Mr. Trumbull contended that if a question arose upon the counting of the

vote of any State, the joint convention could not decide upon it. The

bodies would have to separate and, by passing a concurrent resolution,

each act independently. There was no popular election, he said, in the

State of Louisiana, but a body assuming to be its Legislature had

appointed electors of President and Vice-President. He did not know

whether the new constitution of Louisiana authorized that method.

The purpose of the Senate, he continued, in amending the joint

resolution of the House was to avoid declaring that the people of

Louisiana were on the 8th of November in a state of armed insurrection.

The preamble, even as it was amended, did not wholly satisfy him; he

believed that he would be better pleased if it was altogether omitted.

He was informed that Tennessee had sent a vote as well as Louisiana. The

object of the committee was to settle the question before the meeting of

the joint convention.[376]

Senator Collamer thought that any law honestly intended to carry into

effect the provisions of the Constitution could not be objected to. It

could if it opposed or was inconsistent with that instrument. There had

been legislation on the subject and additional action by Congress might

be necessary. For the resolution he offered the following substitute:

That the people of no State, the inhabitants whereof have been

declared in a state of insurrection by virtue of the fifth section

of the act entitled “An act further to provide for the collection of

duties on imports, and for other purposes,” approved July 13, 1861,

shall be regarded as empowered to elect electors of President and

Vice-President of the United States until said condition of

insurrection shall cease and be so declared by virtue of a law of

the United States.[377]

By Mr. Howard the question was regarded as of very great importance not

only as a precedent for the future, but “as indicating the opinion of

Congress on the subject, to use a familiar term, of ‘reconstruction,’ or

rather the rights of the States in rebellion.” He believed it clear that

the Vice-President was to open the certificates and that the duty of

counting devolved upon the two Houses thus assembled. The act of 1792

seemed so to construe the Constitution.

“The power of counting the votes,” he asserted, “and of rejecting votes

which are void for fraud or illegality, is, under the Constitution, in

the joint convention thus assembled.” There was no doubt about it, he

declared, because the Houses convened for a great and protective

purpose; they were exercising the tutelary authority of the people, in

protecting the nation from the imposition of false and fraudulent

ballots and certificates. The inhabitants of the States mentioned in the

proclamation of the President were public enemies; therefore they had no

political rights under the United States.

“I look upon this measure as necessary,” continued Mr. Howard, “as one

form in which the sense of Congress ought to be expressed against any

hasty attempt to readmit these rebellious States into the Union.” For

one, he would require the loyalty and friendliness of a majority of the

people of the rebellious States to be proved before readmitting any of

them. “The theory of our Government,” he went on, “is different from

that of almost every other government on earth. It is that the will of

the majority shall govern; in common phrase, the majority of the people,

but practically the majority of the voting population.”

In conclusion he declared that it was “the bounden duty of Congress, in

every case, to keep out of the Union every one of these eleven seceded

States until, in pursuance of our laws, passed or to be passed, it has

become perfectly evident to us that there is in such a State a clear,

absolute majority of its voting population friendly to the Government of

the United States, and willing to proceed in the discharge of their

functions as a State; and, until that is done, you may be perfectly

sure, so long as I hold a seat in this body, my vote will be given

against any such proposal. I never will consent to admit into this Union

a State a majority of whose people are hostile and unfriendly to the

Government of my country. I prefer to hold them in tutelage (for that is

really the word) one year, five years, ten years, even twenty years,

rather than run the risk of a repetition of this rebellion, which has

cost us so much blood and treasure.”[378]

Ten Eyck, considering Louisiana as the strongest case, mentioned it in

preference to Arkansas or Tennessee, and, from a paper furnished by a

gentleman who was familiar with the situation there, was able to state

that “eleven thousand four hundred and fourteen votes were polled at

this election. The average vote for ten years prior to the rebellion in

these parishes was fifteen to sixteen thousand.” The same parishes cast

their highest vote, 21,000, in 1860. He expressed a wish to save

Tennessee also from the effect of the resolution, and declared that he

did not see how the Vice-President-elect, an alien, could preside over

the Senate. Further, a vote in favor of the resolution prejudged the

case of the Senators and the legality of the Legislature which sent

them.[379]

Senator Pomeroy did not suppose that States unrepresented in either

House could be represented in the Electoral College. He criticised the

correctness of the preamble so far as it related to Arkansas. The rebel

governor as well as the rebel legislature, he said, was driven out long

ago.

“Arkansas,” he continued, “has not voted at all in the Presidential

election.... Under the instructions and impressions that the members

from Arkansas received here last session, they distinctly understood

that States not represented in either branch of Congress would have no

right to vote at the Presidential election. They returned to Arkansas

and so reported, and they never had any election; there are no votes

here from that State. They have been in suspense awaiting the action of

Congress.” The resolution itself did not, of course, affect Arkansas,

for there were no votes from that State to be counted.[380]

Mr. Cowan, probably adopting a hint dropped by Senator Ten Eyck, noticed

the fact that the proclamation of January 1, 1863, exempted from its

operations thirteen named parishes of Louisiana because no rebellion

existed in them. The validity of that decree had been recognized, while

the proclamation of December 8 following invited the people of Louisiana

and other States to resume their rights. The question was whether the

arrangements of the President were to be executed in good faith.

It was the duty of the Executive, he continued, “to put down this

rebellion, to relieve the people from its oppression, and to restore

them precisely to where they were when the rebellion found them. If that

is done, in ten days after his proclamation, _eo instanti_, the people

resume their rights and functions; and in this case I understand they

are not only in possession of the right, but are actually in the

enjoyment of it, having a regularly organized government with all the

machinery necessary and proper to a government.” He believed that men

and money were furnished the President to sustain State governments and

make them supreme within their own limits.

Concluding this portion of his remarks he said: “Mr. President, this

involves a direct conflict between the Legislative and Executive bodies

of this Government, and at this time I am of opinion that we cannot

afford to enter into that conflict.”[381]

Senator Powell, of Kentucky, said that when it was asserted that General

Banks did not interfere in the Louisiana election the statement was not

true, for there could be no greater interference in the elections of a

State than to alter the qualifications of voters. He declared himself

“opposed to admitting on this floor persons who are elected under the

bayonet influence in any way whatever. I very well know that there was

no free expression of the people of Louisiana in these elections. I know

that they but obeyed the behests of the military, whatever commanders

may say about it.... But for its tragical results upon republican

liberty it [the election] would be the greatest of farces.”

The Kentucky member believed that the rebellious States were still in

the Union, and when a majority of the people in any of them returned to

loyalty, when their governments were organized, their Senators and

Representatives should be received.[382]

Cowan, entering again into the discussion, said: “We are bound by the

Constitution to preserve the Union and to preserve the rights of the

people under the Union; not merely the rights of a majority, but the

rights of the people, of all the people, and of any number of the people

however small. What are we to do? A minority of the people come forward

and say, ‘If you aid us for a while we can preserve this State and keep

her in the Union.’ ‘But no,’ according to the doctrine advanced here,

‘there must be a majority of you before we can recognize you as in the

Union.’... That will be very poor encouragement for the loyal men of the

rebel States to try and bring back their people to reason.” The

Pennsylvania Senator was one of the few who adhered to the opinion that

the masses of men at the South were not disloyal; that it was a leaders’

rebellion.[383]

Sherman, of Ohio, described the scene in the joint convention of 1856

when Humphrey Marshall wanted to speak and Mr. Mason, president of the

Senate, refused to recognize him. Speaker Banks, however, did recognize

him; upon this, Mason and others left the convention, and confusion

ensued; that, Mr. Sherman believed, was a reason why the resolution

should be disposed of.[384]

Mr. Wade said: “About a year ago Congress, anticipating that such

questions as this might arise, in my judgment very wisely framed a law

and passed it through both branches with the hope of settling this

matter in advance. That law was made upon great deliberation in both

bodies of Congress: it received a very large vote in each House. It was

very proper in my judgment that Congress should fix the matter then,

because everybody could anticipate that a question of the most serious

danger to the Republic might arise in the then approaching Presidential

election, which might endanger the stability of our Union, and which

might under certain circumstances precipitate these Northern States into

a civil war. Apprehending that such a question might arise, Congress

wisely, in my judgment, provided against it; but the President did not

agree with them, and he vetoed their bill, leaving the question open

with all its dangers, which, thank God, have not arisen.”

The President, added Mr. Wade, chose to pocket the bill, “and, as I

suppose, he did it in defence of the proclamation which he had put

forth, declaring that whenever a tenth part of the people of a State

would come back, he would recognize them as the State and as part and

parcel of this Government—a proposition which, with all my respect for

the Chief Magistrate, I am bound to say is the most absurd and

impracticable that ever haunted the imagination of a statesman.... And I

must say of that proclamation of the President that it was the most

contentious, the most anarchical, the most dangerous proposition that

was ever put forth for the government of a free people.

“... I had a conversation with the now Vice-President-elect of the

United States on that subject, and with other gentlemen on the Union

side in the Southern States, and I do not know of one of them who was

not filled with the deepest apprehension that if this principle should

prevail they would be annihilated by the nine tenths.”[385]

As to permitting citizens of Louisiana who were serving in the army and

navy to vote in the election of February 22, 1864, Mr. Doolittle

observed: “We have done the same thing in Wisconsin, in Ohio, in

Pennsylvania, in New York, all growing out of exigencies which have

occurred since this rebellion began, passing laws, authorizing men,

although in the Army of the United States, still to take part in the

elections, providing that they should not be deprived of their rights of

citizenship because they had enlisted in the Army to bear all the

sacrifices which are necessary to defend their country in this struggle.

And, sir, I maintain that there was nothing wrong in this.”[386] Even if

it were wrong, only 808 soldiers, he asserted, participated in the

election. A separate registry of this vote had been kept by General

Banks. So far, therefore, from being a military usurpation it was an

attempt of the President to lay down the military power. This he was

endeavoring in good faith to do.

After a somewhat excited defence of the Administration by Senator

Doolittle, and severe attacks on both President Lincoln and General

Banks by Mr. Powell and others, Ten Eyck’s motion to strike out

Louisiana from the joint resolution was defeated, February 3, 1865, by a

vote of 22 to 16.[387] Lane’s motion immediately after to strike out the

preamble, which would leave only an unmeaning resolution, was lost by a

vote of 30 nays to 12 yeas.[388]

Senator Harris proposed to amend Mr. Collamer’s substitute by resolving,

“That it is inexpedient to determine the question as to the validity of

the election of electors in the said States of Tennessee and Louisiana,

and that in counting the votes for President and Vice-President the

result be declared as it would stand if the votes of the said States

were counted, and also as it would stand if the votes of the said States

were excluded, such result being the same in either case.” By nearly the

same majority this proposition also was voted down without much

discussion.[389]

Reverdy Johnson, who favored the House resolution as amended by the

Committee on the Judiciary, did not think the rebellious States were out

of the Union, and asserted that there was no power in any branch of

Government to declare war against a State. Referring to the Whiskey

Insurrection in Washington’s administration, he said that Congress

passed no act declaring it at an end. The President declared it. It

ended itself. The insurrectionists laid down their arms, and expressed

willingness to yield obedience to the United States; that ended the

insurrection and disbanded the Federal forces, “and that happening, the

State of Pennsylvania, every part of it, stood exactly in the relation,

for all purposes, in which the State and every part of it stood before

the insurrection was commenced.”[390]

Mr. Collamer said that the real point in Senator Johnson’s argument was

whether Congress had anything to do in the reorganization or

reëstablishment of those States. Mr. Johnson, continued the Senator from

Vermont, seemed to think not. On resuming his speech, February 4, 1865,

he inquired: “When will, and when ought, Congress to admit these States

as being in their normal condition? When they see that they furnish

evidence of it. It is not enough that they stop their hostility and are

repentant. They should present fruits meet for repentance. They should

furnish to us by their actions some evidence that the condition of

loyalty and obedience is their true condition again, and Congress must

pass upon it; otherwise we have no securities. It is not enough that

they lay down their arms. Our courts should be established, our taxes

should be gathered, our duties should be collected in those States; and

before they come here to perform their duties or privileges again as

members of this Union, they should place themselves in an attitude

showing to us that they have truly taken that position, and we should

pass upon it; and I insist that the President, making peace with them,

if you please, by surceasing military operations, does not alter their

status until Congress passes upon it.... I believe that when

reëstablishing the condition of peace with that people, Congress,

representing the United States, has power, in ending this war as any

other war, to get some security for the future.”

The guaranty clause, Mr. Collamer asserted, implied that States were to

be kept in the Union; it was inserted for the security of the minority

in a State, though there might be but one man there to redeem Sodom. No

one State could discharge the United States from a performance of that

obligation. To keep it Congress, if it was essential to maintaining a

republican form of government, could abolish slavery if that institution

stood in the way of performing the guaranty. Before restoring the

States, he added in conclusion, the President would need the assistance

of Congress, else how could he get rid of the confiscation act.[391]

Collamer’s substitute, which shared the fate of the amendment offered by

Ten Eyck, could be construed only by an examination of the President’s

proclamation to ascertain what States were in insurrection.

To the preamble, which stated that four years earlier certain designated

States had rebelled, and on the 8th of November preceding were in such

condition of rebellion that no valid election for the choice of electors

of President and Vice-President could be held there, Senator Pomeroy

objected that the rebel governor of Arkansas had been killed, and the

entire disloyal government destroyed. When the election was held the

real local authorities in that State were Union men. It would not be

true, as the preamble declared, that these authorities were in rebellion

on November 8. The terms of the disloyal officials in Arkansas had

expired by limitation; the chief men in that government were not alive

to exert any influence if they were disposed to do so. It was not true

to say that they made war on the United States on the 8th of November,

1864, or that they were then in condition to do so. Since the rebellion

began they never had but one election.

Pomeroy’s amendment to substitute for “state of rebellion” the word

“condition” was carried by a vote of 26 to 13. The preamble, as thus

perfected, declared that certain States had rebelled four years before,

and on November 8 were in such “condition” that no valid election was

held.[392]

Mr. Lane believed that for the protection of Union men in those States a

loyal government was indispensable, and that it did more to demoralize

the insurgents and to close out the rebellion than any other act that

could be accomplished. It would be worth more than all the victories

that could be gained in the field.[393]

Senator Howe in closing the debate observed that four days had been

spent in discussing not the passage of the joint resolution, but the

reason to be assigned in its preamble for excluding the vote of certain

States. It belonged to the legislatures of those commonwealths, he

maintained, to declare whether valid elections had been held there. He

distrusted that sort of legislation, and in conclusion said: “If you

will take hold of the question of the political relations of these

communities, and if you will tell what is the truth, and has been the

truth since 1861, that there are no State organizations there, no State

governments, I am with you. When you establish that, you know what they

may and what they may not do.”[394]

By a vote of 29 to 10 the joint resolution was passed on February 4. In

the record the names of Cowan, Doolittle, Harris, Howe, Lane of Kansas,

Nesmith, Saulsbury, Ten Eyck, Van Winkle and Willey appear in

opposition.[395]

For the purpose of canvassing the electoral votes, both Houses assembled

in joint convention four days later, February 8, 1865. The

Vice-President in discharge of his duty proceeded to open and hand to

the tellers the votes of the several States, beginning with Maine. No

one dissenting it was agreed on a suggestion by Senator Wade to dispense

with the reading of everything in the certificate except the result of

the vote.

When all the votes had been recorded, Cowan said: “Mr. President, I

inquire whether there are any further returns to be counted.” The

Vice-President replied in the negative. To his former question Mr. Cowan

then added, “And if there be, I would inquire why they are not submitted

to this body in joint convention, which is alone capable of determining

whether they should be counted or not.” The Vice-President acknowledged

that he had in his possession returns from the States of Louisiana and

Tennessee, but in obedience to the law of the land “the Chair holds it

to be his duty not to present them to the convention.” The Pennsylvania

Senator thereupon inquired whether the joint resolution had been signed

by the President, and was informed that while the official communication

of its approval had not been received by either House, the Chair had

been apprised that the resolution had received the Executive approval.

Cowan then suggested that, as a motion was not in order, the votes of

Louisiana and Tennessee be counted, and that the convention determine

the fact. Representative Cox immediately recommended the reading of the

joint rule under which both Houses were then acting. On being directed

by the Vice-President the secretary complied with this suggestion.

Thaddeus Stevens did not think any question had arisen which required

the two Houses to separate, for that, according to the language of the

joint resolution, could only occur upon the reading of those returns

which had been opened by the president of the convention.

Mr. Cowan did what he could to bring the question before the two Houses,

and failing, withdrew it. The result, after some further effort to call

up the returns from Louisiana and Tennessee, was then announced. The

tellers reported that for President of the United States Abraham Lincoln

had received 212, and George B. McClellan 21 votes; that for

Vice-President Andrew Johnson had received 212, and George H. Pendleton

21 votes.[396]

On February 10 the president _pro tempore_ laid before the Senate the

following communication from Mr. Lincoln:

_To the honorable the Senate and House of Representatives_:

The joint resolution entitled “Joint resolution declaring certain

States not entitled to representation in the Electoral College” has

been signed by the Executive, in deference to the view of Congress

implied in its passage and presentation to him. In his own view,

however, the two Houses of Congress, convened under the twelfth

article of the Constitution, have complete power to exclude from

counting all electoral votes deemed by them to be illegal; and it is

not competent for the Executive to defeat or obstruct that power by

a veto, as would be the case if his action were at all essential in

the matter. He disclaims all right of the Executive to interfere in

any way in the matter of canvassing or counting electoral votes, and

he also disclaims that, by signing said resolution, he has expressed

any opinion on the recitals of the preamble, or any judgment of his

own upon the subject of the resolution.[397]

Except for a brief speech by Reverdy Johnson this message was received

in silence by the Senate. Mr. Johnson commented upon the extraordinary

course of the President, whose duty, he said, was clearly to approve or

to disapprove, not virtually to read a lecture to the Senate as he had

done. The Maryland member did not doubt that the motives of the

President were perfectly correct and patriotic, but it was not the first

time, he asserted, that that had been done. The bill for the

reconstruction of the seceded States passed both Houses by an

overwhelming majority; but it was defeated by the President’s failure to

approve, and the adjournment of Congress before ten days elapsed. In his

manifesto or proclamation he approved portions and disapproved

others.[398]

Short as this paper was, however, it was entirely characteristic of the

President. This little lesson in constitutional law is only another

proof that Mr. Lincoln possessed in an eminent degree the faculty of

seeing clearly through the most intricate question. His disposal of this

difficulty as well as his reflections on Congress remind one of the

facility with which he straightened out for General Butler the liquor

problem at Norfolk. The succeeding chapter will describe another phase

of the controversy between the political departments of the Government.

-----

Footnote 366:

Globe, Part I., 2 Sess. 38th Cong., p. 505.

Footnote 367:

Globe, Part I., 2 Sess. 38th Cong., p. 533.

Footnote 368:

Globe, Part I., 2 Sess. 38th Cong., pp. 534–535.

Footnote 369:

Globe, Part I., 2 Sess. 38th Cong., pp. 535–536.

Footnote 370:

Ibid., p. 536.

Footnote 371:

Globe, Part I., 2 Sess. 38th Cong., pp. 535–537.

Footnote 372:

Globe, Part I., 2 Sess. 38th Cong., pp. 537, 548.

Footnote 373:

Globe, Part I., 2 Sess. 38th Cong., pp. 548–549.

Footnote 374:

Globe, Part I., 2 Sess. 38th Cong., pp. 549–550.

Footnote 375:

Globe, Part I., 2 Sess. 38th Cong., p. 550.

Footnote 376:

Globe, Part I., 2 Sess. 38th Cong., pp. 550–551.

Footnote 377:

Ibid., pp. 551–552.

Footnote 378:

Globe, Part I., 2 Sess. 38th Cong., pp. 553–554.

Footnote 379:

Globe, Part I., 2 Sess. 38th Cong., pp. 554–555.

Footnote 380:

Ibid., pp. 555–556.

Footnote 381:

Globe, Part I., 2 Sess. 38th Cong., p. 556.

Footnote 382:

Globe, Part I., 2 Sess. 38th Cong., pp. 557–558.

Footnote 383:

Ibid., p. 558.

Footnote 384:

Ibid.

Footnote 385:

Globe, Part I., 2 Sess. 38th Cong., pp. 576–582.

Footnote 386:

Globe, Part I., 2 Sess. 38th Cong., p. 575.

Footnote 387:

Ibid., pp. 576–582.

Footnote 388:

Ibid., p. 582.

Footnote 389:

Ibid., p. 583.

Footnote 390:

Globe, Part I., 2 Sess. 38th Cong., p. 585.

Footnote 391:

Globe, Part I., 2 Sess. 38th Cong., p. 591.

Footnote 392:

Globe, Part I., 2 Sess. 38th Cong., p. 593.

Footnote 393:

Ibid., p. 594.

Footnote 394:

Ibid., pp. 594–595.

Footnote 395:

Globe, Part I., 2 Sess. 38th Cong., p. 595.

Footnote 396:

The subject of the counting of the electoral votes will be found in

the Congressional Globe, Part I., 2 Sess. 38th Cong., pp. 668–669.

Footnote 397:

Globe, Part I., 2 Sess. 38th Cong., p. 711.

Footnote 398:

Globe, Part I., 2 Sess. 38th Cong., p. 711.

X

SENATE DEBATE ON LOUISIANA

At the opening of its second session, December 5, 1864, the Speaker of

the Thirty-eighth Congress laid before the House the credentials of W.

D. Mann, T. M. Wells, Robert W. Taliaferro, A. P. Field and M. F.

Bonzano, who claimed seats as Representatives from the State of

Louisiana. A petition, signed by numerous citizens of that commonwealth,

protesting against the admission of these claimants, was referred at the

same time on motion of Henry Winter Davis to the Committee of Elections

in connection with their credentials, which had already received the

same direction. On the 13th this remonstrance was ordered to be printed.

Mr. Dawes on February 11 following reported that “M. F. Bonzano is

entitled to a seat in this House as a Representative from the First

Congressional District of Louisiana.” Six days later he presented a

report and resolutions from his committee to the effect that Messrs.

Field and Mann from the Second and Third Districts, respectively, were

also entitled to seats. These reports with the accompanying resolutions

were laid on the table and ordered to be printed.

No further action was taken on the question of their admission, but on

March 3, 1865, Chairman Dawes by unanimous consent reported from the

Committee of Elections a resolution that there be paid to each of the

Louisiana claimants for compensation, expenses and mileage the sum of

$2,000 and a like amount to T. M. Jacks, J. M. Johnson and A. A. C.

Rogers, claimants from Arkansas.

The House, however, was not nearly so unanimous as its committee. Mr.

Washburne remarked that Congress, by allowing at the last session the

sum of $1,500 to one gentleman who claimed a seat, had fixed a sort of

rule in such cases. That amount he would, probably, not object to paying

to the present applicants; but if large payments, such as the

compensation proposed by the resolution, were made to men coming to the

Capitol it was feared they might not soon stop.

Representative Johnson, of Pennsylvania, believed that regardless of

their right to seats they should be compensated because they had been

encouraged to come; they appeared at the Capitol, he asserted, with an

honest expectation of getting seats, and in an honest effort to restore

popular government to their States.

Mr. Dawes declared that they came not as adventurers but under what they

supposed was the policy of the General Government; hence the favorable

recommendation of the committee. When he demanded the previous question,

Representative Brandegee moved to lay the resolution on the table.

Thaddeus Stevens asked to strike out the words “claimants for seats.” To

this the Massachusetts member offered no objection. “I do not want to

recognize the idea,” added Stevens, “that anybody on earth thinks that

these men are entitled to seats.”[399] This request, however, was

denied, and the resolution was then adopted.

It was during their three months’ sojourn in Washington that one of the

claimants, A. P. Field, committed an assault upon Representative William

D. Kelley, of Pennsylvania, whom he regarded as the chief obstacle to

their admission. This occurrence, which took place on February 20 at the

Willard Hotel, was due, no doubt, to the artificial excitement of the

Louisiana claimant, but was without influence upon the action of the

House.[400]

The General Assembly of Louisiana, as previously related, had chosen

Charles Smith and R. King Cutler as United States Senators. With the

Representatives-elect these gentlemen also appeared in Washington as

claimants for seats. On December 7, two days after Congress assembled,

the president _pro tempore_ presented certain proceedings of the

Louisiana Legislature declaratory of the election of Smith and Cutler.

The papers, it was announced, would lie on the table unless otherwise

ordered. Just as Henry Winter Davis had done in the House, Senator Wade

offered a memorial from Louisiana citizens remonstrating against their

admission, and also against the reception of any electoral vote from

that State. On his motion it was agreed that all documents pertaining to

the subject be printed. On the following day, December 8, the

credentials as well as the remonstrance were referred to the Committee

on the Judiciary.

Senator Trumbull on February 17 succeeding made a report from his

committee, and offered a joint resolution relative to the credentials of

Smith and Cutler. At the request of Charles Sumner the resolution was

read at length and was as follows:

That the United States do hereby recognize the government of the

State of Louisiana, inaugurated under and by the convention which

assembled on the 6th day of April, A. D., 1864, at the city of New

Orleans, as the legitimate government of the said State, and

entitled to the guarantees and all other rights of a State

government under the Constitution of the United States.[401]

This resolution was limited to Louisiana because the facts, while in

many respects similar, were not identical with those in the case of

Arkansas. Besides, when the subject first came up in committee the

Arkansas case had not been presented, though it arose before Louisiana

had been disposed of. Trumbull believed it the intention of the

committee to act immediately upon Arkansas when the case of Louisiana

had been considered.[402]

Sumner moved, February 23, to strike out all of the joint resolution

except the enacting clause, and to substitute the following:

That neither the people nor the Legislature of any State, the people

of which were declared to be in insurrection against the United

States by the proclamation of the President, dated August 16, 1861,

shall hereafter elect Representatives or Senators to the Congress of

the United States until the President, by proclamation, shall have

declared that armed hostility to the Government of the United States

within such State has ceased; nor until the people of such State

shall have adopted a constitution of government not repugnant to the

Constitution and laws of the United States; nor until, by a law of

Congress, such State shall have been declared to be entitled to

representation in the Congress of the United States of America.[403]

To this amendment Senator Trumbull objected that it would put it in the

power of the President, by refusing to issue his proclamation, to keep a

State out forever. Sumner’s substitute was promptly defeated by a vote

of 29 to 8.[404]

Of the members of the committee Powell alone opposed the resolution

offered by Mr. Trumbull. The chief object in recognizing the government

of Louisiana at that time, said the Kentucky Senator, was to allow that

State to vote for the proposed amendment of the Constitution; to do that

effectually those favorable to the resolution desired first to admit her

Senators and Representatives; their admission would be the immediate

effect of its passage.

A just conclusion on that subject could be reached only by information

concerning the action of the President, of the military, and of the

people of Louisiana in connection with the election. He opposed the

loyal government because it was not formed by the people of that State;

however, he did not want to be classed with those who thought Louisiana

out of the Union. He believed that something approximating a majority of

her people should indicate a willingness to return to the Union, and

should participate in the movement for reorganization. The formation of

the existing government, he asserted, was controlled and influenced by

persons who were not citizens of Louisiana, and, he added, “It is a

government formed really and virtually by the military power of the

United States, using as instruments delegates who were elected under and

by force of the bayonet.”

Before Senators could vote for the resolution, he continued, they must

maintain the doctrine announced in the President’s proclamation of

December 8, 1863, when he proposed that one tenth of the loyal voters in

a State who would comply with the conditions therein prescribed, could

form a State government; they must further maintain that the President,

of his own volition, had power by decretal order to alter the

constitution of a State; that the President had power to prescribe the

qualifications both of voters and candidates for office in the States;

finally they must believe that not only did the President possess these

powers, but that Major-General Banks, in virtue of his office, possessed

them in Louisiana.

Mr. Powell proposed to show that not only did Louisiana people not act

of their own volition, but that “they were coerced to do what they did.”

The constitution of that State, he asserted, was not made by the free

suffrage of the people.

The creation of a State government is a purely civil act; the people

must act without restraint. He had never heard any Senator say that the

President could legitimately exercise the power assumed in his

proclamation of December 8, 1863. Mr. Powell objected to the oath which

was to be taken as a condition precedent to becoming a qualified elector

in one of the revolted States, especially to that portion which promised

support of all future proclamations of the President on the question of

slavery. “Why, sir,” he exclaimed, “the President may proclaim that the

negro shall be the master and the white man the slave; that the negro

shall be the voter and the white man deprived of the right of suffrage;

and yet this oath requires the man taking it to swear in advance that he

would support even such a measure as that....

“At the very threshold, then,” he continued, “you repudiate the great

principle of republican government that majorities shall rule. Here you

propose to say not that majorities, but that less than one tenth shall

rule.” It was intimated by the President that when they made a

constitution it must not recognize African slavery. General Banks,

carrying out the suggestion of the President, as well as what had been

distinctly stated to General Steele in relation to Arkansas, took it

upon himself to alter the constitution of Louisiana in that respect.

Whence does the President, it was asked, derive the power to prescribe

qualifications for either electors or candidates? The proclamation, the

Kentucky Senator asserted, was the basis of the whole proceeding, and

those who voted for the resolution endorsed the proclamation.

Mr. Powell then reviewed the acts and read the proclamation of General

Banks, whose conduct he denounced for presuming to declare certain parts

of the Louisiana constitution no longer applicable to any class of

persons in that State, and, therefore, inoperative and void.

He further objected that Banks had no authority to call the convention,

for the constitution of Louisiana could be lawfully amended in only the

mode pointed out by itself. The President’s proclamation, he added,

would allow only those to vote who were qualified electors under the

fundamental law of the State; those in the army and navy were not, but

General Banks in his ukase of February 13, 1864, allowed them to

participate in the election.

He also invited attention to the action of the Department Commander in

designating provost marshals to take care that the polls were properly

opened, in the absence of the sheriffs, and that suitable persons were

appointed judges of election and so forth. Of the 11,414 votes he

asserted that 808 were cast by soldiers who under the President’s

proclamation were not legal voters. The fact, added Mr. Powell, that

General Banks after the inauguration of Hahn as governor continued to

issue proclamations shows that the civil was controlled by the military

authority.

Passing on to a discussion of the statement of Banks before the

Committee on the Judiciary that the military did not interfere in the

election of February 22, Senator Powell quoted the following passages

from a proclamation of the Department Commander:

Those who have exercised or are entitled to the rights of citizens

of the United States will be required to participate in the measures

necessary for the reëstablishment of civil government.... It is

therefore a solemn duty resting upon all persons to assist in the

earliest possible restoration of civil government. Let them

participate in the measures suggested for this purpose. Opinion is

free and candidates are numerous. Open hostility cannot be

permitted. Indifference will be treated as a crime, and faction as

treason.

“Talk to me,” exclaimed Mr. Powell, “of freedom of election under such

military orders! Why, sir, there was but one free man, in my opinion, in

all Louisiana at that time, and that was Major-General Banks; and I do

not know that he was free, for he was serving his master at the White

House.” The fundamental law there was martial law, which is but the will

of the commander-in-chief, and under that law he could have beheaded

them if they did not vote.

From beginning to end, he continued, the coercive finger of the military

was engaged in the establishment of that government. Under the various

proclamations even Unionists, men who had always been loyal, could not

vote unless they took the oath required in the President’s proclamation.

There was a large class of loyal men in Louisiana, he said, who refused

to take that oath, for there had been presented to the Judiciary

Committee an earnest protest signed by Thomas J. Durant and thirty-one

others, influential Union men of that State, against the admission of

Senators and Representatives and against counting its electoral vote.

Those Senators, he added toward the conclusion of his remarks, who only

a few days before opposed the counting of Louisiana’s electoral vote

should now vote against the resolution acknowledging the government

which appointed the Senators that are claiming seats.[405]

Sumner and Davis referred to the resolution as a shadow. To this Mr.

Doolittle replied that the vote of Louisiana might be necessary to

secure the constitutional amendment, and that the new constitution of

that State had struck the shackles from 90,000 slaves not reached by the

Emancipation Proclamation.

Mr. Henderson, who favored the resolution, secured the floor, and

observed, among other things, that Louisiana and Arkansas did not claim

that they were yet strong enough to maintain their governments without

the military aid of the nation; but neither was Maryland, West Virginia,

Kentucky or Missouri; even Ohio, Indiana or Illinois, he said, could not

without national assistance maintain their State organizations for sixty

days against the Confederate armies.

“If we would have State governments,” said Mr. Henderson, “we must begin

somewhere and at some time.” It was nonsensical, he argued to talk of

restoring the Union, while keeping the loyal people in those States for

all time to come under military domination. “We must declare the right

in Congress,” he added, “to make and establish these governments for the

States, or permit the President, under military law, to set them up, or

we must recognize such as the loyal people may set up for themselves.”

If, as Madison thought, Congress cannot make them, but can only

guarantee such as already exist and are found to be republican in form,

it must be left with the President, under his power as the head of the

army, or to the people of the respective States. If left entirely with

the President he might by military force impose upon the State a

constitution against the wishes of both the loyal and disloyal. The

Senator frankly admitted that neither House would be under any

obligation to receive members sent from a State so constituted.

“But,” he went on to say, “if the people—the loyal masses, whether a

majority or a minority of the whole voting population as formerly

known—participated in its creation and acquiesce in the revival of the

State government, the case though inaugurated by the President in my

judgment would be very different. According to the theory of our

Government, and its practice in all its past time in analogous cases, it

would seem that whether Congress or the President inaugurated the

proceeding, the constitution can only receive its validity and authority

from the approval or acquiescence of the people to be affected; and that

brings me to consider how the people in the seceded States shall revive

their governments, and who are the legally qualified voters for that

purpose in these States.

“At the threshold of the inquiry we are met with the objection that the

States are now without officers of any kind legally elected, and that of

themselves they are powerless to inaugurate any movement to set up a

loyal government. It is said they have no officials to superintend the

election, to count the votes, and grant certificates of election.

However desirable these formalities may be, it has not been the uniform

practice of Congress to require them.”

In the case of California, continued Mr. Henderson, the first election

was called by the military order of a subordinate officer of the army, a

delegate convention was chosen, a constitution was framed by that

assembly and submitted to Congress. It was accepted as republican in

form, and under it a State government was inaugurated that for fifteen

years had been administered with the greatest success. The territory, he

said, was wholly without civil authorities recognized by the United

States. Congress had passed no enabling act, had prescribed no forms of

proceeding, had failed to fix the qualifications of voters, had

appointed no judges of election or other officers to count and certify

the votes; yet the act, however informal, was ratified because the

constitution on its face was unobjectionable in form, and it was

believed that the people interested acquiesced in the government it

established.

If the people of Rhode Island, added Mr. Henderson, had acquiesced in

the government set up under Dorr, Congress and the Executive would have

recognized it as legitimate. The Senator from Kentucky contended that

although a majority of the legal and qualified voters of Louisiana

should acquiesce in the new constitution Congress could not admit the

State. In support of his view Mr. Henderson pointed to the State

government of Missouri, which was the offspring of a movement purely

revolutionary.

In the States whose representatives were seeking admission to Congress

but one government asked recognition, and what if these organizations

were of revolutionary origin?—the revolution was on the side of loyalty.

Revolutionary governments had been accepted in time of peace—governments

springing up in the midst of anarchy, without the sanctions of

regularity; why, he asked, should they be rejected now when they were

needed to protect the loyal inhabitants of the respective States and to

aid the nation in vindicating its lost authority?

The assertion that on the face of these constitutions they were

republican in form Senator Sumner denied. They did not follow out the

principles of the Federal Constitution. This general answer was

unsatisfactory, and Mr. Henderson said that the only question with him

was how could he best get these States performing their legitimate

functions in the Union again. If, as the Massachusetts Senator

maintained, the act of secession took the States out, why could not the

act of loyal men bring them back? If secession, he argued, was potent

enough to take a State out, and that was mere revolution, why could not

the loyal men perfect a revolution on the side of Government as well as

rebels perfect a revolution on the side of secession, outrage and wrong?

The doctrine that secession took the States out of the Union, Sumner

objected to have imputed to him. A subsequent remark indicated one

ground of his opposition to the government of Louisiana. “If the loyal

men, white and black, recognize it, then,” he declared, “it will be

republican in form. Unless that is done, it will not be.”

When asked whether Congress could interfere with the right of suffrage

in one of the States, Sumner evaded a candid reply, and concealed his

meaning under these words: “It is the bounden duty of the United States

by act of Congress to guarantee complete freedom to every citizen, and

immunity from all oppression, and absolute equality before the law.” No

government that does not guarantee these things, he added, can be

recognized as republican in form according to the theory of the Federal

Constitution, if the United States are called upon to enforce the

constitutional guaranty.

Senator Henderson, interpreting this answer in the affirmative, observed

that if under the guaranty clause the national Legislature could

regulate the suffrage in the States, there was no limitation except the

mere discretion of Congress. In support of this position he cited

Madison in No. 43 of _The Federalist_, and of course had this part of

the argument his own way, for the test of a republican form satisfactory

to the Massachusetts Senator would leave few representatives in

Congress.

Mr. Henderson denied that the admission of Senators and Representatives

from these commonwealths would be a precedent for other States to demand

recognition, even with the institution of slavery, thus bringing back

the germs of a new rebellion against the Government; because in the

constitutions presented involuntary servitude was abolished. With

slavery remaining any restoration would be utterly useless. It was

against union with the free States that the Southern people had taken up

arms, and against restoration that they continued to use them. In that

struggle they would employ every moral and material force, including the

slave himself, stimulated by the boon of freedom, to resist the return

of their States. Whatever the future might bring, it would fail to bring

to the doors of Congress seeking admission a State constitution without

a positive interdict of slavery.

To the objection that a majority of the people of these States were in

rebellion and that to recognize the loyal minority would be to subvert

the whole republican system Senator Henderson replied that if it were

strictly true that a majority in a particular community “not only shall

but must govern,” then a majority of legal voters in a State desiring to

secede would have the undoubted right to do so. As no principle of the

General Government authorized such action, it was not true, he said,

that a majority of citizens in a State can govern themselves except in

strict obedience to the Constitution of the United States. If a majority

proved derelict and undertook to destroy the very Government of which

the State is a part, it is right that the minority, who sustain the

Government in its entirety, State and national, should institute

government for their protection. He admitted that General Banks did a

great many things for which there was no legal authority; but the

question was whether this constitution was the will of the loyal men of

Louisiana. If it was, their representatives had a right to seats on the

floor of Congress.

In reply to Sumner, Senator Henderson said he favored the idea that the

loyal men should govern a State, and he added, if that be the government

of the few it results from the voluntary disloyalty of the many. They,

of their own will, had relinquished the right to govern themselves under

the Constitution, and as they had no right to govern themselves

otherwise they could not govern at all. As to the oligarchy of skin, to

which Sumner had referred, Henderson believed that the regulation of the

suffrage was a question for the consideration of the States; if they

conferred the franchise on the negro, he did not object.

As to the Louisiana constitution the question was whether it embodied

the will of those legally entitled to exercise the functions of the

State government. If the casting of illegal votes vitiated elections,

but few elections, he asserted, would be valid.

If those States were admitted, they could immediately settle all

questions of suffrage, and Congress would be relieved of the difficulty

in future. He put clearly the difference of opinion prevailing among

Senators on this subject when he stated that Mr. Powell objected to the

new constitution of Louisiana because negro soldiers were permitted to

vote, while Mr. Sumner opposed it because negroes at home did not vote.

Concluding this part of his speech, he declared that the Federal

Government by recognizing the old organization in Rhode Island against

Dorr expressed its preference for a constitution of restricted suffrage.

Without naming his authority Henderson then read from a private letter

the opinion of a gentleman whom he regarded as one of the ablest jurists

in the United States.[406] The correspondent said in part:

It must be observed that the civil society, and the political

society so to speak, of a State need not necessarily do [be] the

same. In other words the basis of _representation_ may be the whole

population, but the basis of _suffrage_ be property, adult years,

&c. The power to choose rulers is lodged in the voters, and they may

not exceed one tenth of the population.... That portion of the

population in which political power is lodged, determines who shall

fill the respective offices, make laws, etc. Although the members of

that society may have possessed every requisite therefor, yet the

moment they ceased to be citizens of the United States they ceased

to belong thereto.

That rule holds good with respect to every member, and the political

society may, by death, disqualification of members, &c., be reduced

to a very few persons. To state an extreme case, for illustration of

the principle, Massachusetts formerly had a property qualification,

and although her population entitled her to, say, thirteen

Representatives in the United States House, her voters may not have

exceeded fifty thousand. Suppose while that qualification remained,

by some financial or other disaster, only one thousand or one

hundred citizens retained the necessary income or property, would

not the persons chosen to Congress by the few and only remaining

voters be duly elected? So with regard to any other element of

suffrage, as United States citizenship, if by its loss the voters

are reduced to very few in number, do not those few constitute the

political or voting power? As to the policy or impolicy of

restricted suffrage, we are not now concerned, but are endeavoring

to reach a constitutional and legal analysis of our governmental

system.

But here is encountered the startling and practical difficulty,

“Shall a few persons be permitted to govern a State, despite the

wishes of its inhabitants, and without giving them all a voice? Is

that republican?”

But it must be remembered that the few voters, say one seventh, or

one tenth of the whole population, have always been intrusted with

that power. Wisdom has fixed the basis of suffrage, without regard

to relative numbers; that is, it has endeavored, under our popular

system, to give the right or privilege to as many citizens as were

supposed competent to exercise it intelligently. The rules

prescribed as to age, sex, citizenship, &c., were deemed essential,

right, and proper. Whether many or few come within the rules does

not affect their validity.... If persons heretofore entitled to a

vote chose to commit a felony, and incur thereby, as a penalty, the

deprivation of their former right of suffrage, it is not supposed

that the loss of such votes is anti-republican. If, then, a majority

choose to perpetrate treason, or to expatriate themselves, or in any

other way become disqualified, how does that action vitiate the

rule? If they, after becoming disqualified, remain in the State, are

they not bound to submit to its rulers and laws? If their rulers are

chosen without their voice, is it not in consequence of their own

voluntary action? Indeed, it often happens that the persons elected

to office receive only a meager minority of the votes which could

have been lawfully polled, yet that fact has no influence upon the

legal result. So a person is often chosen by a minority of the votes

actually cast, and is not the majority bound to submit?

The author of this letter appears to have been more familiar with the

Constitution, as it was understood by its framers, than almost any

member of either House, notwithstanding the presence in Congress of many

distinguished statesmen. In the following eight propositions Mr.

Henderson then gave a masterly summary of the Presidential plan of

reconstruction:

1. I hold that the seceded States are still in the Union and cannot

get out of it except through amendment of the Constitution

permitting it.

2. The seceded States being still in the Union are entitled to claim

all the rights accorded to other States.

3. That each State now in the Union has the right to stand upon the

form of its constitution as it existed at the time of its admission.

The people of such State may change its constitution, provided they

retain a republican form of government; but neither the President

nor Congress can reform, alter, or amend such constitution, nor

prescribe any alteration or amendment as a condition of association

with the other States of the Union. The General Government may

properly lend its aid to enable the people to express their will;

but any attempt to exercise power constitutionally reserved to the

State, beyond what may be demanded by the immediate exigencies of

war, will not tend to restore the Union, but rather to destroy our

whole system of government.

4. When citizens of a State rebel and take up arms against the

General Government they lose their rights as citizens of the United

States, and they necessarily forfeit those rights and franchises in

their respective States which depend on United States citizenship.

5. If a seceded State be still in the Union, entitled to recognition

as a State, and a majority of the people have voluntarily withdrawn

their allegiance, the loyal minority constitute the State and should

govern it.

6. Congress should not reject the governments presented because of

mere irregularity in the proceedings leading to their

reorganization.

7. If Congress has no right to make and impose a constitution upon

the people of any State; if its power extends no further than to

guaranty preëxisting republican forms of government; if the State

still exists, and the loyal men are entitled to exercise the

functions of its government, it follows that the only questions to

be examined here are, first, is the constitution the will of the

loyal men qualified to act? and, second, is it republican in form?

8. The constitutions of Louisiana and Arkansas are thought to be

republican in form, and it is admitted that the loyal men of those

States respectively acquiesce in them. Hence the duty of Congress to

recognize them, and the duty of each House to admit their

representatives.[407]

On February 25 debate on Trumbull’s resolution was resumed. At this

point Mr. Sumner offered an amendment in substance as follows:

That it is the duty of the United States at the earliest practicable

moment, consistent with the common defence and general welfare, to

reëstablish by act of Congress republican governments in those

States where loyal governments have been vacated by the existing

rebellion, and thus, to the full extent of their power, fulfil the

requirement of the Constitution, that “the United States shall

guaranty to every State in this Union a republican form of

government.”

Sec. 2. _And be it further resolved_, That this important duty is

imposed by the Constitution in express terms on “the United States,”

and not on individuals or classes of individuals, or on any military

commander or executive officer, and cannot be intrusted to any such

persons, acting, it may be, for an oligarchical class, and in

disregard of large numbers of loyal people; but it must be performed

by the United States, represented by the President and both Houses

of Congress, acting for the whole people thereof.

Sec. 3. _And be it further resolved_, That, in determining the

extent of this duty, and in the absence of any precise definition of

the term “republican form of government,” we cannot err, if, when

called to perform this guaranty under the Constitution, we adopt the

self-evident truths of the Declaration of Independence as an

authoritative rule, and insist that in every reëstablished State the

consent of the governed shall be the only just foundation of

government, and all men shall be equal before the law.

Not less important is the declaration in the fourth section that “in the

performance of this guaranty, there can be no power under the

Constitution to disfranchise loyal people, or to recognize any such

disfranchisement, especially when it may hand over the loyal majority to

the government of the disloyal minority; nor can there be any power

under the Constitution to discriminate in favor of the rebellion by

admitting to the electoral franchise rebels who have forfeited all

rights and by excluding loyal persons who have never forfeited any

right.” To allow the reëstablishment of any State without proper

safeguards for the rights of all the citizens, and especially without

making it impossible for rebels to trample upon the rights of those who

are now fighting the battles of the Union, would be, said the succeeding

section, for the United States to fail in duty under the Constitution.

More directly in opposition to the resolution reported by the chairman

of the Judiciary Committee, however, was the seventh section, which

declared “That a government founded on military power, or having its

origin in military orders, cannot be a ‘republican form of government’

according to the requirement of the Constitution; and that its

recognition will be contrary not only to the Constitution, but also to

that essential principle of our Government which, in the language of

Jefferson, establishes ‘the supremacy of the civil over the military

authority.’”

The resolutions further asserted that a government founded on an

oligarchical class, even if erroneously recognized as a “republican form

of government,” could not sustain itself without national support; that

such an organization was not at that moment competent to discharge the

duties and execute the powers of a State, and that its recognition would

tend to enfeeble the Union, to postpone the day of reconciliation and to

endanger the national tranquillity. The ninth section renders clear one

ground of Sumner’s hostility to the recognition of Louisiana. It asserts

that

Considerations of expediency are in harmony with the requirements of

the Constitution, and the dictates of justice and reason, especially

now, when colored soldiers have shown their military value; that as

their muskets are needed for the national defence against rebels in

the field, so are their ballots yet more needed against the subtle

enemies of the Union at home; and that without their support at the

ballot-box the cause of human rights and of the Union itself will be

in constant peril.[408]

It was agreed on motion of Mr. Sumner to have his amendment printed.

Senator Howard, of Michigan, entered at this point into the debate. Much

of what he said has already been related in the preceding narration of

events leading up to the reinauguration of a loyal government in

Louisiana. While admitting that the President’s plan had been undertaken

for patriotic ends, he could not, he said, recognize in the Executive,

without the subsidiary aid of an act of Congress, any right to assure a

community, composed of voters numbering one tenth of the electors who

participated in the Presidential contest of 1860, that it would be

recognized as a legitimate government and entitled to the constitutional

guaranty. This, he said, was a stretch of authority beyond any previous

attempt, and he thought it time that Congress, in whom, he believed,

rested solely the authority of readmitting and reconstructing the

rebellious States, “should lay hold of this subject, assert their power,

and provide by some statute of uniform application for the

reconstruction, as it is called, and readmission of the insurrectionary

States. That is their right and their duty; that is not the right, it is

not the duty of the President.”

A State he defined negatively as not “the geographical superficies,” the

land, on which population resides, and positively as “a moral person, a

political community, possessing the faculty of political government.”

The land, he said, is the theatre on which the political community moves

and acts, but is endowed with no thought, no right, no duty. The

thinking beings residing upon it constitute the State.[409]

“A State of the Union or a State in the Union is, therefore, a people

yielding obedience to the laws of the Union, that is, the acts of

Congress and the national treaties.... A people who have a State

government which is republican in form; a people who were one of the

original thirteen States which formed the United States, or a people who

have, since the adoption of the Constitution, been, in the language of

that Constitution, ‘admitted by the Congress into this Union’ as States

upon an equal footing with the original States; for this equality of

rights and powers as States is plainly implied by the language and the

manifest intention of the instrument; and no other people except such

original State or admitted State; none but a State which permits the

laws of the Union to have full scope and force within its limits; none

but a State which sends Senators and Representatives to Congress

friendly to the Government itself, willing to vote men and money to

support and uphold it, who believe that a person forcibly resisting its

authority is a traitor and deserving of death; none but a State which is

willing to bring to trial, to convict such a traitor, and to punish him

for his treason; none but a State whose population is capable of

furnishing both the grand jury to indict and the traverse jury to

convict such a traitor; none but a State whose population and whose

authorities are in favor not only of permitting the laws of the United

States relating to civil rights to be executed, but who are willing that

the punitive code of the nation, the code of vengeance against its

enemies, shall be carried out; none but such are States of the Union....

“To be in fact a State of the Union and in the Union, this will or

consent of the people must be in harmony with the Constitution, and its

movements subsidiary to it. It must regard the Constitution as its

highest political good; its injunctions as the highest human law, its

commands as the infallible and final measure of civil duty. In short, to

be in the Union is to be actively and willingly coöperating with other

States in the performance of all those acts and things without which the

Federal Government cannot act or move, cannot perform the functions

required of it by the Constitution; it is to elect Senators and

Representatives to the Congress of the United States; to permit the

courts of the United States to be held within their limits, and its

citizens to act as jurors and officers of the court; to permit the

judgments and sentences of the court to be executed against its

citizens; to permit the United States mail to be carried through the

State and its contents distributed according to law; to permit the

officers of the United States to collect the Federal revenue whether

derived from foreign or domestic products; to permit the United States

to manage and control their own property, whether consisting of forts,

dockyards, arsenals, mints, or public lands; to make such elections of

Senators and Representatives freely and as the means of maintaining

itself as a State in the Union; and to permit all these things willingly

and freely as rights belonging to the Federal Government with which

neither the State government nor the people of the State have any right

whatever to interfere. In short, to be a State in the Union is to use

all those powers of the State which have a relation to the Federal

Government in a manner friendly to that Government, friendly to its

existence and continuance, in a manner promotive of the objects of that

Government; and to permit without hindrance the exercise within the

State of all the powers of the Federal Government.”

Though he declined to discuss the question whether a State by omitting

to send Representatives and Senators to Congress would on that account

cease to be a member of the Union, he gave it as his opinion that mere

failure to be represented in Congress would not be followed by such

consequences; but if a State not only refused to participate in Federal

legislation but went farther, and as a political community made war upon

the General Government, he declared that “it would be folly, madness, to

say that the State was not our enemy in every sense in which that term

can be employed to describe hostile relations between independent

communities.... No one will pretend that such a community is in the

Union in fact, for that would be to make an admission and in the same

breath to contradict it. _De facto_, such a community, and, if it be

bounded by State lines, such a State, is as completely out of the Union

as is Canada or Mexico, from the moment it assumes the attitude of

hostility until it is subdued and conquered by our arms, or until it

voluntarily lays down its arms, ejects its hostile government and

returns _in fact_ to its once friendly sentiments and friendly relations

to the Federal Government.”

“Loyalty,” continued Senator Howard, “thus becomes the final test in

solving the question, what is a State in the Union? If a State by its

overt acts has shown a want of this friendship, it is no longer in the

Union _de facto_, and cannot be treated as if it were. The Supreme

Court, acting upon the soundest principles of public law, have decided

the waging of war by a State, although acting under an illegitimate and

revolutionary government, renders her territory enemy’s territory, and

the people there resident enemies of the United States, in the sense of

the laws of war. And their decision could not have been different.”

The State, he argued further, was in fact, though wrongfully, out of the

Union because its actual government was disloyal and treasonable. Out of

it because unsubdued rebellion made it for the time being an independent

though unrecognized nation on the earth’s surface, throwing off its

allegiance to its paramount Government, and assuming by the sword to

assert its separate nationality.

“But we are at war with the rebel States, and are told ... that the

Government, so far at least as the rebel States are concerned, is under

some peculiar constitutional restraint by which its hands are tied; that

we are prohibited from ‘subjugating’ those States; that all we can do,

under the Constitution, is to break up the military array of the rebels,

disperse their armed bands, take away their arms, and do that very

indefinite duty, _restore order_; that thereupon our task is ended and

the rebel States have a constitutional right to come back into the Union

and participate in the enactment of Federal laws and the conduct of the

Federal Government. And we are menaced both in Congress and out with

terrible retributions if we conquer or attempt to conquer, if we

subjugate or attempt to subjugate, the rebel States. It is admitted by

these our critics that in an international war ... we should have all

the rights and powers of other independent nations, and might rightfully

conquer our adversary, ... that we might make a complete conquest of his

people and his territory....

“Now, it is lawful to wage such a foreign war, for the purpose of

effectuating such a complete conquest, and of course lawful to attain

it; ... lawful to substitute the political authority of the United

States for that of a hostile foreign nation;” otherwise, he argued, the

war could not be a successful one; hence in a war with a member of the

Union the United States could substitute for the authority of such

hostile commonwealth its own authority. There was no difference between

the two cases. The former actual hostile government should be supplanted

by the Federal Government. No other government had a right to give the

law. Had the conquered rebel people that right? No; for that would be to

allow them at once to expel their conquerors by a popular decree, and to

deny the supremacy of the Federal Government which had subdued them. Had

the old State government, he asked, the once loyal government, the right

to govern the conquered people? No; there was no such government. It had

long since ceased to exist. “In fact, there is no government there, none

at all, which can for a moment be recognized or permitted by the United

States, as the party now holding the actual mastery of the country; and

like every other case where the possession of a country has arisen from

the use of superior force, the will of the conqueror is the law—that is,

the will of the United States expressed, in the absence of acts of

Congress, by the Commander-in-Chief of the Army, but by the acts of

Congress after Congress has spoken.

“... No one will deny that we have a right to subdue by arms and to

reduce to quietude and submission a rebel State, that is, the people of

a State in insurrection. But how absurd to make this concession, and at

the same time to deny to us the constitutional power to occupy and hold

the territory and its people in our military grasp—an occupation just as

necessary to the end in view as the firing of cannon, the charging of

cavalry, or any other operation in the field.

“... The true objects of the war ... are the suppression of the

rebellion, the reëstablishment of the original Federal authority within

the State, and the revival of the loyalty of the people of the State as

the sole foundation and condition of all its civil rights as a State of

the Union and of the right of its people to be treated as friends and

not as enemies. Although the United States have the full and complete

right which conquest gives, for the purpose of subjecting these domestic

enemies to the exercise of the powers granted by the Constitution to

Congress, and for the purpose of restoring to the body-politic its vital

blood, loyalty to the Government, yet those purposes, those distinct

ends, are without doubt limits beyond which we cannot go. We are

restrained by the manifest objects for which the national Government was

formed; but restrained by no particular clause of the Constitution. The

instrument contains no such clause, and the limitation and restraint are

of precisely the same nature as those which any other government is

under in subduing an insurrection of its own subjects or citizens; the

plain object of the war in both cases being the restoration of

legitimate authority and the revival of allegiance. And until this

revival of allegiance there must be the same need of military occupation

and repression in both cases.”

After showing that the existence of the States is indispensable to that

of the Federal Government, he proceeded, “it is not permissible by mere

interpretation to clothe that Government with a power permanently to

abolish the State government by way of punishing or suppressing the

rebellion; or to convert the States into mere Territories of the United

States, that is, public domain, to be divided up afterward by lines

different from those of the States, and again admitted into the Union

like matured Territories, with such new geographical limits as Congress

may see fit to establish.”

Article IV., Section 3, Clause 1 of the Constitution the Senator

regarded as an express prohibition to change the boundaries of any State

once in the Union without its consent; “its consent in its capacity as a

State, freely given by its own Legislature.” He believed that the

Amnesty Proclamation of President Lincoln indicated that its author held

a different opinion.

He rejected the idea that the rebellious States could be converted into

Territories. This term, under our system, he added, “implies land never

lying in any State, land ceded to the United States either by the old

States, or purchased or conquered from foreign nations. The term never

has been used to describe a State or any part of a State; and it implies

not only the ownership of the soil and right of disposition, but full

and complete political jurisdiction in the Federal Government over the

people resident there....”

The objects of the conquest being as stated above, such forcible

occupation was, he continued, in its very nature temporary and ought to

cease the moment those objects were attained. This could not be done

without establishing a government to preserve order, life and property—a

provisional government, for that is the true historic name to be applied

in all cases where an old government has been overthrown; a provisional

government instituted by the conqueror, and to be continued just so long

as Congress deemed it necessary to continue it for the attainment, and

while attaining, those high objects. The occupancy, that is, the

possession of all the reins of local government by the Federal

authorities would be but temporary, provisional, fiduciary. It should

necessarily last until the Federal Government had done its duty in the

reëstablishment of order and the revival of loyalty. Until then it was,

and should continue, the omnipotent sovereign of the State, holding

actually by right of conquest, though for a particular purpose, and

being itself necessarily the final judge to determine when its tutelary

mission had been accomplished.

He avoided, he said, a discussion of the question whether a State can

commit suicide, that is, extinguish its own being by waging a rebellious

war against the Federal Government; instead of presenting any such

abstract question of political dialectics, the case, he declared, merely

presented the usual question which arose whenever and wherever there had

been a forcible revolution. What, he inquired, was the duty of the

paramount and lawful government in its treatment of insurgent

communities? And was not the Government doing its whole duty in

punishing the ringleaders in the revolt and restoring the old and

constitutional Government over those districts?

The Government, Mr. Howard proceeded, must be the final judge of the

duration of this military occupation. It was bound by the plain terms of

the Constitution not only to suppress the insurrection, which was done

the moment it had obtained firm possession of the whole of the hostile

territory, but to guarantee to the conquered State a republican form of

government. To perform this high and sacred trust, time of course was

necessary; likewise a great variety of means and instrumentalities, “of

all which the Government of the United States must, because it has no

superior, no equal in the matter, be the sole and final judge. These

means may embrace acts of provisional legislation, creating private

rights and duties not previously in existence, but existing by law and

of a permanent nature, paramount to all subsequent State legislation

because arising under the supreme authority of the nation, as, for

instance, the giving freedom to slaves; or they may undoubtedly embrace

conditions to be performed by the subdued States on taking their places

again in the Union, such as would be an ordinance forever abolishing

slavery in the State....

“Yet while thus in our military power, awaiting our action, looking to

their restoration, nothing is clearer than that the citizens of the

rebel States, though owing obedience to all the laws of the United

States, possess no political rights under the Constitution except

protection. They are not free to act, because their freedom to act

would, if indulged, lead them again to draw the sword against the United

States.... They have no right to send members to this body or to the

House of Representatives, much less to participate in the election of

President and Vice-President. They are the ward-provinces of the United

States, progressing toward the maturity of revived loyalty, but not yet

entitled to exercise the elective franchise or to participate in the

enactment of laws.

“If I am asked what I mean by the Government of the United States, and

whether I mean that the President as Commander-in-Chief has the

exclusive power to establish these provisional governments, I answer, I

do not. He has the right to regulate military occupation until Congress

has acted upon the subject; ... but the establishment of provisional

governments, the quieting of the rebellious province and the

reëstablishment of legitimate authority over it, pertains to the

sovereign power, that is, the law-giving power of the nation. With us

that power is lodged in Congress and not in the President; and in my

opinion it is the business of Congress, and Congress alone, to establish

and uphold these provisional governments.... We need not doubt that

whatever we see fit to enact will be approved and carried out by the

President. We cannot be more truly anxious than he to fix upon a stable,

firm policy for restoring peace and union; but we ought not to shut our

eyes to the necessities he will continually be under, to the almost

irresistible importunities he will encounter, to provide some sort of

civil government for the subdued States or districts; or to the

consequences of leaving such mighty questions for him to decide. It is

our plain duty to establish a uniform rule on the subject, so that all

may be treated alike and the same remedy be applied with a paternal but

firm and resolute hand to each delinquent State.”

He opposed for two reasons the “scheme” of allowing one tenth or any

other minor part of the male citizens of a commonwealth to organize a

government and assume to act as a State: first, “because as against the

will of an actual majority the government of such a minority must

necessarily come to a speedy end and thus invite a renewal of the civil

war, in that locality at least; and second, because government by a

minority is of evil example and inconsistent with the genius of American

liberty.... As a Republican I would sooner hazard ten slaveholders’

rebellions than risk liberty in a government by a minority.” In this

connection he assigned an additional motive for his attitude toward the

resolution. The will of the friendly element, he said, could prevail

only by military support, and such an organization, if intended as a

civil government, was not republican in the sense of the Constitution.

When such aid was withdrawn the majority, he asserted, would wreak

vengeance on the weakened minority.

Concluding this part of his argument, he added: “The measure now before

you proposes to acknowledge eight thousand citizens of Louisiana as a

State, and to give them the rights and privileges exercised by a voting

population of more than fifty thousand in 1860. Eight thousand are thus

to give the law or assume to give it to forty-two thousand—to more than

five times their number. This they may do so long as their decrees are

sustained by the presence and consent of a competent military force; but

we all know, both parties there know, the world knows, and, sir,

posterity will know, that it is not the eight thousand who govern the

State, but the fear of the bayonet, and the fear is inspired solely by

the President of the United States, as Commander-in-Chief of the Army

and Navy! Disguise it, or attempt to disguise it, as we may, to this

complexion doth it come at last. Yes, sir, both the eight thousand and

the forty-two thousand voters are governed not by themselves, but by the

bayonet! And this is at present the only government in Louisiana. The

object of the present measure is to continue this hybrid, unnatural

government there. It allows the meager and almost contemptible

proportion of less than one sixth of the voting population to govern the

whole State, and to have the influence of the whole State in our

legislation here, while we know that if the military forces were

withdrawn that privileged one sixth part would be swept away like chaff

before the hurricane breath of the enraged majority. Sir, such a

government is the merest bubble, especially if unsustained by military

power. This is too obvious to need further comment.”

“All this we might possibly endure,” continued Senator Howard, “were it

not that the measure before us clothes this mockery of a government,

this king of shreds and patches, this mistletoe State _régime_ that

falls to the earth the moment it ceases to cling around the flag-staff

of the national forces, with the high attribute of voting upon and

determining questions of legislation, questions of war or peace,

questions of prosecuting or ceasing to prosecute the present war, in

this Hall and in the Hall of the House of Representatives. This measure

introduces here Senators and Representatives whose immediate friends and

relatives at home have deliberately aided and assisted to put to death

myriads of Union soldiers from the North, and in swelling up that vast

debt of more than two thousand million dollars which now rests upon the

country. Think you that such Senators and Representatives, whose

constituents have already been stripped of their property by the rebel

government, and brought down to the depths of poverty; a community

without the habits of labor among the intelligent classes; naked,

hungry, despondent and sullen; think you that their Representatives

would at the present time be safe depositories of the power to tax their

constituents to pay this debt? Is it not, on the other hand, the part of

prudence to guard against the contingency of having that debt repudiated

by such legislators and the still more disgraceful contingency of being,

by their votes, aided by a Northern party, finally compelled to pay the

rebel debt of $4,000,000,000? And tell me, what right has Louisiana, the

majority of whose population is to-day, wherever they are, hostile to

this Government and anxious for its overthrow; what right has she, upon

any recognized principle of public law or justice, to be represented in

Congress?”

The treatment accorded Louisiana would, he feared, be a precedent for

the ten remaining States. There would be the expense of holding each for

a time in military occupation to bolster up their State governments. He

preferred for Louisiana and the other insurgent States a provisional

establishment for regulating domestic affairs, but without

representation in Congress until the mass of their people plainly

perceived their error in attempting to overthrow the General Government.

Congress should, he thought, take the subject of readmission into their

own hands. It was for them and not for the President to execute the

important guaranty to each State of a republican form of government, and

that duty became more and more urgent as the Federal armies swept on

from victory to victory. In making good that guaranty the great

indispensable necessity, he declared, was loyalty.[410]

Mr. Howard was followed immediately by Reverdy Johnson, of Maryland, who

to the great surprise of his fellow-Democrats argued in favor of the

resolution. His remarks were introduced by a concise statement of the

chief political events occurring in Louisiana between the capture of New

Orleans and the ratification, in September, 1864, of the new

constitution. Concluding this part of his speech he said:

“These, sir, are the facts. The Committee on the Judiciary—and in the

conclusion to which they came I concurred—were of opinion that under the

circumstances in which the State was at the period when these

proceedings were had, she could not be recognized as a State of the

United States under that constitution adopted in 1864, except by an act

of Congress. The committee were of opinion that it was not in the power

of the Executive under the circumstances to bring the State back under

that constitution. They were of opinion, however, that it was competent

for Congress to do so, and the only question before the Committee was,

whether, under the circumstances under which the State was at the time,

it was not the duty of Congress to bring the State back so as to have

her represented in the Union.”

His objection to the conclusion of the committee was that the

proceedings which led to the adoption of the constitution were

instituted at the instance and under the power of the Federal military

authorities. The precedent, he admitted, was really a bad one, and the

proposition upon which the committee were called to decide was whether,

if they were satisfied that the number of votes said to have been cast

were in fact cast, and the persons voting were loyal citizens, they

should be denied the privilege of being represented in the councils of

the nation and subjected to a continuance of military power. Mr. Johnson

added: “My impression is that, no matter how the proceedings were

instituted, whether it was by the military authority, or by the coming

together of the people of the State, if in point of fact the people of

the State did act voluntarily and were competent to act under the

original constitution, and were authorized to act by being loyal at the

time they did act, it is the duty of the government of the United States

to receive them back.

“Another objection was that, however true it might be that it would be

in the power of all the voters of the State to adopt a constitution for

themselves, or to claim the right of coming back to the Union under the

constitution existing at the time of the rebellion, it was not true that

it was in the power of fourteen [eleven] thousand, four hundred and

fourteen voters, when the entire voting population of the State was

fifty-one thousand, to take that course. As it seemed to me then, and

seems now, there is no evidence to show that a single citizen of

Louisiana was excluded from the right of voting.”

It was not so certain, he argued further, that the eleven thousand

voters who participated were not a large majority of the actual electors

in Louisiana, for the war engaged the greater part of the voting

population, and nine tenths of those who entered the Confederate service

had forfeited their lives upon the battlefield; of those above or below

the military age many had gone elsewhere, or if they remained in the

State it was as disloyal citizens.

It was not pretended, he said, in discussing the relation of the loyal

minority to the General Government, that by the act of secession they

ceased to be citizens of the United States. Their fidelity to the Union

entitled them to Federal protection. If loyal, they had forfeited no

rights belonging to them before the commencement of the rebellion. No

Federal law had been violated, no constitutional obligation evaded by

them. They could not ask admission into the Union, because to speak such

a desire was to subject themselves to punishment; when the protection of

the United States was afforded them and they could once more declare

their sentiments without hazard they met at their several election

polls, organized their government under existing law, and then, wishing

to change it, met in convention and adopted the constitution which had

been submitted to the Senate. “Why,” inquired Mr. Johnson, “should we

not receive it?” The right of eleven thousand citizens to change their

constitution was not denied, but their action was questioned because

there were others, then in arms against the Government of the United

States, who did not join them in asserting it. In examining the question

who were to exercise the authority of the State, he argued: “Now, if it

be true that the secession ordinance had no operation to carry the State

out, and that I understand even the Senator from Massachusetts [Mr.

Sumner] admitted last night; if it be true that the State is in the

Union notwithstanding the ordinance, then the only question to be

considered is, who are the people of Louisiana that are to exercise the

sovereign authority belonging to the State of Louisiana? Are they the

loyal or the disloyal? There can be but one answer to that inquiry. It

must only be the loyal.”

Senator Howard admitted, continued Mr. Johnson, that it is not in the

power of the United States to change the territorial limits of the

States that had gone out, because the Constitution prohibits it. If he

had thought for a moment he would have seen that the Constitution

equally prohibits any interference on the part of the General Government

with the exercise of the right of suffrage in a State. He then combated

at some length the intimation of Senators Howard and Sumner that any

power without a State had a right to prescribe qualifications for the

exercise of the suffrage.

Mr. Powell, too, concurred in this view and asked by what authority

General Banks and the President undertook to prescribe the

qualifications of voters in Louisiana. The Maryland Senator replied that

this question had been anticipated. The eleven thousand four hundred and

fourteen voters, according to the proof before the Senate, were all

loyal men and entitled to vote by the original constitution of

Louisiana, no matter how they were brought together. If, coming

together, they did an act which they would have been authorized to do if

they had come together voluntarily they ought to be received.

Powell then inquired, what right had the Senate to presume that there

may not have been twelve thousand loyal voters in Louisiana who were

deprived of the right of suffrage because of this order of General

Banks? As the Kentucky Senator understood it, no man could vote “unless

he would go forward and take the oath prescribed by the President and

swear to support and sustain all proclamations in regard to African

slavery already issued and all that might afterward be issued.” Mr.

Johnson acknowledged this difficulty and admitted that he had always

felt it; but they had the same difficulty, he asserted, in his own

State, and a much greater one; he would be sorry to think Maryland was

not in the Union. “Maryland is in the Union,” said Senator Powell. “The

constitution,” observed Johnson in reply, “which now makes her a State

in the Union was adopted the other day. I mean the one which governs

her. She has manumitted her slaves by force of that constitution. No man

in Maryland seriously contests the obligation of that constitution in

that particular or in any other. But it was adopted, in fact, by the

exclusion of a good many men who were entitled to vote.”

Mr. Johnson at this point became engaged in an argument, not wholly

relevant, with Sumner in which he gained some advantage over the

Massachusetts Senator. As a specimen of the latter’s parliamentary

tactics at this time it may not be irrelevant to reproduce a passage

from the _Congressional Globe_.

=Mr. Sumner.= Allow me to ask the Senator [Johnson] whether, in his

opinion, the Ordinance governing the Northwest Territory,

prohibiting slavery everywhere throughout that Territory, and which

was declared to be a perpetual compact, could be set aside by any

one of the States in the Territory now.

=Mr. Johnson.= I certainly think they can, except so far as rights

are vested.

=Mr. Sumner.= The Senator, then, thinks Ohio can enslave a

fellow-man?

=Mr. Johnson.= Just as much as Massachusetts can.

=Mr. Sumner.= Massachusetts cannot.

=Mr. Johnson.= Why not?

=Mr. Sumner.= Massachusetts cannot do an act of injustice.

=Mr. Johnson.= Oh, indeed! I did not know that. [Laughter.][411]

Notwithstanding this claim for his native State Sumner admitted a moment

later that Massachusetts had united in the Convention of 1787 with South

Carolina to deny to Congress authority to prohibit the slave trade for

twenty years, and he confessed that such action was unjust. His

inconsistency was still further exposed by Senator Henderson, who called

attention to the fact that the educational qualification imposed by the

Massachusetts constitution would exclude from the franchise almost every

negro in Louisiana if the provisions were applicable in the latter

State.[412]

After this colloquy, not uninteresting to the student of constitutional

history, the Maryland Senator resumed his remarks:

“One word more, sir, and I have done. If Congress passes this

resolution, and the State is admitted, no court will hereafter be able

to decide that she is not a State in the Union, and no court therefore

can call in question the validity or effect of any provision to be found

in her constitution. One of the provisions of this constitution is that

all the slaves of Louisiana are emancipated. Pass this resolution, admit

the State, and that provision is effectual at once.”[413]

Mr. Sumner, having in mind the fundamental condition imposed by Congress

upon the admission of Missouri, offered the following amendment of the

resolution from the Committee on the Judiciary:

_Provided_, That this shall not take effect except upon the

fundamental condition that within the State there shall be no denial

of the electoral franchise, or of any other rights on account of

color or race, but all persons shall be equal before the law. And

the Legislature of the State, by a solemn public act, shall declare

the assent of the State to this fundamental condition, and shall

transmit to the President of the United States an authentic copy of

such assent whenever the same shall be adopted, upon the receipt

whereof he shall, by proclamation, announce the fact; whereupon,

without any further proceedings on the part of Congress, this joint

resolution shall take effect.[414]

Though Senator Clark favored the principle of Sumner’s amendment, he

opposed it, as it stood, because it affected a resolution which proposed

“to recognize the government in the State of Louisiana,” which in his

judgment was still a State in the Union, “having its constitution

overthrown, but desiring and attempting to establish a new” one; and he

added, “I hold that we have no power to amend that constitution; and

that is the reason why I shall be obliged to vote against it here.”

He spoke for the adoption of Trumbull’s resolution and, in doing so,

traveled some of the ground gone over by Henderson. The government of

Louisiana, Mr. Clark believed, belonged to the Union people. He was not

aware that any definite number of persons was required to constitute a

State, nor did he understand how the majority by going into rebellion

could take away the rights of the loyal minority.

The guaranty of a republican form of government was made, he asserted,

to meet precisely such a case as had arisen in Louisiana. In this view

it became the duty of Congress to protect the government established by

the minority.[415]

Mr. Pomeroy, speaking to the principle of Sumner’s amendment, declared

that he would vote against all measures that looked like Congressional

interference with the right to vote in the States. Saulsbury interrupted

him to inquire what he would have done had the President, or his

Secretary of War, sent armed soldiers to the polls and imposed a test

upon voters as was done in Delaware, where Democrats were chased into

swamps and compelled in the night time to lie out in the snow. Pomeroy’s

only reply to this was to relate his own experience under Democratic

supremacy in the early days of Kansas. He resumed his remarks on

Louisiana, but these had been anticipated by the speakers who preceded

him. In conclusion he asserted that there were two reasons for

recognizing Arkansas where there was but one in favor of Louisiana.[416]

The Delaware Senator did not fail to call attention to Pomeroy’s

evasion, and said he was glad to observe a change in the spirit of some

of his Republican friends. “I think,” he said, “they begin to scent the

danger in the distance; that they begin to see that if a Government of

law is to be destroyed, and power is to be concentrated in Executive

hands, or in the hands of Executive agents, there is an end of liberty

in this country. I hail the dawn, therefore, of a better day.”[417]

Mr. Henderson again entered into the discussion, and in the course of

his remarks drew from Senator Sumner this remarkable statement

concerning Louisiana: “It is in and it is not. [Laughter.] The territory

is in; but as yet there is no State government that is in.” In this

discussion Sumner asserted also that when the bill of his friend Senator

Wade was before Congress no one questioned its constitutionality though

it proposed to interfere in the suffrage and to impose a condition upon

States at the time of their reconstruction. Pomeroy dissented from the

doctrine that Congress could reconstruct the insurgent States, and

maintained that the only question then was whether they would recognize

what the people of Louisiana had done.

Reverdy Johnson pointed out to Sumner the great increase of

representation in Congress which the South would acquire by an extension

of the suffrage to negroes. The three fifths provision, he said, would

be done away with, and he made the further observation that for years to

come the entire colored vote of that section would be in the hands of a

few white men. He urged recognition of both Louisiana and Arkansas, so

that the constitutional amendment would become binding, for unless

ratified by three fourths of all the States it would be open to doubt.

The session was drawing rapidly toward its close; it was late in the

evening of February 25, and the resolution under discussion was too

important to be passed without due consideration. These circumstances

offered Mr. Wade, who vehemently opposed the measure, a decent pretext

for demanding the “yeas” and “nays” on his motion to postpone the

subject till the first Monday of December following, 1865.

Before a vote was reached on this motion, however, Powell spoke again at

considerable length. In addition to his former arguments, many of which

were repeated, he said that “all the loyal Union men in the State of

Louisiana who refused, like supple menials and slaves, to crouch beneath

the iron military power of General Banks, and take that oath were

excluded from voting,” and he added, “I believe to-day there are more

men of that description in Louisiana than voted to ratify this

constitution.”

When asked by Mr. Henderson whether he had heard of any objection to it

on the part of the loyal men of Louisiana, Powell answered that Thomas

J. Durant and thirty-one others, distinguished, leading, loyal men of

that State, had made earnest and powerful protest against it, and

remonstrated against the admission to Congress of Senators and

Representatives from Louisiana. They were also opposed to counting her

electoral vote. Mr. Durant, he believed, was the first district-attorney

appointed in Louisiana by the present Executive. Henderson insinuated by

an inquiry that Durant was himself a candidate for office at that

election and took the oath prescribed. Powell not being informed on

these points, the matter was left in doubt.

The Kentucky Senator took this opportunity to characterize the manner of

General Banks in his statement before the Judiciary Committee as that of

a “swift witness, to make a case that he thought would cause Louisiana

to be admitted.” He also called upon some advocate of the resolution to

explain a support of the present measure after voting a few days before

for the resolution declaring that the electoral vote of Louisiana should

not be counted. If Louisiana was then a legitimate government, why, he

asked, was she not entitled to cast her electoral vote? He did not then

believe it a legitimate government and so opposed the counting of her

electoral vote; but the Senator from Maryland [Mr. Johnson] and the

Senator from Missouri [Mr. Henderson], who then voted with him, now

supported the resolution.[418]

Wade’s motion to postpone further consideration of the joint resolution

till the first Monday of December was defeated by a vote of 17 to

12.[419]

In the course of the discussions to postpone Sumner said that he would

regard its passage as a national calamity. It would be the political

Bull Run of that Administration, sacrificing, as it would, a great cause

and the great destinies of this Republic. When Trumbull taxed him with

intent to postpone discussion by dilatory motions the Massachusetts

Senator admitted his opposition and declared that to defeat the measure

he would employ any weapon in the arsenal of parliamentary warfare.

The friends of the Administration endeavored to press their adversaries

to take final action on the resolution. The earnestness of the two

factions provoked rather sharp censure of Sumner and the few Republicans

who acted with him and were attempting by dilatory motions to fatigue

the Senate into a postponement. Doolittle was especially severe on them,

and particularly on Sumner, who replied with much asperity. He was

supported by Howard and Chandler, while Trumbull, Foster and Doolittle

undertook a defence of the resolution and its advocates. This wrangling

appears to have delighted the Democratic members. Mr. Hendricks, indeed,

made no attempt to conceal his satisfaction.

“The discordant elements of the Republican party are exhibiting

themselves here,” said the Indiana Senator, “and I venture the prophecy

that a like exhibition will be witnessed over the country within a very

few years. But four years ago, at the Chicago Convention, when Mr.

Lincoln was nominated for the Presidency a solemn pledge was made to the

people of this country that that party, when it came into power, would

not undertake to interfere with the institutions of the States. As soon

as the disturbed condition of the country gave the pretext for it, the

undertaking was commenced; and now, when, in the judgment of some, it

has been accomplished, there comes up the grave question, what is to be

done, and what is to be the political condition of the four million

negroes when they are set free? And upon that question the real strife

of to-night has been witnessed. That is the subject and it need not be

disguised. It is growing out of the discordant elements of the party

that now governs the country.”[420]

Trumbull, in reply to an inquiry of Senator Wade, said that he had voted

against receiving the electoral vote of Louisiana because it had not

been recognized. Now he proposed to put it in a condition where it could

cast electoral votes, and do all other acts belonging to a State.

To this Wade replied that “If the President of the United States,

operating through his major-generals, can initiate a State government,

and can bring it here and force us, compel us, to receive as associates

on this floor these mere mockeries, these men of straw who represent

nobody, your Republic is at an end.

“Sir, I have heard a great deal about this pretended election in

Louisiana that did not come from Major-General Banks, and I pronounce

the proceeding a mockery. It is not pretended that there could be

drummed up from the riffraff of New Orleans and sent into the vicinity

under the mandate of a Major-General more than about six thousand votes,

where over fifty thousand were formerly polled.

* * * * *

“Talk not to me of your ten per cent. principle. A more absurd,

monarchical, and anti-American principle was never announced on God’s

earth——“[421]

At this point Senator Sherman, of Ohio, interposed to obtain

consideration for a revenue measure which he had in charge, whereupon

his colleague changed somewhat the declamation against the resolution to

a denunciation of its advocates, especially Trumbull, upon whom he

retorted the charge of retarding legitimate business. Howard resented

the charge of radical factiousness and denounced Trumbull with

considerable warmth. Sherman suggested that enough had been said on both

sides, and in the lighter skirmishing of the breathing-spell which

followed, Mr. Sprague, of Rhode Island, hitherto a silent spectator of

these exciting scenes, declared that he held in his possession a paper

indicating the names of the members of the Louisiana Legislature, and it

showed that twenty-five, or twenty-seven or thirty of those gentlemen

who constituted that assembly were officeholders of the Federal

Government, or the government of the State, which, he said, was the same

thing.[422]

While Sherman’s measure and Trumbull’s resolution were competing for

priority of consideration Sumner remarked that during the preceding

summer, 1864, he had met a distinguished gentleman just returned from

Louisiana; he had been present at some of the sittings of the

convention, having been in New Orleans in discharge of important public

duties. This gentleman, added Sumner, said compendiously that the

convention was “nothing but a stupendous hoax.”

When Reverdy Johnson inquired the name of Sumner’s informant, Senator

Grimes replied that he could furnish a large number of names of persons

present in New Orleans when the convention was held, and added: “If the

Senate will give a committee I will undertake to prove and I will prove

that the voters whose votes were polled in the outlying parishes at

Thibodeaux and Placquemines, and other places, were carried in army

transports to those places where they polled the votes, being discharged

soldiers and persons belonging in New Orleans, and were brought back to

New Orleans, and were not residents of the places where they purported

to vote.”[423]

Sumner, immediately after the uncontroverted statement of Mr. Grimes,

added, with more energy than elegance: “The pretended State government

in Louisiana is utterly indefensible whether you look at its origin or

its character. To describe it, I must use plain language. It is a mere

seven-months’ abortion, begotten by the bayonet in criminal conjunction

with the spirit of caste, and born before its time, rickety, unformed,

unfinished—whose continued existence will be a burden, a reproach, and a

wrong. That is the whole case; and yet the Senator from Illinois now

presses it upon the Senate at this moment to the exclusion of the

important public business of the country.”[424]

The urgency of the army and navy appropriation bills prevented for the

time further consideration of the Louisiana question. The subject,

however, was again brought before the Senate on March 2, 1865, by Mr.

Doolittle, who had received and had been requested to file with the

secretary of the Senate a certificate, under seal of the State of

Louisiana, of the election of Michael Hahn as a Senator of the United

States from the State of Louisiana for six years from March 4, 1865. Mr.

Davis, of Kentucky, opposed its reception. Doolittle’s motion to have it

laid on the table and filed was, however, agreed to.

Only two days of the session remained; in the temper of the Senate it

was impossible that the resolution could pass at that time, and the

House had not yet taken it up for discussion. In these circumstances the

measure was abandoned, though very reluctantly, by its champions.

-----

Footnote 399:

Globe, Part II., 2 Sess. 38th Cong., p. 1395.

Footnote 400:

Globe, Part I., 2 Sess. 38th Cong., pp. 971–974.

Footnote 401:

Ibid., p. 903.

Footnote 402:

Globe, Part II., 2 Sess. 38th Cong., p. 1011.

Footnote 403:

Ibid.

Footnote 404:

Ibid.

Footnote 405:

Globe, Part I., 2 Sess. 38th Cong., pp. 1061–1064.

Footnote 406:

While this chapter was in press an interesting letter from Senator

Henderson informed the author that the Hon. Samuel Treat, of St.

Louis, formerly Judge of the United States Court for the Eastern

District of Missouri, is the distinguished jurist referred to in the

text.

Footnote 407:

Globe, Part II., 2 Sess. 38th Cong., pp. 1065–1070.

Footnote 408:

Globe, Part II., 2 Sess. 38th Cong., p. 1091.

Footnote 409:

In support of this view the Senator cited Penhallow’s Case, 3 Dallas,

p. 94.

Footnote 410:

Globe, Part II., 2 Sess. 38th Cong., pp. 1091–1095.

Footnote 411:

Globe, Part II., 2 Sess. 38th Cong., p. 1097.

Footnote 412:

Ibid.

Footnote 413:

Ibid., pp. 1095–1098.

Footnote 414:

Globe, Part II., 2 Sess. 38th Cong., p. 1099.

Footnote 415:

Ibid., pp. 1101–1102.

Footnote 416:

Globe, Part II., 2 Sess. 38th Cong., pp. 1101–1102.

Footnote 417:

Ibid., p. 1102.

Footnote 418:

Globe, Part II., 2 Sess. 38th Cong., pp. 1106–1107.

Footnote 419:

Ibid., p. 1107.

Footnote 420:

Globe, Part II., 2 Sess. 38th Cong., p. 1111.

Footnote 421:

Globe, Part II., 2 Sess. 38th Cong., p. 1128.

Footnote 422:

Globe, Part II., 2 Sess. 38th Cong., p. 1129.

Footnote 423:

Ibid.

Footnote 424:

Globe, Part II., 2 Sess. 38th Cong., p. 1129.

XI

INCIDENTS OF RECONSTRUCTION

The Emancipation Proclamation did not affect, as is well known, the

status of slaves in the loyal border States or in the excepted parts of

Virginia and Louisiana. The State of Tennessee, too, as we have seen,

was not named in the edict of freedom; that was published by the

President simply as a measure of military necessity, and was not

regarded by him or by others as operative to prevent, when war had

ceased, a revival of servitude in the insurgent States, for negroes

could easily be imported from those loyal commonwealths still tolerating

that institution. It was uncertain, too, how the proclamation would

affect the status of slaves in those districts not yet overrun by the

Union armies. In the border States, in Tennessee and in the excepted

parts of Louisiana and Virginia there were probably 2,000,000 men in

bondage. In order, then, to abolish universally as well as permanently

to prohibit involuntary servitude an amendment of the Constitution was

proposed in the familiar language of the sixth section of the ordinance

of 1787. Though it passed the Senate, April 8, 1864, it failed at that

time to receive in the House the requisite two thirds vote. It has been

seen how upon the recommendation of Mr. Lincoln it was reconsidered and

passed by the Representatives at a succeeding session, January 31, 1865,

and submitted to the States for their action. It was adopted by his own

State, Illinois, on the following day. By the close of February sixteen

others had followed its example, and before the President’s death twenty

in all had ratified the Amendment. To Mr. Lincoln, who had long held

anti-slavery opinions, this expression of public sentiment was extremely

grateful; indeed, less than two months before his assassination he

declared his satisfaction at the popular verdict, and his confidence

that the States would consummate what Congress had so nobly begun. The

Thirteenth Amendment, however, was not announced as part of the organic

law until after the Presidential plan of reconstruction had been ignored

by the Thirty-ninth Congress. This subject, therefore, need not be

further discussed in these pages.

The extraordinary amount of work actually completed by the national

Legislature can be comprehended only by considering the degree of

perfection to which the committee system has been carried under

congressional government. Measures that conduct the reader over vast

stretches of the records of Congress occupy but a day or two in the

calendar. The discussions described in the two preceding chapters did

not, as might be supposed, engage the entire attention of Federal

legislators. It was desirable, if, indeed, it was not essential, that

the sentiments of the lawmaking body of the nation be authoritatively

declared on the question of admitting members to Congress from those

States reconstituted under the Executive plan; definitive action in the

matter of the electoral votes which they presented was also awaited with

not a little interest. Scarcely inferior in importance and more

instructive than these measures was the passage of an act, approved

March 3, 1865, which created in the War Department a “Bureau of

Refugees, Freedmen and Abandoned Lands.” As the system of relief then

inaugurated was destined to become an important agency in the work of

reconstruction a brief account of its origin and institution may not be

deemed superfluous.

A former chapter has related how great numbers of “contrabands,” by

assembling early in the war at Fortress Monroe and Newport News, taxed

the ingenuity of even General Butler to provide for their maintenance;

it also noticed an attempt under Mr. E. L. Pierce to improve the

condition of abandoned slaves in South Carolina, and the friendly

interest of Secretary Chase in that experiment. But the hundreds of

fugitives within Federal lines in May, 1861, had grown to be millions by

the beginning of 1865. Of this army of homeless freedmen the policy of

enlisting colored troops provided directly for nearly 200,000

able-bodied males. The women, the children and the large class

unsuitable for military service left a multitude still unprovided for.

Some relief, it is true, was afforded by the Treasury Department, which

undertook to establish on abandoned and confiscated lands colonies of

self-supporting negroes, but the ignorance and rapacity of many persons

entrusted with the supervision of this work led to its general failure.

Here and there, indeed, more satisfactory results were obtained, though

these isolated successes seldom reached the point of actual

encouragement. The South Carolina experiment may, therefore, be properly

regarded as the germ of the Freedmen’s Bureau.

The progress of these communities had been watched anxiously by the

abolition and the kindred associations which sprang up to continue the

work that anti-slavery men had begun. On this subject a committee

representing the Freedmen’s Aid Societies of Boston, New York,

Philadelphia and Cincinnati addressed, December 1, 1863, an able

memorial to the President. Without expressing a favorable opinion of the

plan suggested by the petitioners, Mr. Lincoln referred the question, as

one of great magnitude and importance, to the consideration of Congress.

The Freedmen’s Aid Societies, however, had been anticipated by

Representative Eliot, of Massachusetts, who had offered, January 12,

1863, a bill to establish a Bureau of Emancipation, which was referred

to a select committee; but other business, regarded as more urgent,

prevented them from reporting at that time a measure which had been

prepared. At the succeeding session the proposition was offered again.

After numerous efforts to secure favorable action, efforts extending

over a period of two years, Congress took the subject into

consideration. The House proposed one, the Senate a different measure; a

committee of conference suggested something unlike either, though

embodying important features of both. This, like every proposition

affecting the negro, encountered considerable opposition. The creation

of such a bureau, said its adversaries, conceded the very point that

pro-slavery men had always maintained; namely, that the negro was

incapable of taking care of himself. The extent of its powers, its

duration and the cost of its maintenance were successively made grounds

of opposition by those hostile to its establishment. Nor did its enemies

fail to point out the great temptation to abuse which was offered by the

system.

The act established in the War Department, to continue during the

rebellion and for one year thereafter, a bureau to which should be

committed the management of all confiscated or abandoned lands, and the

control of all subjects relating to refugees and freedmen from any

district within the territory embraced in the operations of the army,

under such regulations as might be adopted by the head of the bureau and

approved by the President.

The conduct of the bureau was entrusted to a commissioner appointed by

the President with the concurrence of the Senate. In the exercise of his

functions he was to be assisted by such clerks as the Secretary of War

might assign him; their number, of course, was limited by law. For his

compensation the head of the new bureau was to receive a sum fixed at

$3,000 per annum. To aid in executing the provisions of the act the

President was authorized to select, by and with the advice and consent

of the Senate, one assistant commissioner for each of the States

declared to be in insurrection, not, however, to exceed ten in number,

each to receive an annual salary of $2,500.

The Secretary of War, besides assigning clerks of the several grades

mentioned in the law, was authorized to issue, under regulations which

he might himself prescribe, such provisions, clothing and fuel as might

be deemed needful for the immediate and temporary shelter and supply of

destitute and suffering refugees and freedmen as well as their wives and

children. Any military officer could be detailed to duty under the act,

but without increase of pay or allowances.

It was further provided that the commissioner, “under the direction of

the President, shall have authority to set apart, for the use of loyal

refugees and freedmen, such tracts of land within the insurrectionary

States as shall have been abandoned, or to which the United States shall

have acquired title by confiscation or sale, or otherwise, and to every

male citizen, whether refugee or freedman, as aforesaid, there shall be

assigned not more than forty acres of such land, and the person to whom

it was so assigned shall be protected in the use and enjoyment of the

land for the term of three years at an annual rent not exceeding six per

centum upon the value of said land, as it was appraised by the State

authorities in the year 1860, for the purpose of taxation, and in case

no such appraisal can be found, then the rental shall be based upon the

estimated value of the land in said year, to be ascertained in such

manner as the commissioner may by regulation prescribe. At the end of

said term, or at any time during said term, the occupants of any parcels

so assigned may purchase the land, and receive such title thereto as the

United States can convey, upon paying therefor the value of the land, as

ascertained and fixed for the purpose of determining the annual rent

aforesaid.”[425]

It was made the duty of the assistant commissioners to submit a

quarterly report of their proceedings to the commissioner, who in turn

was required to report annually to the President before the commencement

of each regular session of Congress. Special reports might from time to

time be requested of either the head of the bureau or his subordinates.

The bureau thus established was organized principally by officers of the

regular army under direction of General Oliver O. Howard, who had been

selected by President Johnson as commissioner. It soon grew to vast

proportions. At first it was economically managed and beneficent in its

influence; subsequently, however, it degenerated into an abuse.

Interesting and instructive as would be an inquiry into its operations,

the history of this politico-philanthropic experiment does not fall

within the limits of this work.

Since the adjournment, February 27, 1861, of the Peace Convention, which

had been in session at Washington endeavoring to discover, if possible,

a means of avoiding the irrepressible conflict, there was a large class

who believed that if only they had been directing the policy of

Government the outbreak could have been averted; even when war was

flagrant and passions were highest this class, though diminished greatly

in numbers, did not altogether despair of effecting a settlement between

the sections. Besides these well-meaning patriots there were not a few

who were ambitious of notoriety or possessed of an undue opinion of

their own importance. Persons of both classes attempted from time to

time to bring about an armistice which would facilitate negotiations

between the two governments. The efforts of these men have no further

bearing on the subject of reconstruction than as they serve to show Mr.

Lincoln’s views in successive stages of the conflict.

Prominent among these attempts was the Jacquess-Gilmore mission, which

has been described in an interesting volume of Rebellion reminiscences

by one of the participants.[426] Horace Greeley’s career as a diplomat

is also a familiar story, which at once illustrates the guilelessness of

the editor and the sagacity of the President. Mr. Greeley’s failure at

Niagara Falls, however, did not discourage a similar undertaking by Hon.

Jeremiah S. Black, who, with no greater success, had an interview in

Canada with his former friend Jacob Thompson.[427]

More important, because of its consequences, than the work of any of

these volunteer commissioners was the visit of Francis P. Blair, Sr., to

Richmond. This distinguished politician and editor had in the days of

Nullification assisted in shaping the policy of the Government. The

bosom friend and confidential adviser of Andrew Jackson, Mr. Blair

thoroughly understood Southern feeling, and from long residence in

Washington was intimately acquainted with Southern leaders. His

political victories in the past encouraged, no doubt, the hope of some

notable achievement to crown his maturer years. For some time he had

been meditating a plan of reunion which would not only end the strife

but contribute to heal the wounds of war. Though anxious to communicate

his project to the President, he received no encouragement to do so. By

requesting Blair to call upon him after the fall of Savannah Mr. Lincoln

evaded a discussion of the subject. That contingency, however, was not

remote, and late in December the veteran political leader received from

the President a card bearing these words:

Allow the bearer, F. P. Blair, Sr., to pass our lines, go South, and

return.

=A. Lincoln.=

_December 28, 1864._