Chapter XIX: Section 7: And be it further enacted, That, after the appointment of (3)

For such reasons, Sir, and yielding to such influences, the Committee, after careful and conscientious deliberation, determined to recommend a new department, not unlike that of Agriculture, which should not be subject either to the Treasury or to the War. It was felt that in doing this they were doing the best for the cause, and they were not insensible also to the consideration that in this way they might secure a higher order of talent and of character for the service. Men fitted for Treasury agents or fitted for War might not always be the best for the care of freedmen. The man for this humane service should be humane by nature, and should sympathize especially with the race so long neglected and outraged. They must be versed, if I may so express myself, in the humanities of the subject.

After quoting the testimony of experts in favor of an
independent department, and of changing the actual system, he
concluded.

Such is the system that now exists, under which the freedman is the mere accident of the Treasury. Sir, it is unworthy of the Republic at this great period of our history.

Already the President, by irrepealable proclamation, has declared all slaves free. An Amendment to the Constitution will, in the course of a few weeks, place their freedom under the sanction of Constitutional Law. But this is not enough. The debt of justice will not be paid, if we do not take them by the hand in their passage from the house of bondage to the house of freedom: and this is what is proposed by the present measure. The temporary care of the freedman is the complement of Emancipation; but the general welfare is involved in the performance of this duty. Without it Emancipation may for a while seem at fault, and the general welfare gravely suffer.

February 14th and 21st, the consideration of the report was
continued,--Mr. Davis, of Kentucky, Mr. Hendricks, Mr. Grimes,
and Mr. Sprague, of Rhode Island, speaking against it. In reply
to Mr. Grimes, who moved the postponement of its consideration,
Mr. Sumner again vindicated the measure.

I hope there will be no postponement. A motion to postpone at the present time is a motion to kill, and such is the unquestionable object of the Senator from Iowa [Mr. GRIMES]. He is against the bill now, just as he was at the beginning, and is acting according to his sense of duty, when he tries in every way to defeat it. But are Senators whose votes have thus far shown a determination to do something for the freedmen ready to follow his example?

The Senator says he wishes time. Well. But he wishes something more. He wishes to arrest this legislation now at its latest stage. He says that he desires opportunity for debate. But, Sir, has he not had this opportunity in largest measure and to excess? The Senate cannot forget how carefully and conscientiously this question has been considered: first, in a Committee of this body, who gave their best attention to it for weeks, during the last session of Congress; then for five days and two evenings in the Senate, during which the Senator signalized his opposition; then again in a Conference Committee, the present session, where the whole subject was most thoroughly studied in every possible light; and now in this debate, running over several days, which has already occupied the Senate since the report of that Committee. Surely, if the Senator is not satisfied with the labors of the Committees of this body, he cannot complain that opportunity of debate has been wanting. Sir, he has had the opportunity, and has exercised it.

I am pained by this opposition. It is out of season. I am pained by it especially from the Senator from Iowa. I do not judge him. But he will pardon me, if I say that from the beginning he has shown a strange insensibility to this cause. He is for Liberty, but he will not help us assure it to those who have for generations been despoiled of it. Sir, I am in earnest. Seriously, religiously, I accept Emancipation as proclaimed by the President, and now, by the votes of both Houses of Congress, placed under the sanction of Constitutional Law. But even Emancipation is not enough. You must see to it that it is not nullified or evaded; and you must see to it especially that the new-made freedmen are protected in the rights now assured to them, and that they are saved from the prevailing caste, which menaces Slavery under some new form; and this is the object of the present measure.

Would you know the perils of freedmen ever since Emancipation? Listen, then, to the words of that true patriot, General Wadsworth, of New York, who, after his visit to the Valley of the Mississippi, and personal observation of the freedmen there, testified:--

“There is one thing that must be taken into account, and that
is, that there will exist a very strong disposition among the
masters to control these people and keep them as a subordinate
and subjected class. Undoubtedly they intend to do that. I
think the tendency to establish a system of serfdom is the
great danger to be guarded against. I talked with a planter in
the La Fourche district, near Thibodeauville. He said he was
not in favor of secession; he avowed his hope and expectation
that Slavery would be restored there in some form. I said, ‘If
we went away and left these people now, do you suppose you
could reduce them again to slavery?’ He laughed to scorn the
idea that they could not. ‘What!’ said I, ‘these men who have
had arms in their hands?’ ‘Yes,’ he said; ‘we should take the
arms away from them, of course.’”[356]

But this emphatic attestation is simply in harmony with accumulated testimony from other quarters. The freedmen, rejoicing in recovered rights, must for a while be saved from the traditional harshness and cruelty to which for generations they have been exposed. Call it protection,--call it what you will: the power of the Government must be to them a shield. And yet you hesitate.

The Senator from Iowa renews the objections he made at an earlier stage. It will not be forgotten that he most earnestly protested against the bill, as giving to persons a control of the freedman. It was shown, I think, to demonstration, that he was mistaken. But, out of deference to his sensibilities, and that nothing might seem to be wanting, other safeguards were introduced, as amendments, on his motion, or in pursuance of his suggestions. But all this is not enough to secure his favor. He objects still.

Very well. So far as I understand his objection then and now, it is twofold: first, that the freedman is placed under constraint, and that he is not a freeman; and, secondly, that he is treated too much as an infant or a pupil. Now I undertake to say that the objection, in both these forms, is absolutely inapplicable.

The freedman is treated in every respect as a freeman. Again and again in the bill his rights are secured to him. Thus, for instance, in the fourth section, it is expressly provided that “every such freedman shall be treated in all respects as a free man, with all proper remedies in courts of justice, and no power or control shall be exercised with regard to him except in conformity with law.” Language cannot go further. In face of these positive words, so completely in harmony with the whole bill, it is vain to say that the freedman is not a freeman. Sir, he is a freeman just as much as the Senator himself, with a title derived from the Almighty, which no person can assail. When the Senator finds danger to the freedman, he consults his imagination, inflamed by hostile sentiments he has allowed himself to nurse.

But the Senator complains that the freedman is treated too much as an infant or a pupil. How? Where? Let him point out the objectionable words. Analyze the bill. The freedmen, it is admitted, are under the general superintendence of the Commissioner. But are we not all under the general superintendence of the police, to which we may appeal for protection in case of need? And just such protection the freedmen may expect from the Commissioner, according to his power. The Senator himself is under the superintendence of the Presiding Officer of the Senate, whose duty it is to see that he is protected in his rights on this floor. But the Presiding Officer can do nothing except according to law; and the Commissioner is bound by the same inevitable limitations.

But there are regulations applicable to the contracts of the freedman. Very well. Why not? To protect him from the imposition and tyranny of the dominant race, it is provided that “no freedman shall be employed on any estate above mentioned otherwise than according to _voluntary contract_, reduced to writing, and certified by the Assistant Commissioner or local superintendent.” Mark the language,--“voluntary contract.” What more can be desired? But this is reduced to writing. Certainly, as a safeguard to the freedman, and for his benefit. Then, again, the Assistant Commissioners are to act “as advisory guardians,” in which capacity they are to “aid the freedmen in the adjustment of their wages.” But do not forget that the freedman is a freeman, and if he does not need such aid or advice, he may reject it, just as much as the Senator himself. Look at other clauses, and they will all be found equally innocent.

But there is the section, originally introduced on motion of the Senator from West Virginia [Mr. WILLEY], providing, that, “whenever the Commissioner cannot otherwise employ any of the freedmen who may come under his care, he shall, so far as practicable, make provision for them with humane and suitable persons, at a just compensation for their services.” Here, again, are tyranny and outrage carried to the highest point. But how? The superintendence is that of the _intelligence office_, and everything done is to be “in conformity with law.” This clause, even if it were in any respect ambiguous, must be ruled by those earlier words which declare that “every such freedman shall be treated in all respects as a free man.” What more can be desired? With this rule as a guide, no freedman can suffer in rights.

The strange complaint is made, that this measure is too favorable to the freedman; and, indeed, we have been told that something is needed for the whites. Very well; let it be done. I trust that an enlightened Government will not fail to recognize its duties to all alike. Meanwhile, it is proposed that abandoned lands shall be leased to freedmen, and, if they are not able and disposed to take the lands for a twelvemonth, then they are to be leased to other persons. Reflect that the freedmen, for weary generations, have fertilized these lands with their sweat. The time has come when they should enjoy the results of their labor, at least for a few months. This war has grown out of injustice to them. Plainly, to them we owe the first fruits of justice. Besides, this provision is essential as a safeguard against white speculators from a distance, who will seek to monopolize these lands, with little or no regard to the freedman. Ay, Sir, it is too evident that it is essential as a safeguard against grasping neighbors, who still pant and throb with the bad passions of Slavery.

Mr. President, the objections are vain. The bill is not hurtful to the freedman. It is not hostile to Liberty. Its declared object is the good of the freedman. Its inspiration is Liberty. Look at it as a whole or in detail, and you will find the same object and the same inspiration. It only remains that the Senate should adopt it, and give a new assurance of justice to an oppressed race. In the name of justice, I ask your votes.

The motion to postpone was rejected,--Yeas 13, Nays 16.

* * * * *

February 22d, the debate was resumed by Mr. Hale, of New
Hampshire, in opposition to the report, who was followed on the
same side by Mr. Lane, of Indiana, Mr. Davis, of Kentucky, and
Mr. Reverdy Johnson, of Maryland. Mr. Conness, of California,
spoke in favor of it. Mr. Sumner, in reply, after answering
the criticisms on the bill, and adducing testimony to its
importance, said:--

I have read these opinions merely to bring home to the Senate, on authoritative grounds, the importance of providing some protection for this large body of freedmen, now justly looking to the National Government as their guardian. That Government has given them the great boon of Freedom. It is for us to go further, and see that Freedom is something more than a barren letter. We must see that it is a fruitful thing, of which they can avail themselves always, and which will be to them everywhere prolific of good.

Mr. President, I did not intend to enter into this discussion this morning. I hoped that a vote might be taken without further debate. I have no desire to discuss it. To my mind the question is perfectly clear. If you reject the pending measure, you voluntarily refuse to carry forward that great act of Emancipation which you have already sanctioned. I say, therefore, for the sake of Emancipation, let the report of this Committee be adopted; and I appeal to you, Senators, do not be afraid to be just.

The vote on the report of the Conference Committee stood,--Yeas
14, Nays 24; so that, though accepted in the House, it was
lost in the Senate. On motion of Mr. Wilson, of Massachusetts,
another Conference Committee was ordered, consisting of
himself, Mr. Harlan, of Iowa, and Mr. Willey, of West Virginia.
The House, on their part, appointed Mr. Schenck, of Ohio, Mr.
Boutwell, of Massachusetts, and Mr. Rollins, of Missouri. The
Committee reported still another bill, placing the bureau in
the War Department.

March 3d, the Senate agreed to the report without a division.
In the House, after an ineffectual effort to lay it on the
table, it was agreed to without a division, and the same day
was approved by the President.

MAKE HASTE SLOWLY: IRREVERSIBLE GUARANTIES.

SPEECH IN THE SENATE, ON THE RECOGNITION OF ARKANSAS, JUNE 13, 1864.

June 10th, Mr. Lane, of Kansas, asked, and by unanimous
consent obtained, leave to bring in a joint resolution for
the recognition of the Free State Government of the State of
Arkansas, which was read, passed to a second reading, and
ordered to be printed.

June 13th, he called it up for consideration, when Mr. Sumner
made the following speech.

MR. PRESIDENT,--I begin by expressing sympathy with every loyal soul in a Rebel State. Knowing well, from long experience, the cruel rule and domination of Slavery, even in this Chamber, I cannot be indifferent to the trials of loyalty anywhere in these latter days. Show me a man who in a Rebel State stands faithful to the national cause, and I go forth to meet him with heart in hand. To have been true at a time when truth was disowned is enough for honor as well as thanks. But the merits of individuals cannot determine the rights of States.

The case is too important. If individual merits, universally recognized, could save a State to present rights in the Union, Tennessee would not now be a self-condemned exile. There are few anywhere so entirely true as Andrew Johnson, and not one in all the Rebel States who so bravely encountered the Rebellion face to face. Ten men might have saved Sodom; but he was in himself more than ten men. Besides, he was a Senator on this floor, when the State he represented took its place in the Rebel Confederacy, and joined in war against the National Government; but he stayed behind with his country, and kept his seat here. Persons ignorant of Parliamentary Law have sometimes argued from the latter circumstance that Rebel Tennessee was still entitled to her ancient rights in the Union; but they forget two principles, fixed long ago, beyond all question, in England, the original home of Parliamentary Law: first, that the power once conferred by an election to Parliament is irrevocable, so that it is not affected by any subsequent change in the constituency; and, secondly, that a member, when once chosen, is _member for the whole kingdom_, becoming thereby, according to the words of an early author, not merely knight or burgess of the county or borough which elected him, but knight or burgess of England.[357] If these two principles are not entirely discarded in our political system, then the seat of Andrew Johnson was not in any respect affected by the subsequent madness of his State, nor can the legality of his seat be any argument for the ancient rights of his State.

Nor, again, can the fact that Andrew Johnson has been selected by the Convention of a powerful political party as candidate for the Vice-Presidency be any argument for these ancient rights. It is not necessary that a candidate for President or Vice-President should belong to a State. It is enough, under the Constitution, that he is “a natural born citizen.” He may be of the District of Columbia, or of a Territory, or of a Rebel State; for these are all equally within the rightful jurisdiction of the United States, and this is enough. The national jurisdiction is permanent and indefeasible.

Therefore, I repeat again, we must look beyond the virtues of individuals. Not all the virtues under heaven can suffice to make a State of this Union, or establish any claim for restoration to ancient rights, where there is failure to comply with essential requirements.

* * * * *

The question under consideration is of momentous interest. It concerns primarily the claim to a seat in the Senate; but it includes also the right of the State of Arkansas to share at this moment in the National Government by representation in Congress, and also the other right of participating in the approaching Presidential election. And behind this great question looms that other, “How shall we treat the Rebel States?” This has already been answered by the House of Representatives in a bill passed by that body; but it has not yet been decided by the Senate.

Unexpectedly, the great question and all the subordinate questions are presented for decision. Not only Arkansas, but Louisiana, and every other Rebel State, will await your judgment. No question of equal importance has been presented since it was determined to meet the Rebellion by arms.

For the present I forbear all minute discussion, either of history or principle. It will be enough, if I state the case, and exhibit the questions involved.

William M. Fishback, a citizen of Arkansas, appears before the Senate of the United States, and claims membership. He asserts that he has been duly chosen to fill the unexpired term of Senator Sebastian, who was expelled in 1861 for complicity with the Rebellion; and he produces a certificate purporting to be signed by the Governor of Arkansas.

Shall this claimant be admitted to a seat in the Senate? Such is the immediate question. But I have said that there are other questions, of the highest importance, which must be considered now and here; for they all enter into the present case. Admitting the claimant, we must also admit that other claimant who has appeared with like credentials as colleague. The question is not, therefore, Shall Arkansas have one vote in the Senate? but, Shall it have two?

Then, again, if Arkansas is fully represented in the Senate, does it not follow that it is to be represented to the same extent in the other House? If represented in that Chamber, such representation must be under the existing Apportionment Act, assigning to Arkansas two Representatives, chosen by districts, without reference to the number of votes polled in either.

One privilege draws after it another. To him that hath shall be given. If Arkansas is admitted to immediate representation in the National Government, this Rebel State, which has overthrown the Constitution within its borders, and assumed the front of war, can participate in the approaching election of President and Vice-President by organizing an electoral college, and, in case the election of either of those great officers should devolve upon Congress, can give a vote affecting the result as weighty as that of Massachusetts, New York, or Illinois; for, in such case, the vote, which in the Senate is _per capita_, is in the House by States.

Therefore, Sir, I repeat, the decision of the question before us rules all the questions that can arise upon the representation of Arkansas in the Congress of the United States, and also the other question of the participation of Arkansas in the election of President and Vice-President for the term of four years next ensuing. The importance of such a subject cannot be exaggerated. It is important constitutionally, important practically, important also to the peace of the country. It ought to be discussed fully and carefully, especially when it is considered that we are on the eve of a Presidential election which may possibly be affected by our decision.

* * * * *

Mr. President, I am against the admission of Arkansas to representation in the National Government _at this time and under existing circumstances_. There may be a time, and there may be circumstances, when such representation will be proper; but clearly at this moment it is improper, unreasonable, and dangerous. The reasons are obvious.

_First._ The proposed representation is that of a _minority_, not only of the people, but even of the ancient voters of Arkansas. It is superfluous to say that such representation is inconsistent with republican principles, and can be vindicated only by overruling necessity. But this point becomes of peculiar importance, when it is considered that the minority asking representation has acquiesced in rebellion, and, still further, that some of those composing the minority have actively assisted the public enemy. Look at the facts.

The authority and jurisdiction of the United States were wholly overthrown and subverted in Arkansas. By action of the State Legislature, and of a Convention called by this Legislature, followed by a popular vote, the State was made _de facto_ a member of the Rebel Confederacy. However much we may deny the rightfulness or the legality of the proceeding, there is no question with regard to the fact. This at least is undeniable, and constitutes an essential ingredient in the case. As a fact it must be recognized, whatever the consequences, precisely as truth is recognized. But this unquestionable fact was followed by a general acquiescence of the people of Arkansas; so that this State became in fact, as in name, a Rebel State, linked with other Rebel States arrayed in arms against the National Government.

At last, after much bloodshed and various vicissitudes, through the exertion of the military power of the United States, a portion of the territory of this State has been rescued from Rebel domination, and brought within the lines of our army. The rest will follow, in process of time, and after further bloodshed, until eventually the whole State will be rescued from Rebel domination, and brought within the lines of our army. Even then we shall be obliged to wait for tokens of returning loyalty also. But at the present moment the possession of the State is still contested by opposing forces, and a minority only has signified adhesion or re-adhesion to the National Government. This objection, of course, may be removed by time; but it existed in full force at the election of the claimant, and is decisive upon the question before us.

Unquestionably, it is according to the genius of our Government that the _majority_ should rule. A majority is the natural base of a republic. To found a republic on a minority is scarcely less impracticable than to stand a pyramid on its apex.

_Secondly._ The proposed representation of Arkansas in the Senate is unjust and inequitable in relation to the representation of the loyal States; and if extended to representation in the House of Representatives and in the Electoral Colleges, it becomes still more unjust and inequitable. By the original terms of union, the other States have agreed that _the whole people_ of Arkansas shall have two Senators, and Representatives according to a fixed proportion,--and also electoral votes for President and Vice-President according to the number of Senators and Representatives. Now it would be manifestly wrong toward all the loyal States, if not a fraud upon their rights, to assign such representation and such privilege to a _fraction_ of the people of Arkansas, constituting a small minority, so that, on all questions of legislation, of treaties, or of appointments, in the discharge of legislative, diplomatic, and executive trusts, this small minority would wield in the Senate all the power of a loyal State, while in the choice of President and Vice-President it might turn the scale.

_Thirdly._ The military occupation of Arkansas, and the unsettled condition of the community there, cannot be forgotten, when we are considering whether to admit the representatives of a newly organized _civil government_ in that State. Military occupation is practically inconsistent with civil government. Even if the former does not absolutely exclude the latter, yet it is evident that it must exercise a controlling influence. It is impossible in time of war to preserve the conditions of peace,--especially in time of civil war. Military power, when engaged in subduing rebellion, cannot be insensible to political forces. It must win what it cannot overcome. From the nature of the case, ordinary political conditions are disturbed or subverted, and electoral power loses its essential character, so as to be no longer entitled to that peculiar respect which it enjoys under American institutions. These observations I apply solely to a theatre of war; and I insist, that, so applied, they are true, just, and indisputable.

But, in point of fact, there is another and kindred force, which conspires with the former to disturb suffrage in Arkansas: I mean that proceeding from incursions and hostile operations of the enemy. These prevent elections in some parts of the State, and render them partial in others; and this unhappy condition must continue so long as war prevails there. That I do not exaggerate these perils, let me quote the testimony of General Gantt, a citizen of Arkansas, who participated in the recent election. “Thousands,” says he, “when they started to the polls in the morning, felt that at nightfall, when they returned, it might be to a mass of charred and smoking ruins and to a beggared and impoverished family; and yet other thousands knew that the knife of the murderous crew of Shelby, Marmaduke, and others was whetted for their throats, and might do their execution before the polls were reached; and all knew, that, should the tide of war surge backward over our State, instead of being simply ordered out of the lines, bankruptcy, dungeons, chains, and an ignominious death awaited them.” This picture, which is unquestionably authentic, while it interests us for the heroic sufferers, testifies conclusively how incapable Arkansas is at this moment to bear the burdens and discharge the trusts of a State.

_Fourthly._ The present organization in Arkansas, seeking representation on this floor, is without that _legality of origin_ required by the American system of government. It is revolutionary in character. Nay, more, it may all be traced to _a military order_. Clearly, this incongruity will not be tolerated. _A new civil government_, to be recognized as a State of this Union, _cannot be born of military power_. Congress has jurisdiction over all those States in which loyal governments have been overturned; and this jurisdiction furnishes a natural, obvious, and constitutional origin for the new government. Without it, I am at a loss to see how _the connecting link of legality_ can be preserved between the old and the new. This is not the first time in our national history that Congress has stood between the old and the new. Such is its natural place and function. At the separation of the Colonies from the mother country, it interfered by formal resolution to indicate the process by which the new governments should be constituted, although the Tories of that day doubted the power. According to this example, sustained by congenial principles, Congress must now set the new government in motion, and infuse into it the vital force found in liberty regulated by law.

_Fifthly._ Arkansas is at this moment shut out from _commercial intercourse_ with the loyal States, under the Proclamation of the President of 16th August, 1861, in pursuance of the Act of Congress of 13th July, 1861. By this Proclamation it is placed on the list of States declared in “insurrection against the United States; and all commercial intercourse between the same and the inhabitants thereof and the citizens of other States and other parts of the United States is unlawful, and will remain unlawful until such insurrection shall cease or has been suppressed”; and all goods, chattels, wares, and merchandise, coming from any of the enumerated States and proceeding to any other State by land or water, are made liable to forfeiture.[358] And yet Arkansas, while still under the ban of a Presidential proclamation and a Congressional statute establishing non-intercourse with other States, asks representation in the National Government. Disqualified for trade with other States, it asks to govern them. The old practice is to be reversed. Thus far in history trade has preceded political power; now political power is to precede trade. Arkansas cannot send her merchants into the loyal States to buy and sell. Can she send representatives into this Chamber to vote? Can she send electors into the Electoral College to choose a President?

Such, Mr. President, are five distinct reasons, obvious to the most superficial observer, against recognizing any representation from Arkansas at this time: first, because the representation is founded on a minority; secondly, because any such representation, unjust in itself, is especially unjust toward the loyal States; thirdly, because the military occupation of Arkansas, and its exposed condition, are inconsistent with civil government; fourthly, because the present organization of Arkansas is without that legality of origin required by American institutions; and, fifthly, because it is absurd to admit a State to representation which is still, by solemn proclamation, shut out from commercial intercourse with the loyal States.

The argument thus far applies to the present case, without touching that other question, sometimes discussed, whether, in point of fact, Arkansas is still a State of the Union. Evidently, Arkansas may have preserved her place in the Union, and yet not be entitled at this moment to representation. She may be a State, but in a condition of political syncope or suspended animation. Or she may be under such abnormal influences as to render her, for the time being, incompetent to perform the functions of a State.

But if Arkansas, by reason of her Ordinance of Secession, and open participation in the war against us, has lost a place in the Union, it is manifest that the Senate cannot now admit the claimant to a seat as one of its members; nor can it admit him at all, until Congress, by joint vote, has restored the State to its original position. The power to admit States into this Union, and, by consequence, the power to _readmit_ them, are vested in Congress, to be exerted by joint resolution or act, with the concurrence of both Chambers and the approval of the President. Here I content myself with a statement. For the present I waive all consideration of the _status_ of the seceded States. The argument is complete without it.

It is my desire to present this case on the facts, and not on any theory or hypothesis. I say nothing, therefore, on the question, what constitutes a State government in this Union; whether a State, by a process of suicide, may not cease to exist; whether a State may not by forfeiture lose its rights as a State; or whether, when the loyal government is overthrown, a State does not lapse into the condition of a Territory under Congressional jurisdiction, to be treated like other national territory. All these questions I put aside. I choose to present the case of Arkansas on facts which nobody can question.

It is enough that the loyal authorities were overthrown, and there were no functionaries holding office under the State government bound by oath to support the Constitution of the United States; and since a State government is necessarily composed of such functionaries thus bound by oath, there was no State government we could recognize. Sir, does any Senator recognize the Rebel governor of Arkansas? Does any Senator recognize the Rebel functionaries who held the offices of the State? Of course not. It follows, then, that the offices were empty. And this was the practical conclusion of Andrew Johnson, when he began to reorganize Tennessee, in an address as early as 18th March, 1862. Here are his words:--

“I find most, if not all, of the offices, both State and
Federal, _vacated_, either by actual abandonment or by the
action of the incumbents, in attempting to subordinate their
functions to a power in hostility to the fundamental law of the
State and subversive of her national allegiance.”[359]

If the offices were vacated, the machine of government could not work. And now the practical question is, how this machine shall be again put in motion. Obviously, not by any power within, but by some power without.

It may be said that the new State organization is authorized by the President’s proclamation of amnesty, and that the claimant’s case stands good according to the promises of this exceptional paper. A glance is enough to dispel this pretension. True it is that the President put forward a plan for reorganizing loyal State governments in the Rebel territory, and he proffered a guaranty to these communities against domestic violence and Rebel invasion; but he neither proposed nor promised any representation in Congress or in the Electoral College. Nor would such a proposition or promise by him have possessed the slightest validity; because, by the Constitution, “each House is to be the judge of the elections, returns, and qualifications of its own members.” This provision is inconsistent with any prerogative of the President over this question, even if such prerogative were not controlled by that other provision which reserves to Congress the power to admit new States into the Union.

The Proclamation declared, that, whenever, in any of the States of Arkansas, Texas, Louisiana, Mississippi, Tennessee, Alabama, Georgia, Florida, South Carolina, and North Carolina, a number of persons, not less than one tenth in number of the votes cast in such State at the Presidential election of 1860, each having taken the particular oath prescribed by the Proclamation, and not having since violated it, and being a qualified voter by the election law of the State existing immediately before its secession, and excluding all others, should _reëstablish_ a State government which should be republican, and in no wise contravening the Proclamation oath, it should be recognized as the true government of the State, which should receive thereunder the benefits of the constitutional provision that “the United States shall guaranty to every State in this Union a republican form of government.” Subsequently, in the same paper, the President declares “that whether members sent to Congress from any State shall be admitted to seats constitutionally rests exclusively with the respective Houses, and not to any extent with the Executive.” Nothing is said on the participation of such reorganized State in the approaching Presidential election; and the question seems left open for the judgment of Congress, to which it obviously belongs, to be settled by joint action.

It is plain, therefore, that the reorganization contemplated by the President was in nature provisional. It was not complete or permanent, but evidently looked to the action of the legislative power to determine representation, whether in Congress or in the Electoral College. Loyal governments might be established in the manner indicated for the conservation of local order, and these would be recognized and upheld provisionally by the military power. Considered from this point of view, and in the absence of Congressional action, the President’s plan of reconstruction was, to a certain extent, proper, if not necessary, and very little obnoxious to objections sometimes brought against it. A handful of persons keeping their loyalty might justly look to the military power for support against a hostile majority. Such a handful might be allowed to set up a local government for the management of local affairs, and to assist the National Government in the work of restoration. All this is natural. But the limitation is clear. Admitting it right to authorize the establishment of a local government for the benefit of a handful of loyal persons in a Rebel State, it does not by any means follow that such local government can be entitled to representation in the National Government as a loyal unit, on an equality with the loyal States of the Union. The two questions are entirely different, and the latter was wisely left untouched by the Proclamation.

Besides, the power of the President to institute this government is only as commander-in-chief of the army. It is therefore military in character. But what proceeds out of this power is, from the nature of the case, _provisional or temporary, until it has received the sanction of Congress_. To a certain extent, and from the necessity of the hour, military governments may be constituted by the President; but permanent civil governments, with----

MR. COLLAMER. To last beyond the war.

MR. SUMNER. As the Senator from Vermont well suggests, “to last beyond the war,” with right of representation in Congress and in the Electoral College, cannot be constituted by the President. Such a power would be open to infinite abuse, and in the hands of an ambitious President might be employed for selfish purposes. The national safety, in harmony with republican principles, requires that it should be exercised by Congress, which must take the lead in calling the new government into being.

Against these conclusions there can be no argument founded on principle. But it may be said that the admission of Senators from Virginia constitutes a precedent. This is a mistake. The Virginia case is a precedent for nothing, unless it be to make us more careful for the future. It arose at the beginning of the troubles, before the relations of the Rebel States had become fixed by pertinacious war, and was little considered at the time. But, beyond all, it had this peculiarity,--that a large section, geographically, of Virginia, had, in fact, declined to recognize the pretension of secession, and promptly constituted a loyal government without military intervention, so that practically it had never been part of the Rebel Government. The circumstances were so exceptional, that this case cannot be cited to determine our conduct toward a State which in all its parts, throughout its whole jurisdiction, accepted the pretension of secession, and maintained it by arms. Such a State is, beyond all question, a Rebel State, with no title to a place in Congress or in the Electoral College, until readmitted to its ancient rights by a vote in both Houses of Congress.

* * * * *

The readmission of a Rebel State to representation is not less important than its original admission into the Union. And when it is considered that what is done for one such State will be a precedent for all, its importance is multiplied by the number of Rebel States; and this again is augmented infinitely by the disturbed condition of affairs, and the supreme duty to take every precaution for the restoration of permanent tranquillity. It is not enough, if we comply with certain forms, or constitute a State in name only. Much more must be done, and all this must be placed under fixed and irreversible guaranties. Vain is victory on the battle-field, if these guaranties are not obtained. To make these possible, our armies are now engaged in the deadly shock. That the future at least may be secure, the present is given over to blood and slaughter, to graves and epitaphs. And here is the difference between your responsibilities and those of the soldier. The latter sees only the present; but you must see the future also. The soldier meets the enemy face to face; the statesman, by wise precautions, provides that the enemy, once conquered, shall never rise again. Vain is the work of the soldier, if not consummated and crowned by the wisdom of the statesman.

For years Slavery has been claiming guaranties in States and Territories, and these chambers have echoed to the hoarse, inhuman cry. At last another voice begins to prevail, ascending from basement to cupola, filling chamber and dome with diviner echo: it is the voice of Freedom claiming guaranties. In the absence of any constitutional prohibition of Slavery, it is evident that these guaranties can be obtained only under sanction of Congress in its legislative capacity. And here we are brought again to the question of representation; for as it is clear that representation cannot be conceded, until the guaranties for Freedom have been secured, so it follows, representation can be obtained only under the sanction of Congress in its legislative capacity.

That Congress in its legislative capacity must determine this question is sustained by the necessity of the case, by reason, by authority, and by the President’s Proclamation.

1. I have already shown that guaranties for Freedom are _a condition precedent_ to representation; so that, by the necessity of the case, the latter must be determined by the joint action of both Houses of Congress. Such is one form in which this necessity appears. But there is another.

Congress must have jurisdiction over every portion of the United States _where there is no other government_; but there can be no other government in the Rebel States; so that the words of Chief Justice Marshall are as applicable to a State without a loyal State government as they were originally to a Territory:--

“Perhaps the power of governing a Territory belonging to the
United States, which has not by becoming a State acquired _the
means of self-government_, may result necessarily from the
facts that _it is not within the jurisdiction of any particular
State_, AND IS WITHIN THE POWER AND JURISDICTION OF THE UNITED
STATES.”[360]

The three things here affirmed of a Territory may all be affirmed of a Rebel State.

_First._ It has not the means of self-government.

_Secondly._ It is not within the jurisdiction of any particular State.

_Thirdly._ It is within the power and jurisdiction of the United States.

From these again ensues the necessity of Congressional jurisdiction.

2. It would be unreasonable, if not absurd, for each Chamber to determine the question of representation for itself. Suppose, for instance, the Senate admit claimants from Arkansas, and the House reject them. Then we should witness the anomaly of a State admitted to one Chamber and excluded from the other. This would be _semi-admission_ into the Union. Part would be _in_, and part _out_. The Senators and Representatives of the same State would be compelled to separate, as, in Grecian mythology, one of the memorable twins, Castor and Pollux, was translated to Olympus, and the other was left upon earth. The Constitution does not contemplate the repetition of any such fable. Arkansas must stay away, until she can be received in _both_ Houses, and be recognized as a unit, not as a fraction; but no power short of Congress can assure this equal reception in both Houses.

3. Authority is in harmony with reason. The question seems to have been anticipated by the opinion of the Supreme Court of the United States, as pronounced by Chief Justice Taney in the case of _Luther_ v. _Borden_. Here are the words:--

“The fourth section of the fourth article of the Constitution
of the United States provides that the United States shall
guaranty to every State in the Union a republican form of
government, and shall protect each of them against invasion,
and, on the application of the Legislature, or of the Executive
(when the Legislature cannot be convened), against domestic
violence.

“Under this article of the Constitution, it rests with Congress
to decide what government is the established one in a State.
For, as the United States guaranty to each State a republican
government, Congress must necessarily decide what government is
established in the State, before it can determine whether it is
republican or not. And when the Senators and Representatives
of a State are admitted into the councils of the Union, the
authority of the government under which they are appointed, as
well as its republican character, is recognized by the proper
constitutional authority. And its decision is binding on every
other department of the government, and could not be questioned
in a judicial tribunal.”[361]

According to these positive words, “it rests with Congress to decide what government is the established one in a State.” But Congress can decide only through joint action.

4. The Constitution, also, by positive text, seems to place the question beyond doubt. There are express words, as we have already seen, declaring that “the United States shall guaranty to every State in the Union a republican form of government.” If these words stood alone, the case would be clear; but it becomes clearer still, when we revert to the other clause, by which it is provided that “the Congress shall have power to make all laws which shall be necessary and proper for carrying into execution all powers vested by this Constitution in the Government of the United States.” Now, since the guaranty is vested in the Government of the United States, it follows that Congress has the power for carrying it into execution. In Arkansas a republican government has been overthrown by rebellion. Congress must see that such government is restored; and to this end it has all needful power. Congress, and not the President, must decide when the restoration has taken place.

5. There is also the President’s Proclamation, which, by its very terms, necessarily implies the action of Congress. We have, first, the positive declaration that “whether members sent to Congress from any State shall be admitted to seats constitutionally rests exclusively with the respective Houses, and not to any extent with the Executive.” But the language of the Proclamation and of the accompanying message plainly assumes that the Rebel States have lost their original character as States of the Union. Thus in one place the President says that “the loyal State governments of several States have for a long time been _subverted_.” But if subverted, they no longer exist. In another place he proposes to “_reinaugurate_ loyal State governments.” But a proposition to _reinaugurate_ implies a new start. In another place he proposes to “_reëstablish_ a State government which shall be republican.” But we do not _reëstablish_ a government continuing to exist. In another place he proposes to “_set up_” a State government in the mode prescribed. But whatever requires to be set up is evidently down. In another place he considers how to guaranty and protect “a _revived_ State government.” But we revive only what is dead, or, at least, faint. There is still another place, where the President evidently looks to the possibility of a change of name, boundary, subdivisions, constitution, and general code of laws in the restored State. These are his identical words: “And it is suggested _as not improper_, that, in _constructing_ a loyal State government in any State, _the name of the State_, _the boundary_, the subdivisions, the constitution, and the general code of laws, as before the Rebellion, be maintained.” Thus the President does not insist that even the name and boundary of a State shall be preserved. He contents himself with suggesting that it will not be “improper” to preserve them “in _constructing_ a loyal State government.” Of course this suggestion of what is not improper implies necessarily that in his opinion even these great changes are within the discretion of the revived community.

I have called especial attention to the language of the President, because it constantly assumes, in a succession of phrases, that the Rebel States are in an abnormal condition, from which they are to be recovered or revived; and since such recovery or revival can be consummated only by action of Congress, it is reasonable to infer that such was his expectation. At all events, the Proclamation, by repeated assumptions with regard to the Rebel States, testifies to the necessity of Congressional action.

We have already seen that Andrew Johnson declared the State of Tennessee “vacated” of all local government which we are bound to respect; and this language obviously harmonizes with that of the President. But Arkansas was in a similar situation.

Such are some of the arguments for the power of Congress. Others might be adduced; but I have said enough. The necessity of the case, reason, the authority of the Supreme Court, the Constitution, and the President’s Proclamation, each and all, tend to the same conclusion, even without resorting to those war powers which are all within the reach of Congress. Yet if we glance at the latter, we find the power of Congress declared beyond question. There is nothing the President may do as commander-in-chief which Congress may not direct and govern, according to the authoritative words of Chancellor Kent:--

“Though the Constitution vests the executive power in the
President, and declares him to be commander-in-chief of
the army and navy of the United States, _these powers must
necessarily be subordinate to the legislative power in
Congress_.”[362]

And these powers, vast as they are, when called into activity by the exigency of war or rebellion, become as constitutional as if specified precisely in a written text.

* * * * *

Mr. President, there is a saying of Antiquity applicable to this question: _Make haste slowly_. Do not fail to make haste; but let your haste be governed by wisdom and prudence. In making haste, do not sacrifice all safeguards for the future. In haste to welcome Senators from Rebel States, do not forget everything else: do not forget the principles of republican institutions, offended by the rule of a minority; do not forget the principles of justice among the States, shocked by admission of the fraction of a Rebel State to equality of power with loyal States; do not forget the disturbed condition of the Rebel States, rendering the civil authorities subordinate to the military; do not forget the necessity of a connecting link of legality between the old and the new; do not forget that commercial intercourse must be restored, and every ban of proclamation or statute removed, before representation can be allowed; and, still further, do not forget that the Rebel States, by their own acts, sustained by bloody war, have voluntarily placed themselves outside the pale of political association, until Congress shall recognize them again entitled to their original equality; but, above all, do not forget that there can be no recognition of a Rebel State, until its permanent tranquillity is assured by irreversible guaranties which no local power can disturb. Keep these things in mind, and then make haste.

Of course, when within the confines of a State the Rebellion is triumphantly subdued, and the great body of the people manifest an unmistakable loyalty,--when local elections are held according to ordinary municipal forms,--when laws, and not arms, prevail,--and when a government, republican in fact as in name, making Slavery forever impossible, under any form or pretence, is permanently established,--then will Congress, by proper legislative action, rejoice to welcome the newly constituted State to its equal share in the National Government. But such welcome must not be precipitate. It can be offered only after most careful inquiry into the actual condition of things, and the assured conviction that the Rebel State has been newly constituted in fact as in name. And this caution is needed, not only for the good of the Union, but for the good of the State itself, which must be saved from premature responsibilities beyond the measure of its present powers.

Sir, it is much to be a State in full fellowship and equality with other States represented in these two Chambers, with a voice in the election of President and Vice-President, and with a star on the national flag. To be admitted into such prerogatives and privileges, a State must be “above suspicion,” and it must be able to use well all the great powers belonging to the State. But if a State is not yet “above suspicion,” and is not strong enough to stand alone, even against domestic disturbers, it cannot expect immediate recognition. It must wait yet a little longer, until, restored at last in character and in strength, it can do all the duties of a State, and with master-hand grasp that Ulyssean bow which pretenders strive in vain to bend.