with
commissions from this capital in their pockets, to lord it over the
poor, miserable inhabitants left behind the army there. These rebel
States may be thus converted into asylums for broken-down politicians.”
In the language of indignation he entered into a criticism of that
policy which proposed to levy on the houseless and homeless wanderers in
the South, even then only saved from starvation by the charity of the
North, precisely the same amount of taxes raised in 1860 when, by
comparison, the people were in a princely state. “Sir,” he declared,
“there is not an army, great as our army is, that has power enough to
accomplish that one single feat provided for in this bill, for the very
plain reason that there is not money enough left in any one of these
States outside the Government with which to pay that round sum for one
single year.... This wise, efficacious policy is resorted to in this
bill to hasten on, I suppose, that other day mentioned in it, when a
majority of these people, molded by this process, won by its benignity
‘shall voluntarily take the oath of allegiance.’”
He asserted, as Eliot had done, that the committee were calling upon
Congress to sanction all the black codes of those States, save only that
part which held men in bondage, and that was allowed to enforce itself.
The omissions, he asserted, were not less remarkable than the provisions
of the bill. The state of things established by it was of indefinite
duration. There was no provision for the peculiar conditions existing
there. “There is no attempt at any adaptation of these laws to the new
state of things consequent upon the rebellion, and consequent upon our
constitutional action here. Not only is there no provision for the new
wants and necessities of this wasted and wretched people who have been
involved in the rebellion, but for that other people who have now passed
into freedom by our legislation, and by the military consequences of
this rebellion, who are now without food, without subsistence, without
knowledge, and without opportunity to support and maintain themselves;
yes, sir, without homes, literally without where to lay their heads.”
There were 3,000,000 of these people, he added, whose very existence was
ignored by the bill; there was no provision for schools; no provision
for even a poorhouse; no provision to teach them the arts of
civilization, no provision for kindling in them hope, for holding up
before them incentives to industry or securing to them its reward. Under
the operations of the bill they were the objects of free plunder; they
were to go forth to be hunted, despoiled and persecuted: outcasts in the
land.
By the bill it was left in the discretion of the provisional governor,
he asserted, to terminate the system set over them. He, as well as the
army of officeholders under him, would be interested in prolonging the
period until the people had _sufficiently_ returned to their obedience.
Before the initiatory steps could be taken, even if the provisional
governor were willing, a majority of the people in each State must of
their own choice signify their loyalty by taking the oath of allegiance.
This made the matter dependent not upon the wish of the loyal, but of
the disloyal persons who constituted the majority in those States.
The plan, he further stated, ignored the principle that the American
people have the right to shape and alter for themselves the rules by
which they are to be governed. If the matter was left in the hands of
the disloyal, the time would be far distant when Union governments would
be instituted in those States. The only wise policy was to establish a
government among the loyal; even though it might be weak and inefficient
at first, it would finally win back those who desired to be reconciled.
The other numerous class, those who deserved to be hanged, were not
provided for in the bill. He was opposed to the provision which would
turn over to insurgents the loyal minorities in those States, and was
not less opposed to prescribing a fixed iron rule by conformity to which
alone out of chaos and anarchy might be made a loyal government.
Further, the bill proceeded upon the assumption that there was no power
in these people, except what was conferred on them by Federal
legislation, to establish State governments. This he denied, and the
authors of the proposed measure, by offering to recognize the
establishments otherwise organized in Arkansas and Louisiana had
conceded as much. In the people, he said, and in them alone, existed the
authority to form an organic law subject to the constitutional provision
that the government should be republican in form. He favored a
recognition of the Louisiana government not because it was formed under
the guidance of General Banks, but because it was made by the loyal
people of that State, was acquiesced in by them, and because under it
they were building up a loyal government.
Governors Hahn and Murphy and the officials chosen in Louisiana and
Arkansas who had been exercising their functions for a year would be
dispossessed by foreigners sent amongst them by the President, who was
empowered to do so by the bill; bickerings, heartburnings and discontent
would follow any attempt to enforce this policy. Sooner or later the
people of those States must be allowed to form governments for
themselves, protected by the parental care of the central
authority.[356]
Fernando Wood declared that he had listened with interest and pleasure
to words of conciliation for the South; little but subjugation,
devastation and annihilation had thus far been heard from the party, the
Administration and the people represented by Mr. Dawes.
The seceding States, Mr. Wood contended, had republican forms of
government which the treason of individuals did not affect. Nor did
individual crimes destroy the rights of the people to regulate their
domestic institutions. The forms of government were the same as those
that existed in the rebellious States six years before. Even admitting
that they had not such governments in existence among them, the bill did
not provide a _republican_ form of government for those States.[357]
He was followed in opposition to the proposed enactment by Mr. LeBlond,
of Ohio, who discussed both the status of the rebellious States and
their form of government. His speech on the former question added
nothing of value to what Representative Pendleton had said at the
preceding session, nor did he enter upon so able an examination of the
clause guaranteeing a republican form of government as did Senator
Carlile on that occasion.
Henry T. Blow, of Missouri, made an appeal for the admission of Arkansas
and Louisiana to prevent destructive military raids into those States as
well as his own. He would support any measure that would restore them
and strengthen their loyal population. However, he did not favor negro
suffrage. His remarks scarcely touched the measure before the
House.[358]
Joseph K. Edgerton, of Indiana, who followed in a lengthy speech in
opposition, said:
The forerunner of this measure of legislation, so far as this House
is concerned, may be found in the territorial bill reported by the
gentleman from Ohio [Mr. Ashley] from the Committee on Territories
in the Thirty-seventh Congress, in March, 1862. It was aptly termed
at the time by the gentleman’s colleague from the Cincinnati
district of Ohio [Mr. Pendleton] “A bill to dissolve the Union and
abolish the Constitution of the United States.” The bill was
summarily, if not indignantly, rejected by the House without a
second reading. But, sir, men and events have since changed, if the
Constitution of the United States has not changed, and the stone of
revolutionary reconstruction then rejected by the master-builders in
this House bids fair to become the head of the corner. Then the
Constitution was not altogether repudiated as the foundation of our
legislation; now revolutionary opinions and plans override it as a
thing of the past. Not many are there in this Congress, and fewer
there will be in the next, I fear, to do reverence to the
Constitution and obey its commands.
The President’s proclamation of December 8, 1863, was then noticed, and
his usurpation of authority denounced; the subject of the Louisiana
government was also entered upon and fully discussed. He next referred
to the introduction early in the preceding session of a resolution by
Henry Winter Davis providing for the appointment of a special committee
authorized to report a bill guaranteeing a republican form of government
to the rebellious States. The fate of that bill, President Lincoln’s
proclamation concerning it, and the protest of Wade and Davis were
successively dwelt upon.
The question between the President and his two Congressional friends,
Wade and Davis, was to Mr. Edgerton’s mind “one between two usurping
powers, the Executive and the Legislative”; but, he continued, “I am
free to say my sympathies were with the legislators and not with the
President. Executive edicts have done more than acts of Congress during
the last four years to sap the foundations and remove the landmarks of
the Constitution.” The majority in Congress, he asserted, by consenting
to recognize the governments of Louisiana and Arkansas, kissed the hand
that smote them.
He opposed a recognition of the Louisiana government because of its
unconstitutional origin; Arkansas, he said, differed from it in no
material respect. After stating the provisions of the bill he gave the
following summary of its effects:
1. To take from the people of the State all power to initiate
proceedings to reorganize their own State government in harmony with
the Constitution of the United States, or even to prescribe the
qualifications of suffrage. The bill ignores the idea that there is
any vital power in the people to restore their State government—not
only taken from them by rebellion but kept from them by Federal
power—....
2. The effect is to exclude from the reorganization the entire white
population of the State who shall have held office or voluntarily
borne arms against the United States, or who shall not take the oath
of July 2, 1862.
3. To confine the right of suffrage and power of reorganization to
enrolled men and Federal soldiers taking the oath; and the law
affords no guaranty that even the enrollment shall embrace a
majority of males over twenty-one years of age. The majority
required as a basis of action is so many of enrolled persons taking
the oath as, with the soldiers, shall constitute a majority of the
persons enrolled; that majority, through defect or fraud in
enrollment, may be not even one tenth of the males of the State over
twenty-one years of age.
4. The effect is the absolute disfranchisement of eleven States and
their continuance in a state of war until they accept “the
abandonment of slavery,” as dictated to them by the United States,
and until by organic law they declare that all persons shall have
“equality of civil rights before the law” of the State; a
well-seeming phrase of broad import; the precise meaning of which I
do not understand. A woman is a person, a negro is a person, an
alien is a person, and the right of suffrage is a civil right. Does
this high-sounding phrase of the bill mean that women, negroes, and
aliens shall have equal right to vote in a regenerated State with
white male citizens? What does “equality of civil rights before the
law for all persons” mean?
* * * * *
In fact and in purpose, then, the bill before the House is one to
abolish slavery in the United States, and to enfranchise and elevate
negroes, and to disfranchise and degrade white men; a bill to change
the social and industrial systems and internal policy of eleven
States; a bill to take from those States their inherent reserved
constitutional right to regulate in their own way their internal
policy, not inconsistent with the Constitution of the United States.
It is a bill to punish treason without trial or conviction; a bill
to confiscate private property without adequate compensation; in
short, a bill to reconstruct States and make State constitutions,
when in truth no States or their constitutions have been destroyed,
or need reconstruction, unless by the voluntary action of their own
people.
* * * * *
If this is a revolutionary Congress, you have a revolutionary power
to pass this bill; but if it be, as I am bound by my oath of office
to believe and assert, a Congress sitting under the Constitution of
the United States, and having no powers outside of or unknown to it,
then you cannot constitutionally pass this bill.
He stated further that the bill “embodies a spirit and purpose toward
the Southern people which, if impolitic and vindictive one year ago,
when the bill first came before the House, and when our enemy was far
stronger and more defiant than now, is still more impolitic and
vindictive at this time, when the minds of all good men are searching
diligently for ways of reconciliation and peace.”
In conclusion he declared: “The Congress of the United States, the
legislative power of the Union, and the Constitution, is asked by this
bill to be the minister and executioner of the great revenge of section
upon section, States North upon States South. For one, sir, I wash my
hands of the deed.”[359]
The passages quoted convey no adequate idea of the able and
comprehensive character of Mr. Edgerton’s speech. It was concerned not
only with the subject under discussion, but extended to a rather
searching examination of Republican professions in 1861 and the
revolutionary practices of a later time. It was marked throughout by
perfect temper, but was not on that account less effective. Any
extension of time, however, even twenty minutes, was denied him by the
majority.
At this point, February 21, Ashley withdrew a motion he had previously
made to recommit the bill, and by authority of his committee withdrew
the measure which was the original text and, in lieu thereof, introduced
another. With this substitution the pending amendments fell.
Representative Wilson desired his substitute to hold its original place.
Messrs. Wilson, Kelley and Eliot then modified their amendments to the
measure hitherto under discussion, and Ashley explained his action in a
brief address.
He referred to the bill which at the preceding session failed to receive
the President’s approval. Since then he had labored earnestly to
conciliate members on his side of the House who had scruples about the
measure as it originally passed, and, if possible, obtain a united vote
in its favor. For that purpose he consented to a compromise in providing
for the recognition of Louisiana, Arkansas and Tennessee. The conditions
were not such as he would prescribe if those States stood alone. But in
order to secure what he thought of paramount importance—universal
suffrage to the liberated black men of the South—he consented to insert
in the bill which he had proposed a few days previously, a conditional
recognition of existing governments in the States of Louisiana and
Arkansas, and the government then being organized in Tennessee.
Disappointed in his efforts to win the coöperation of Representatives
who entertained practically the same opinions which he did in favor of
universal suffrage for the colored man, and in favor of the early
recognition of every Confederate State with a population sufficient to
maintain a government, he now declined to offer his substitute. At the
request and with the concurrence of his committee the bill of the
preceding session was offered with some modifications. These alterations
were to strike out all that the bill contained to which gentlemen had
raised objection, in that it seemingly authorized the execution of State
laws as they existed at the commencement of the rebellion. To make it
perfectly clear what the committee intended, they had inserted a
provision that the governor should execute only such laws as related to
the protection of persons and property; that all laws inconsistent with
the proposed enactment, and all laws recognizing the relation of master
and slave, should not be enforced. The section which authorized the
collection of taxes had been omitted. He preferred not to commit himself
to a recognition of the Louisiana and Arkansas governments, unless he
could secure what he thought of paramount importance in reorganizing the
other States.
“It is very clear to my mind,” he asserted, “that no bill providing for
the reorganization of loyal State governments in the rebel States can
pass this Congress. I am pretty sure that this bill and all the
amendments and substitutes offered will fail to command a majority of
this House.”
The course of debate had shown on the Republican side, he said, so
strong an individuality that no compromise could bring them together on
the great question of reconstruction. Many on his side were capital
leaders in the minority; they were good at pulling down, but not so good
at leading majorities and building up. He admitted their utter inability
to agree on the subject, and had consented to a conditional recognition
of certain State governments because he knew they could be upheld by
military power until the rebellion should be crushed. Republicans were
so nearly unanimous at the preceding session, he said, that he felt the
concessions embodied in his substitute would enable them to agree
without much discussion or without consuming the valuable time of the
House so late in the session. His remarks not only showed disappointment
at the attitude of his party, but clearly revealed the existence of a
schism in its ranks.[360]
Henry Winter Davis then rose to state the case for the House. The bill,
he said, to which amendments were pending was the same as that which at
the preceding session received the assent of both Houses of Congress,
with some modifications to suit the tender susceptibilities of gentlemen
from Massachusetts: “first, the sixth section, declaring rebel officers
not citizens of the United States, has been stricken out; second, the
taxation clause has been stricken out; third, the word ‘government’ has
been inserted before ‘trial and punishment,’ to meet the refined
criticisms of the two gentlemen from Massachusetts who suppose that
penal laws would be in force and operative when the penalties were
forbidden to be enforced; that discriminating laws could survive the
declaration that there should be no discrimination between different
persons in trial or punishment. There has been one section added to meet
the present aspect of public affairs; that section authorizes the
President, instead of pursuing the method prescribed in the bill in
reference to the States where military resistance shall have been
suppressed, in the event of the legislative authority under the
rebellion in any rebel State taking the oath to support the Constitution
of the United States, annulling their confiscation laws and ratifying
the amendment proposed by this Congress to the Constitution of the
United States, before military resistance shall be suppressed in such
State, to recognize them as constituting the legal authority of the
State, and directing him to report those facts to Congress for its
assent and ratification. With these modifications, the bill which is now
the test for amendment is the bill which was adopted by this House at
the last session.”
He need not be at the trouble, he said, to answer the arguments of
gentlemen who at the preceding session voted for the bill, and who, in
the repose of the intervening period, had criticised in detail the
language and, not stopping there, had found in its substance that it
violated the principles of republican government and sanctioned the
enormities of those laws with which slavery had covered and defiled the
statutes of every Southern State.
With increasing severity Mr. Davis proceeded:
That these discoveries should have been made since the vote of last
session is quite as remarkable as that they should have been
overlooked before that vote. But they were neither overlooked before
nor discovered since. The vote was before a pending election. It is
the will of the President which has been discovered since.
It is not at all surprising, Mr. Speaker, that the President, having
failed to sign the bill passed by the whole body of his supporters
by both Houses at the last session of Congress, and having assigned,
under pressure of events, but without the authority of law, reasons,
good or bad, first for refusing to allow the bill to become a law,
and therefore usurping power to execute parts of it as law, while he
discarded other parts which interfered with possible electoral
votes, those arguments should be found satisfactory to some minds
prone to act upon the winking of authority.
The weight of that species of argument I am not able to estimate. It
bids defiance to every species of reply. It is that subtle,
pervading epidemic of the time that penetrates the closest argument
as spirit penetrates matter that diffuses itself with the atmosphere
of authority, relaxing the energy of the strong, bending down the
upright, diverting just men from the path of rectitude, and
substituting the will and favor of power for the will and interest
of the people as the rule of legislative action.
* * * * *
All I desire now to do is to state the case and predict results from
one course or the other. The course of military events seems to
indicate that possibly by the 4th of next July, probably by next
December, organized, armed rebellion will cease to lift its brazen
front in the land. Disasters may intervene; errors or weaknesses may
prolong the conflict; the proverbial chances of war may interpose
their caprices to defer the national triumph; but events now point
to the near approach of the end. But whether sooner or later,
whenever it comes, there is one thing that will assuredly accompany
it. If this bill do not become a law, when Congress again meets, at
our doors, clamorous and dictatorial, will be sixty-five
Representatives from the States now in rebellion, and twenty-two
Senators, _claiming_ admission, and, upon the theory of the
honorable gentleman, _entitled_ to admission beyond the power of
argument to resist it; for peace will have been restored, there will
be no armed power but that of the United States; there will be
quiet, and votes will be polled under the existing laws of the
State, in the gentleman’s view. Are you ready to accept that
consequence? For if they come to the door of the House they will
cross the threshold of the House, and any gentleman who does not
know that, or who is so weak or so wild as to suppose that any
declaratory resolution adopted by both Houses as a condition
precedent can stop that flood, had better put his puny hands across
the flood of the flowing Mississippi and say that it shall not enter
the Gulf of Mexico.
There are things, gentlemen, that are possible at one time and not
possible at another. You can now prevent the rise of the flood, but
when it is up you can not stop it. If gentlemen are in favor of
meeting that state of things, then do as has been already so
distinctly intimated in the course of this debate, vote against this
bill in all its aspects; leave the door wide open; let “our brethren
of the South,” whose bayonets are now pointed at our brothers’
hearts, drop their arms, put on the seemly garb of peace, go through
the forms of an election, and assert the triumph of their beaten
faction under the forms of political authority after the sword has
decided against them. I am no prophet, but that is the history of
next December if this bill be defeated; and I expect it not to
become a law.
But suppose the other course to be pursued; suppose the President
sees fit to do what there is not the least reason to suppose that he
desires to do; suppose that after he has destroyed the armies in the
field he should go further, and do, as I think he ought to do, what
the judgment of this country dictates, treat those who hold power in
the South as rebels and not as governors or legislators; disperse
them from the halls of legislation; expel them from executive
mansions, strip them of the emblems of authority, and set to work to
hunt out the pliant and supple “Union men,” so-called, who have
cringed before the storm, but who will be willing to govern their
fellow-citizens under the protection of United States bayonets;
suppose that the fruitful example of Louisiana shall spread like a
mist over all the rest of the southern country, and that
Representatives like what Louisiana has sent here, with such a
backing of votes as she has given, shall appear here at the doors of
this Hall; whose representatives are they? I do not mean to speak of
the gentlemen now here from Louisiana in their individual character,
but in their political relations to their constituency. Whose
representatives are they? In Louisiana they are the representatives
of the bayonets of General Banks and the will of the President, as
expressed in his secret letter to General Banks. If you admit such
representatives, you must admit, on the same basis and under the
same influences, Representatives from every State from Texas to
Virginia; the common council at Alexandria—which has just sent two
Senators to the other House and has ratified the amendment to the
Constitution abolishing slavery in all the rest of Virginia, where
none of them dare put his portly person—would be entitled to send
ten Representatives here and two Senators to speak for the
indomitable “Old Dominion.” If the rebel Representatives are not
here in December next you will have here servile tools of the
Executive who will embarrass your legislation, humble your Congress,
degrade the name of republican government for two years, and then
the natural majority of the South, rising indignantly against that
humiliating insult, will swamp you here with rebel Representatives
and be your masters. These are their alternatives and there is no
middle ground.
To Mr. Eliot’s objection the Maryland member replied that provisional
governors “are appointed _now without law_, and all we propose is that
they shall be _under the responsibility of law and subject to the
control and confirmation of the Senate_.” Having in mind this condition
and the Executive appointments to judicial places in Louisiana, Mr.
Davis added:
Sir, when I came into Congress ten years ago, this was a Government
of law. I have lived to see it a Government of personal will.
Congress has dwindled from a power to dictate law and the policy of
the Government to a commission to audit accounts and to appropriate
moneys to enable the Executive to execute his will and not ours. I
would stop at the boundaries of law. When I look around for them I
seem to be in a waste; they are as clean gone as the division fences
of Virginia estates from here to the Rapidan.
After explaining the efforts of Mr. Ashley and himself to remove the
objectionable features of the bill as pointed out by the two members
from Massachusetts [Messrs. Dawes and Eliot] he again criticised both
with some severity, and continued:
Sir, my successor may vote as he pleases. But when I leave this Hall
there shall be no vote from the third congressional district of
Maryland that recognizes anything but the body and mass of the
people of any State as entitled to govern them, and to govern the
people that I represent. And they who may wish to substitute one
tenth, or any other fractional minority, for that great power of the
people to govern, may take, and shall take, the odium. Ay! I shall
brand it upon them that in the middle of the nineteenth century, in
the only free Republic that the world knows, where alone the
principles of popular government are the rules of authority, they
have gone to the dark ages for their models, reviving the wretched
examples of the most odious governments that the world has ever
seen, and propose to stain the national triumph by creating a
wretched, low, vulgar, corrupt, and cowardly oligarchy to govern the
freemen of the United States—the national arms to guaranty and
enforce their oppressions. Not by my vote, sir; not by my vote!
If the majority of the people will not recognize the authority of
the Constitution of the United States, what does the gentleman say
who proposes these declaratory resolutions? That they shall come
here without it? No, sir; but I would govern them for a thousand
years first by the supreme authority of the Constitution which they
have defied and will not acknowledge. And govern them how? Not by
the uncontrolled will of this or any other President that ever
lived, George Washington included. I would govern them by the laws
that in the hours of their sanity they enacted, unaltered excepting
so far as the progress of events require that they should be
altered; to the extent that we have proposed to alter them in our
bill, and no further. I leave their own rules for their government,
make the President appoint, under his official and public
responsibility, the officers who are to execute them; and if they do
not like to be governed in that way, let us trust that the prodigal
will come one day to his senses, and humbly kneeling before the
Constitution that he has vainly defied, swear before Almighty God
that he will again be true to it.
That is my remedy for the grievance. That is what we propose....[361]
Though not his last word on the subject of reconstruction, this was the
last great speech of Mr. Davis in Congress on the question of restoring
political power to the rebellious States. His alliance with Stevens, a
somewhat unnatural union, had brought him only disaster. As noticed in
the preceding chapter, he had been defeated for renomination in his
district. It is thought that disappointment hastened somewhat his early
death, which occurred toward the close of the year, December 30, 1865.
Though a touch of pathos may be discerned in his concluding remarks, his
was not the craven spirit that was ready, in the words of Edgerton, to
kiss the hand that smote him.
Representative Mallory, of Kentucky, on his motion to lay the bill and
amendments on the table, called for the yeas and nays. The question
being taken was decided in the affirmative; 91 voting to lay the bill
and amendments on the table; 64 were opposed, and 27 did not vote.[362]
The Democratic members were a unit against the measure, and in a body
voted to lay it on the table.
The defeat of Davis now appeared complete, but the struggle was not to
be abandoned without another effort. On the following day, February 22,
1865, Mr. Wilson from the Committee on the Judiciary reported House Bill
No. 740, to establish the supremacy of the Constitution in the
insurrectionary States, with a substitute which provided that neither
the people nor the legislature of any rebellious State should elect
Representatives or Senators to Congress until the President had
proclaimed that armed hostility to the United States within such State
had ceased; nor until the people of such State had adopted a
constitution not repugnant to the Constitution and laws of the United
States; nor until by law of Congress such State had been declared
entitled to representation in the Congress of the United States.
The authority for this bill he professed to find in the fourth section
of Article I. of the Constitution, which reads as follows:
The Times, Places and Manner of holding elections for Senators and
Representatives shall be prescribed in each State by the Legislature
thereof; but the Congress may, at any time, by law, make or alter
such regulations, except as to the Places of choosing Senators.
Mr. Wilson was somewhat embarrassed in defending his bill. Dawes and
Mallory exposed its weakness, and Representative Kernan, of New York,
believed it would put it in the power of the Executive to say whether
States should be represented in Congress. Fernando Wood observed that
neither by that bill nor any other could either House of Congress be
deprived of the right to pass upon the election, returns and
qualifications of members.[363]
Mr. Ashley at this point moved to amend the substitute offered by the
Committee on the Judiciary by striking out all after the enacting clause
and inserting the reconstruction bill that was tabled the day before.
When a point of order was raised against its introduction the Speaker
said that there was an important amendment; the word “white” having been
inserted before the expression “male citizen,” thus restricting the
class to be enrolled by the United States marshal. Mr. Kelley would
amend it by striking out the word “white.” To this the Ohio member had
no personal objection; indeed, he was abreast of Mr. Kelley in the
matter of the suffrage: the only restriction he would impose being that
of intelligence. Ashley appears, however, to have regarded himself as
but the mouthpiece of his committee by whose authority he had only a few
months before inserted a provision in his reconstruction bill to
recognize the Louisiana and Arkansas governments, though he expressly
declared on a subsequent occasion that he was opposed to such
recognition.
By a vote of 80 to 65 the bill and its amendments was again laid on the
table. Thirty-seven members abstained from voting; fourteen Republicans
voted with the Democrats.[364] This action was taken on the 22d of
February, 1865; the session closed on the 4th of March following without
any further attempt to pass the bill. Before the vote was taken Ashley
stated his sentiments candidly. He wanted a record made on the question.
“I do not expect,” said he, “to pass this bill now. At the next session,
when a new Congress fresh from the people shall have assembled, with the
nation and its Representatives far in advance of the present Congress, I
hope to pass even a better bill. Sir, I know that our loyal people will
never be guilty of the infamy of inviting the blacks to unite with them
in fighting our battles, and after our triumph—a triumph which we never
could have achieved but for their generous coöperation and aid—deny
those loyal blacks political rights while consenting that pardoned but
unrepentant white rebels shall again be clothed with the entire
political power of these States.”[365] The desire to obtain negro
suffrage explains the inconsistent course of Representative Ashley
throughout these debates.
By a singular method of abridging history Mr. Blaine in his _Twenty
Years of Congress_ passes without observation the attempt to revive the
“pocketed” bill, though it was during its discussion that there was for
the first time unmistakably revealed the existence of a schism in the
Republican party.
-----
Footnote 345:
McPherson’s Pol. Hist., p. 557.
Footnote 346:
McPherson’s Pol. Hist., pp. 555–558.
Footnote 347:
Rise and Fall of the Slave Power in America, Vol. III. p. 452.
Footnote 348:
Globe, Part I., 2 Sess. 38th Cong., pp. 12–13.
Footnote 349:
Ibid., p. 234.
Footnote 350:
Pierce, Memoir of Charles Sumner, Vol. IV. p. 205.
Footnote 351:
Ibid., p. 221.
Footnote 352:
Globe, Part I., 2 Sess. 38th Cong., pp. 281–291.
Footnote 353:
An interesting account of the imprisonment of colored seamen in the
ports of South Carolina is given in The Rise and Fall of the Slave
Power in America, Vol. I. pp. 576–586.
Footnote 354:
Globe, Part I., 2 Sess. 38th Cong., pp. 298–301.
Footnote 355:
Ibid.
Footnote 356:
Globe, Part II., 2 Sess. 38th Cong., pp. 934–937.
Footnote 357:
Ibid., pp. 937–939.
Footnote 358:
Appendix to Globe, Part II., 2 Sess. 38th Cong., pp. 73–75.
Footnote 359:
Appendix to Globe, Part II., 2 Sess. 38th Cong., pp. 75–83.
Footnote 360:
Globe, Part II., 2 Sess. 38th Cong., pp. 968–969.
Footnote 361:
Globe, Part II., 2 Sess. 38th Cong., pp. 969–970.
Footnote 362:
Globe, Part II., 2 Sess. 38th Cong., pp. 970–971.
Footnote 363:
Globe, Part II., 2 Sess. 38th Cong., pp. 997–1001.
Footnote 364:
Globe, Part II., 2 Sess. 38th Cong., p. 1002.
Footnote 365:
Ibid.
IX
THE ELECTORAL VOTE OF LOUISIANA
A preceding chapter has noticed the result of the Presidential election
of 1864. It was thought proper, however, to reserve for separate
treatment the various questions presented by the participation in that
contest of Louisiana and Tennessee, two States reorganized under
Executive auspices. On the introduction by Mr. Wilson of a joint
resolution declaring certain named States not entitled to representation
in the Electoral College, the entire subject came before the House soon
after the meeting of Congress in December.
The proposed resolution was read twice and referred to the Committee on
the Judiciary. On the following day, December 20, 1864, it was reported,
ordered to be printed and recommitted. Under the operation of the
previous question it passed the House on January 30 succeeding. Its
preamble, which was favorably considered at the same time, declared that
“the inhabitants and local authorities of the States of Virginia, North
Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi,
Louisiana, Texas, Arkansas, and Tennessee rebelled against the
Government of the United States, and have continued in a state of armed
rebellion for more than three years, and were in a state of armed
rebellion on the 8th of November, 1864.”
The joint resolution provided that these States were not entitled to
representation in the Electoral College for the choice of President and
Vice-President for the term of office beginning March 4, 1865, and that
no electoral votes from them, relative to the choice of said officers
for that term, should be received or counted.[366]
In a modified form the measure subsequently passed the Senate, which
proposed that there be stricken from the preamble the words “and were in
such condition of armed rebellion for more than three years,” and that
there be inserted in lieu thereof, “and were in such condition on the
8th day of November, 1864, that no valid election for electors of
President and Vice-President, according to the Constitution and laws
thereof, was held therein on said day.” In this amendment the House
promptly concurred, February 6, 1865.
In the Senate, February 1, Mr. Trumbull asked consideration of the
measure inasmuch as the electoral votes were to be counted a week later.
When the amendment was under discussion, Senator Ten Eyck, of New
Jersey, moved to strike out the word “Louisiana” in the preamble, and
added that it was a matter of history that the State had reorganized, or
at least attempted to do so, and in the opinion of many, and perhaps
most, of her loyal citizens had reorganized as a State. It was matter of
history that they had elected State officers and a State Legislature;
that they had elected members to a constitutional convention and framed
a new constitution for that State; that the Legislature passed a law
authorizing the choice of electors for President and Vice-President of
the United States in the last Presidential election, and that such
electors had met and cast their votes. “Under these circumstances,” said
Mr. Ten Eyck, “I think there is a striking distinction between the State
of Virginia and the State of Louisiana.” The object of his amendment, he
stated, was to afford opportunity to a loyal people who had suffered all
the horrors of the rebellion, who had got the better of it, and put it
under foot, of coming back and resuming their place in the councils of
the nation. He did not then desire to make any further remarks.[367]
Senator Trumbull then took up the discussion of Ten Eyck’s amendment to
the amendment. The electoral votes, he said, were to be opened and
canvassed a week later, and it was known to all that no rules for action
had ever been adopted in that joint convention. He recalled the fact
that in 1856 there arose a question over the counting of the electoral
vote of Wisconsin. A severe snow storm had prevented the electors from
meeting at their State capital on the day fixed by law, and it was not
until the day following that they were able to cast their votes for
President and Vice-President. The question was not then decided, for
Buchanan and Breckenridge were the successful candidates in either
event, and were so declared.
He believed a similar question was likely to arise when the electoral
votes would be counted on February 8. It was a matter of public
notoriety, he continued, that several of the States included in the
President’s proclamation of 1861, Arkansas, Tennessee and Louisiana, had
cast electoral votes. There was a question as to their authority to do
so in consequence of the insurrection which prevailed there on the 8th
of November, when the election took place, and the House of
Representatives had passed the joint resolution declaring that the votes
of certain named States should not be counted. The motion of the Senator
from New Jersey would have the effect of counting the vote of Louisiana.
“If we decide to receive the vote from Louisiana,” declared Mr.
Trumbull, “it will be a decision by the Congress of the United States
that the State of Louisiana was in such a condition as to vote for
President and Vice-President on the 8th of November last.”
The alteration proposed by the Committee on the Judiciary, said he, was
for the purpose of avoiding any such committal on the subject as the
motion of the Senator from New Jersey brought up. If the preamble “is
adopted and the resolution passed, Congress will not have decided
whether Louisiana is in the Union or out of the Union, whether she is a
State or not a State.” It would be time enough, he believed, to decide
that question when it was presented to the Senate. No statement of
facts, he asserted in reply to Senator Howe, accompanied the joint
resolution from the Committee on the Judiciary; it was a House
resolution, and no report accompanied it from the House Committee.
A large part of Louisiana, he added, was on the 8th of November
preceding in the possession of a hostile force. In a very considerable
portion of the State there was no opportunity to vote for President or
Vice-President, and it might be a very serious question whether, when
half a State or the third of a State was overrun by an enemy, an
election held under such circumstances and under the auspices of Federal
guns would be an election which would authorize the Congress of the
United States, when in joint convention it came to canvass the votes for
President and Vice-President, to count ballots cast under such
circumstances.
In acting upon the resolution he did not mean to commit the Senate one
way or another relative to the organization which had been formed in
Louisiana. A decision to strike out Louisiana would be to decide that
her electoral vote would be received and that on November 8th there was
a State government there. That he did not believe. No evidence, he
asserted, had been submitted to show how many votes were cast.
Pursuant to an act of Congress the President had declared the
inhabitants of Louisiana in insurrection against the United States. That
proclamation had not been recalled. “Sir,” concluded Mr. Trumbull,
“until there shall be some action by Congress recognizing the
organization which has been set up in Louisiana, we ought not in my
judgment to count electoral votes from the State.” Whether Congress
would recognize it, he could not say; that had not yet been done, and,
until it had been, the electoral vote ought not to be counted. He hoped,
therefore, that Ten Eyck’s amendment would not prevail.[368]
Mr. Ten Eyck said it was with great diffidence that he undertook to
propose an amendment to the resolution; but he held the doctrine that
these commonwealths having taken up their lot and part with their sister
States when admitted into the Union were not legally out of it; their
governments had been in abeyance; they had been overrun by the feet of
hostile armies, and many of their citizens, by usurpation and in
violation of their duty to their fellow-men and to their God, had
attempted to carry these States out of the Union.
That being his opinion, whenever these States, by the aid of the General
Government, or by the efforts of their own people, or by the act of both
combined, reëstablished themselves, or set their State governments in
action anew, and had commenced again to revolve in their old orbits, he
should feel it his duty, so far as he was concerned, to extend to them
all the privileges and all the rights to which the loyal people of a
loyal State were entitled at the hands of their sister States, whether
upon the floor of the Senate or anywhere else. It was to exclude
Louisiana from the operation of the resolution that he made his motion.
As to those States manifestly in the condition described in the preamble
there was propriety in passing the resolution.
In reply to an observation of the chairman of the Judiciary Committee,
that the majority desired to avoid a committal on this subject, Mr. Ten
Eyck suggested that it would not, perhaps, be amiss to insist that a
committal should not be had against the interest of the State any more
than in its favor, and if his amendment involved the question whether
Louisiana was in a condition to perform all the functions of a State
government and to appoint State officers and Senators and members of the
national House of Representatives, the same question was involved in the
resolution and it would be determined against her if the joint
resolution passed as it stood; for that would decide that Louisiana was
in a state of rebellion such as to deprive her of all the powers, rights
and privileges of a member of the Union. He was not prepared to go to
that extent.
From various memorials, papers and documents that had come into
possession of the Senate, he continued, and were published by its order,
as well as from information derived from other sources, it appeared that
nearly, if not quite, a year before an election for State officers was
held in Louisiana and a very large number of votes cast, about two
thirds or approximating two thirds of the largest number that had been
cast at any former election for State officers. Trumbull interrupted to
remark that no such statements had been received by the committee. In
those localities which voted, perhaps two thirds of the former vote had
been cast, but not two thirds of that cast in the entire State. Ten Eyck
replied that the vote was 11,414; it was alleged that a large number of
former voters had entered the rebel army and a great many had been
killed. He might be in error concerning the whole vote of the State. All
these elections were free and uninterrupted and without the interference
of any military power whatever. A person on the ground had declared that
“no effort whatever was made on the part of the military authorities to
influence the citizens of the State, either in the selection of
candidates or in the election of officers, and that the direct influence
of the Government of the United States was less in Louisiana than in the
elections probably of any State of the Union; that the officers
representing the Government, both civil and military, were divided, so
far as they entertained or expressed opinions, on the question of
candidates and upon the policy pursued in the organization of the
government.” If any military interference was exerted it was in aid of
the loyal people, and the civil authority was not at all in
subordination to the military.
In view of the invitation that had been held out by the Government to
all the loyal people of those States to come back and to endeavor to
organize themselves anew and, when they had gained sufficient strength,
to present themselves civilly and quietly at the ballot-box to choose
their own State officers and to choose delegates to form a new State
constitution, and when they claim the rights of other States, are they
to be met by the plea that upon certain out-bounds of the State there
may still be heard the tread of rebel feet? It appeared by all the
testimony that the population, the business and the property of
Louisiana were confined to the cities and regions of country immediately
bordering upon the river, and that the residue of the State was very
sparsely settled indeed. That portion not submerged was used for
planting purposes. The wealth and population of the State were confined
within a small space and this contracted area was chiefly under control
of the United States. The Presidential electors were chosen by the State
Legislature, and he did not think that method legal. That is why the
vote cast in the election did not appear in the testimony submitted to
the Committee on the Judiciary.
As to the withdrawal by the President of his proclamation declaring the
inhabitants of Louisiana in a state of insurrection, if that were the
test either the present incumbent or his successor could keep the loyal
people of those States from returning to the Union during the remainder
of his administration, and, if reëlected, for the following term. This
even if every soul within the State were loyal and anxious to
return.[369]
Mr. Howe announced his intention of voting for the amendment of Ten
Eyck, though for reasons very different from those which influenced the
New Jersey Senator. His support would not be controlled by the number of
citizens who participated in the choice of electors. “I am governed,”
said he, “by the single fact that a statute of your own, existing at the
time of that election, declared that the people of that State had the
right to choose electors, and that certain of them did participate in
making that choice. The Senator from Illinois [Trumbull] says but a
small portion of the people of the State participated in that choice.
Your statute said that all might. Does the refusal of a large portion or
a small portion of the people of a State to participate in an election
deprive the minority, if you please, no matter how small, of their right
under your statute?” Besides Louisiana he understood that two other
States had made choice of electors. He would vote for an amendment to
strike them out of the resolution also.[370]
Trumbull argued that a mere refusal to count the electoral vote of
Louisiana did not settle the question against the existing organization.
Wisconsin had a right to vote in 1856, and nobody supposed otherwise;
but many opposed the counting of that vote. The State organization may
be perfect and yet its electoral vote rejected. If the Senate had
refused to count Wisconsin’s vote, it would not therefore have decided
that there was no such State. Ten Eyck promptly indicated the weakness
of this reasoning by pointing out that the preamble of the pending
resolution declared Louisiana in such a condition of rebellion that no
election could be had. Senator Trumbull then put the case of a foreign
enemy having such possession of Louisiana that no election could be held
throughout the State, and asked whether the Senator from New Jersey
would count the electoral vote of Louisiana when not twenty men could
have assembled in the State and voted for President and Vice-President.
If the Senate refused to count her vote under such circumstances, would
it decide that the organization of the State of Louisiana was not to be
recognized, and was repudiated? Whether the organization established in
Louisiana was a valid one was a question which would come before the
Senate when they inquired into the right to seats of those gentlemen who
had presented themselves as Senators.
Replying to an assertion of Senator Howe, who was not in his seat, Mr.
Trumbull said he would like to see the statute which gave Louisiana a
right to vote in the Presidential election of 1864. If any such existed
it would be repealed by the act of Congress which empowered the
President to declare the people of certain commonwealths in a state of
insurrection.
In referring to the objection of Mr. Ten Eyck that the President, if he
desired, could keep a State out during his entire administration,
Senator Trumbull observed that it was only necessary for Congress to
repeal the act upon which the proclamation was based and then the
proclamation itself would fall.
The refusal of a State to vote when she had an opportunity to do so,
said Mr. Trumbull, would be no reason for excluding her electoral vote;
but the people of Louisiana did not have an opportunity unawed by
hostile armies and unrestrained by military authority to vote for
President and Vice-President. This, he said, was not the real point at
issue; the question for the Senate to consider and determine was whether
the Legislature of Louisiana was a lawful assembly, for it was by that
body that electors of President and Vice-President were chosen in the
election of 1864.
Mr. Trumbull believed that on November 8 about three fourths of the area
of Louisiana was in possession of the Confederates. No person could have
voted within that jurisdiction. Eleven or twelve thousand was the
largest vote ever cast under these organizations; while the vote of the
State, when all her legal voters had the privilege of going to the
polls, was more than 60,000.
Mr. Ten Eyck stated that 51,000 was the highest vote ever cast, and that
the average was but 34,000. Trumbull believed the Senate should concur
in the House resolution and that it need not commit itself one way or
the other on the Louisiana organization. The counting of the electoral
vote, which pressed for settlement, should soon be determined.[371]
Mr. Harris thought the question of counting the votes could be disposed
of without committing the Senate or deciding the matter of admitting
Senators, as was done in the case of Wisconsin in 1856. “If we count the
votes of these States,” said he, “the number of votes for Mr. Lincoln
and Mr. Johnson will be so many; if we reject these votes the number of
votes will be so many; and in either case these candidates are elected.”
By this or a similar declaration, the phraseology of which was suggested
by the precedent of 1856, the question could be passed over. He asked
the chairman of the Committee on the Judiciary why Congress had not the
power to declare that New York should not vote. He opposed the preamble
because he did not believe it true, and he denied that the local
authorities in Louisiana, Arkansas and Tennessee were in rebellion on
the 8th of November preceding.
When, on February 2, Senator Harris resumed his remarks he observed that
the question as to the power of Congress to legislate in relation to the
counting of votes for President and Vice-President was not considered by
the committee. Reflection had led him to doubt the competence of
Congress to legislate on the subject. That body could fix the time for
choosing electors and specify the time when they should perform the
functions of their office. That, he contended, was the extent of the
power of Congress over the subject. He could find no authority in the
Constitution, however, which empowered Congress to pass a law, for the
resolution amounted to that, excluding any votes returned to the
Vice-President. Even if Congress had the authority it was inexpedient to
exercise it. Why should such extreme power be exercised when the
necessity did not exist? The result, it was conceded, would be the same
whether Congress counted the votes of Louisiana, Tennessee and Arkansas
or not. The power was not contained in the Constitution. Those States
specified in the preamble did certainly rebel, but that Louisiana,
Arkansas and Tennessee were in that condition on November 8 was at least
open to question.[372]
Senator Doolittle believed that Congress by legislation could provide in
advance for the manner of counting electoral votes; but that, he
insisted, was very different from passing a law which declared certain
votes null and void after they had been cast. That would be retroactive
legislation. He doubted the power of Congress over the subject of
counting the electoral votes, beyond that contained in the Constitution.
“The Congress,” he continued, quoting the fourth clause of section one
of the second article, “may determine the time of choosing the electors,
and the day on which they shall give their votes; which day shall be the
same throughout the United States.” Pursuant to this provision Congress
passed the act of January 23, 1845. It was not for the president of the
Senate to open such as Congress told him to open, but he should “open
all the certificates” which were sent to him, “and the votes shall then
be counted.” Here, said the Senator, arose the grave question whether
the president of the joint convention was made the sole judge as to what
votes should be counted. The question practically came up in 1856, but
it was not then necessary to decide it, and it was waived as not being
essential to the result. On the present occasion, 1865, it was the same,
the result of the election would not be affected by the matter of
counting or not counting the votes of Tennessee and Louisiana; but it
was not necessary for Congress to assert a doctrine which in some future
time might be the very destruction of the Government, namely, “That a
political party in Congress can decide that certain votes of certain
States shall be canceled and others shall be received. It will never do
to set that precedent.” It would be time enough, he said in conclusion,
to meet the question when it came up in the joint convention.[373]
Mr. Hale said that he had foreseen the difficulty and at the preceding
session had introduced a joint resolution directing in advance what
should be done; but the pressure of other business, certainly not more
important, prevented action thereon. If the result of the Presidential
election had depended upon the votes of Louisiana, Tennessee and
Arkansas would the party have submitted against which their votes had
been cast? The rebellion then existing was caused, he believed, by
nothing at all in comparison with such a question.
He denied the assertion of Senator Doolittle that Congress had no power
over the counting of the electoral votes. Suppose, he argued, that,
contrary to the constitutional provision, a member of Congress or any
officer of the Federal Government holding an office of profit or trust
happened to be an elector, would not Congress have power to say that
such vote of Federal officer should not be counted?
The framers of the Constitution, he declared, made the most ample
provision for just such a case. That instrument confers on Congress the
power “to make all laws which shall be necessary and proper for carrying
into execution the foregoing powers, and all other powers vested by this
Constitution in the Government of the United States.” Was not the power
to choose a President one vested in the Government of the United States?
Mr. Hale contended that then, when action by Congress would not affect
the result of the election, was the time to settle the principle, and
the precedent could be pointed to showing the action and sentiment of
Congress at a time when there was no inducement to anything but an
honest and straightforward decision of the case.
Suppose, he went on, that Nevada while in the territorial condition had
grown restless under her provincial state and had sent certificates
signed by her electors, would Congress have no authority to say whether
they should be counted? In Washington’s first election the vote of New
York State was not counted. Now her Senator, Mr. Harris, doubted the
competence of Congress either to exclude, or refuse to count, the votes
of a State.[374]
Mr. Doolittle objected to being quoted quite so strongly as to say that
Congress had no power over this subject. Congress had power over the
subject, but that power was limited. When the Constitution says that the
States shall do certain things, such as directing the appointment of
electors, that is a limitation on the power of Congress over the matter.
What he maintained was that after the ballots had been cast there was no
power in Congress as a legislative body to declare certain votes valid
or invalid. The tribunal to which the question was referred was the
president of the Senate presiding over the joint convention of both
Houses. The power in the first instance was with that officer to count
or not to count the votes. He was to decide whether they were from
States or from Territories.[375]
Senator Trumbull maintained that so far from being empowered to decide
disputes, the president of the joint convention was not authorized to
even count the votes. In the practice of the Government the
Vice-President had never since the days of Washington counted the votes.
The Constitution says that he shall “open all the certificates and the
votes shall then be counted.” It does not state by whom, but it does
state that Congress has power to pass all laws necessary to carry the
instrument into effect. Congress, he said, had exercised such power from
the beginning.
There was no legal difference, he asserted, between South Carolina and
Louisiana. An individual trading in the latter State, except under a
particular license, could be taken up and tried as a felon, and yet “we
are told that we cannot determine by act of Congress that they cannot
elect a President for us!”