Chapter XV: Part II: , 2 Sess. 38th Cong., p. 555 (6)

A previous chapter, in relating the military events which succeeded the disaster at Chickamauga, noticed a suggestion of the defeated Federal commander as well as Mr. Lincoln’s reply relative to the publication at that time of a declaration of amnesty to those in arms against the Government.[309] The double victory of Mission Ridge and Lookout Mountain, following the removal of Rosecrans, confirmed the President in his purpose of offering a general pardon to those who would lay down their arms and return to their obedience to the laws. The Proclamation of December 8, 1863, followed promptly and brought the subject of reconstruction before the Thirty-eighth Congress at its first session. The preceding pages have alluded to the universal favor with which that announcement was received. Though opposition to Executive measures was hushed for the time, it appears only to have gathered strength in this brief interval of silence. One short week introduced into the House of Representatives a resolution the subsequent progress of which brought the dominant party in Congress to the support of a measure hostile to that submitted by the President. Its interesting history may be collected from the pages of the _Congressional Globe_.

On December 15, from the Committee of Ways and Means, Thaddeus Stevens reported among other resolutions one to refer so much of the President’s message as was contained in the Proclamation, and as related to the condition and treatment of rebellious States, to a special committee of nine to be appointed by the Speaker. Henry Winter Davis inquired whether Mr. Stevens would accept for that resolution an amendment pointing more directly to the purpose in view. This substitute read as follows:

That so much of the President’s message as relates to the duty of
the United States to guarantee a republican form of government to
the States in which the governments recognized by the United States
have been abrogated or overthrown, be referred to a select committee
of nine, to be named by the Speaker, which shall report the bills
necessary and proper for carrying into execution the foregoing
guaranty.[310]

Stevens offering no objection, Representative Davis remarked that the language of the resolution was general, and, he believed, would cover the whole war; the committee, he supposed, intended to point to what, in the very inaccurate phraseology of the day, was known as the question of reconstruction; but believing there had been no destruction, he carefully avoided the use of that term.

The Government of the United States, continued Mr. Davis, was engaged in two operations: the suppression of armed resistance to the supreme authority of the nation and a very delicate, and perhaps as high a duty—to see, when armed resistance should be overcome, that governments republican in form should be restored in all those States. His substitute directed the investigations of the committee to that one point. It was not intended as a peremptory instruction to the committee to report any particular measure, but to take such action as their wisdom should recommend.

Democratic feeling on this subject appears in an inquiry by Representative Brooks, of New York, as to whether republican governments had not been abrogated and overturned north as well as south of the Potomac since the revolution began.[311]

The amendment of Mr. Davis prevailed, and of the special committee appointed he was made chairman. On January 18, 1864, he asked unanimous consent to report a bill to guarantee certain States a republican form of government. Objection having been made, he moved a suspension of the rules; but failing to receive the necessary two thirds vote his motion was lost. On February 15 succeeding, when he brought the measure before the House again and requested a postponement of its consideration for two weeks, it encountered Democratic opposition. The bill was then read a first and second time, ordered to be printed, and returned to the committee.

On March 22 the bill came before the House on the question of ordering it to be engrossed and read a third time. In its support Mr. Davis made an able address in which he analyzed the plan proposed by the Executive and emphasized its deficiencies. He said:

The bill which I am directed by the Committee on the Rebellious
States to report is one which provides for the restoration of civil
government in States whose governments have been overthrown. It
prescribes such conditions as will secure not merely civil
government to the people of the rebellious States, but will also
secure to the people of the United States permanent peace after the
suppression of the rebellion.

The bill challenges the support of all who consider slavery the
cause of the rebellion, and that in it the embers of rebellion will
always smoulder; of those who think that freedom and permanent peace
are inseparable, and who are determined, so far as their
constitutional authority will allow them, to secure these fruits by
adequate legislation.

... It is entitled to the support of all gentlemen upon this side of
the House, whatever their views may be of the nature of the
rebellion; and the relation in which it has placed the people and
States in rebellion toward the United States, not less of those who
think that the rebellion has placed the citizens of the rebel States
beyond the protection of the Constitution, and that Congress,
therefore, has supreme power over them as conquered enemies, than of
that other class who think that they have not ceased to be citizens
and States of the United States, though incapable of exercising
political privileges under the Constitution, but that Congress is
charged with a high political power by the Constitution to guarantee
republican governments in the States, and that this is the proper
time and the proper mode of exercising it. It is also entitled to
the favorable consideration of gentlemen upon the other side of the
House, who honestly and deliberately express their judgment that
slavery is dead. To them it puts the question whether it is not
advisable to bury it out of our sight, that its ghost may no longer
stalk abroad to frighten us from our propriety.

It does not address itself to that class of gentlemen upon the other
side of the House, if there be any, nor to that class of the people
of the country who look for political alliance to the men who head
the rebellion in the South....

It purports, sir, not to exercise a revolutionary authority, but to
be an execution of the Constitution of the United States, of the
fourth section of the fourth article of that Constitution, which not
merely confers the power upon Congress, but imposes upon Congress
the duty of guaranteeing to every State in this Union a republican
form of government. That clause vests in the Congress of the United
States a plenary, supreme, unlimited political jurisdiction,
paramount over courts, subject only to the judgment of the people of
the United States, embracing within its scope every legislative
measure necessary and proper to make it effectual; and what is
necessary and proper the Constitution refers, in the first place, to
our judgment, subject to no revision but that of the people. It
recognizes no other tribunal. It recognizes the judgment of no
court. It refers to no authority except the judgment and will of the
majority of Congress, and of the people on that judgment, if any
appeal from it.

[Secession he described as] the act of the people of the States,
carrying with it all the consequences of such an act. And therefore
it must be either a legal revolution which makes them independent,
and makes of the United States a foreign country, or it is a
usurpation against the authority of the United States, the erection
of governments which do not recognize the Constitution of the United
States, which the Constitution does not recognize, and, therefore,
not republican governments of the States in rebellion. The latter is
the view which all parties take of it. I do not understand that any
gentleman on the other side of the House says that any rebel
government which does not recognize the Constitution of the United
States, and which is not recognized by Congress, is a State
government within the meaning of the Constitution. Still less can it
be said that there is a State government, republican or
un-republican, in the State of Tennessee, where there is no
government of any kind, no civil authority, no organized form of
administration except that represented by the flag of the United
States, obeying the will, and under the orders of the military
officer in command. It is the language of the President of the
United States in every proclamation, of Congress in every law on the
statute-book, of both Houses in their forms of proceeding, and of
the Courts of the United States in their administration of the law.
It is the result of every principle of law, of every suggestion of
political philosophy, that there can be no republican government
within the limits of the United States that does not recognize, but
does repudiate, the Constitution, and which the President and the
Congress of the United States do not, on their part, recognize.
Those that are here represented are the only governments existing
within the limits of the United States. Those that are not here
represented are not governments of the States, republican under the
Constitution. And if they be not, then they are military
usurpations, inaugurated as the permanent governments of the States,
contrary to the supreme law of the land, arrayed in arms against the
Government of the United States; and it is the duty, the first and
highest duty, of the Government to suppress and expel them. Congress
must either expel, or recognize and support them. If it do not
guarantee them, it is bound to expel them; and they who are not
ready to suppress them are bound to recognize them.

“In the famous Rhode Island cases,” he continued, the Supreme Court of the United States by the mouth of Chief Justice Taney, declared “that a military government, established as the permanent government of a State, is not a republican government in the meaning of the Constitution, and that it is the duty of Congress to suppress it. That duty Congress is now executing by its armies. He [Justice Taney] further said in that case that it is the exclusive prerogative of Congress—of Congress, and not of the President—to determine what is and what is not the established government of the State; and, to come to that conclusion, it must judge of what is and what is not a republican government, and its judgment is conclusive on the Supreme Court, which cannot judge of the fact for itself, but accepts the fact declared by the political department of the Government.”

Mr. Davis resumed:

We are now engaged in suppressing a military usurpation of the
authority of the State government. When that shall have been
accomplished, there will be no form of State authority in existence
which Congress can recognize. Our success will be the overthrow of
all semblance of government in the rebel States. The Government of
the United States is then, in fact, the _only_ Government existing
in those States, and it is there charged to guarantee them
republican governments.

... The duty of guaranteeing carries with it the right to pass all
laws necessary and proper to guaranty.... It places in the hands of
Congress the right to say what is and what is not, with all the
light of experience and all the lessons of the past, inconsistent,
in its judgment, with the permanent continuance of republican
government; and if, in its judgment, any form of policy is radically
and inherently inconsistent with the permanent and enduring peace of
the country, with the permanent supremacy of republican government,
and it have the manliness to say so, there is no power, judicial or
executive, in the United States, that can even question this
judgment but the =People=; and they can do it only by sending other
representatives here to undo our work. The very language of the
Constitution and the necessary logic of the case involve that
consequence. The denial of the right of secession means that all the
territory of the United States shall remain under the jurisdiction
of the Constitution. If there can be no State government which does
not recognize the Constitution, and which the authorities of the
United States do not recognize, then there are these alternatives,
and these only: the rebel States must be governed by Congress till
they submit and form a State government under the Constitution; or
Congress must recognize State governments which do not recognize
either Congress or the Constitution of the United States; or there
must be an entire absence of _all_ government in the rebel States;
and that is anarchy. To recognize a government which does not
recognize the Constitution is absurd, for a government is not a
constitution; and the recognition of a State government means the
acknowledgment of men as governors, and legislators, and judges,
actually invested with power to make laws, to judge of crimes, to
convict the citizens of other States, to demand the surrender of
fugitives from justice, to arm and command the militia, to require
the United States to repress all opposition to its authority, and to
protect it from invasion—against our own armies; whose Senators and
Representatives are _entitled_ to seats in Congress, and whose
electoral votes must be counted in the election of the President of
a Government which they disown and defy!! To accept the alternative
of anarchy as the constitutional condition of a State is to assert
the failure of the Constitution and the end of republican
government. Until, therefore, Congress recognize a State government,
organized under its auspices, there is no government in the rebel
States except the authority of Congress. In the absence of all State
government, the duty is imposed on Congress ... to administer civil
government until the people shall, under its guidance, submit to the
Constitution of the United States, and, under the laws which it
shall impose, and on the conditions Congress may require, reorganize
a republican government for themselves, and Congress shall recognize
that government.

... Is it yet time to reorganize the State governments? or is there
not an intermediate period in which sound legislative wisdom
requires that the authority of Congress shall take possession of and
temporarily control the States now in rebellion until peace shall be
restored and republican government can be established deliberately,
undisturbed by the sound or fear of arms, and under the guidance of
law?

After referring to the condition of the rebellion, Mr. Davis declared: “We have occupied a vast area wrested from its power, but to this day we have not expelled the rebels from _any State_ they ever held.” In no portion of those States could military power “be withdrawn for a moment without instant insurrection”; and he added, “There is no rebel State held now by the United States enough of whose population adheres to the Union to be intrusted with the government of the State. One tenth cannot control nine tenths. Five tenths are nowhere willing to undertake the control of the other five tenths.” In West Virginia, he said, such a condition existed and had been recognized. “In no other State—the only one in respect to which a doubt can exist is Tennessee—in no other State is there such a portion of territory held, or any such portion of population under our control, or any such portion of it which is in our control inspired by such sentiments toward the Government of the United States, so free from fear of the returning wave of rebel invasion, so assured of the continued supremacy of the United States, that we ought to be willing to trust them with this power. You can get a handful of men in the several States who would be glad to take the offices if protected by the troops of the United States, but you have nowhere a body of independent, loyal partisans of the United States, ready to meet the rebels in arms, ready to die for the Republic, who claim the Constitution as their birthright, count all other privileges light in comparison, and resolve at every hazard to maintain it.”

Concerning the loyal masses of the South, of whom so much was heard at the beginning of the war, he remarked:

It is the most astounding spectacle in history that in the Southern
States, with more than half of the population opposed to it, a great
revolution was effected against their wishes and against their
votes, without a battle, a riot, or a protest in behalf of the
beneficent Government of their fathers—a revolution whose opponents
hastened to lead it, without a martyr to the cause they deserted
except the nameless heroes of the mountains of Tennessee, or a
confessor of the faith they had avowed save the illustrious Petigru
of South Carolina!

... There is no fact that any one has stated on authority at all
reliable that any respectable proportion of the people of the
Southern States now in rebellion are willing to accept any terms
that even our opponents on the other side of the House are willing
to offer them.

* * * * *

What, then, are we to do with the population in these States? To
make “confusion worse confounded” by erecting by the side of the
hostile State government a new State government on the shifting
sands of that whirlpool, to be supported by us while we are there
and to turn its power against us when we are driven out? That would
be to erect a new throne where

“Chaos umpire sits,
And by decision more embroils the fray
By which he reigns.”

In my judgment, it is not safe to confide the vast authority of
State governments to the doubtful loyalty of the rebel States until
armed rebellion shall have been trampled into the dust, until every
armed rebel shall have vanished from the State, until there shall be
in the South no hope of independence and no fear of subjection,
until the United States is bearded by no military power and the laws
can be executed by courts and sheriffs without the ever-present
menace of military authority. Until we have reached that point, this
bill proposes that the President shall appoint a civil governor to
administer the government under the laws of the United States in
force in the States respectively at the outbreak of the rebellion,
subject, of course, to the necessities of military occupation.

When military opposition shall have been suppressed, continued Mr. Davis, then call upon the people to reorganize their governments in their own way, “subject to the conditions that we think essential to our permanent peace, and to prevent the revival hereafter of the rebellion....”

To establish republican forms of government that the people of the United States would agree to, three modes were indicated: “One is to remove the cause of the war by an alteration of the Constitution of the United States prohibiting slavery everywhere within its limits. That, sir, goes to the root of the matter, and should consecrate the nation’s triumph. But there are thirty-four States—three fourths of them would be twenty-six. I believe there are twenty-five States represented in this Congress, so that we, on that basis, cannot change the Constitution. It is, therefore, a condition precedent in that view of the case, that more States shall have governments organized within them.”

He next noticed the calculation based on three fourths of the States then represented in Congress, a construction held by Thaddeus Stevens, but even that view was not without its difficulties. The States of New Jersey, Kentucky, Maryland and Delaware were named as doubtful. If such an amendment were adopted it still left “the whole field of the civil administration of the States prior to the recognition of State governments, all laws necessary to the ascertainment of the will of the people, and all restrictions on the return to power of the leaders of the rebellion, wholly unprovided for.” The constitutional amendment met his hearty approval, but it was not a complete remedy.

Relative to the Administration policy, he observed:

The next plan is that inaugurated by the President of the United
States in the proclamation of the 8th of December, called the
amnesty proclamation. That proposes no guardianship of the United
States over the reorganization of the governments, no law to
prescribe who shall vote, no civil functionaries to see that the law
is faithfully executed, no supervising authority to control and
judge of the election. But if, in any manner, by the toleration of
martial law, lately proclaimed the fundamental law, under the
dictation of any military authority, or under the prescriptions of a
provost marshal, something in the form of a government shall be
presented, represented to rest on the votes of one tenth of the
population, the President will recognize that, provided it does not
_contravene_ the proclamation of freedom and the laws of Congress;
and, to secure that, an oath is exacted.

Now you will observe that there is no guarantee of law to watch over
the organization of that government. It may combine all the
population of a State; it may combine one tenth only; or ten
governments may come competing for recognition at the door of the
Executive mansion. The executive authority is pledged; Congress is
not pledged. It may be recognized by the military power and may not
be recognized by the civil power, so that it would have a doubtful
existence, half civil and half military, neither a temporary
government by law of Congress nor a State government, something as
unknown to the Constitution as the rebel government that refuses to
recognize it.

In examining the operation of the Executive proclamation on the existence of slavery, Mr. Davis asked, how does it accomplish the reorganization of the government on the basis of universal freedom? and added:

The only prescription is that the government shall not _contravene_
the provisions of that proclamation. Sir, if that proclamation be
valid, then we are relieved from all trouble on that score; but if
that proclamation be not valid, then the oath to support it is
without legal sanction, for the President can ask no man to bind
himself by an oath to support an unfounded proclamation or an
unconstitutional law even for a moment, still less till it shall
have been declared void by the Supreme Court of the United
States.... If, therefore, he shall have taken the oath, he can, in
good conscience as well as in good law, disregard it the next
moment; so that, in point of fact, the law leaves us where the
proclamation does; it adds nothing to its legality, nothing to its
force.

But what is the proclamation which the new governments must not
contravene? That certain negroes shall be free, and that certain
other negroes shall remain slaves. The proclamation therefore
recognizes the existence of slavery. It does just exactly what all
the constitutions of the rebel States prior to the rebellion did;
... and, therefore, the old constitutions might be restored
to-morrow without _contravening_ the proclamation of freedom. Those
constitutions do not say that the President shall not have the
right, in the exercise of his military authority, to emancipate
slaves within the States.... They do not even establish slavery....
They merely recognize it just as the proclamation recognizes its
existence in parts of Virginia and in parts of Louisiana. So that
the one tenth of the population at whose hands the President
proposes to accept and guarantee a State government, can elect
officers under the old constitution of their State in exactly the
same terms and with exactly the same powers existing at the time of
the rebellion, and may, under his proclamation, demand a
recognition.... So soon as the State government is recognized, the
operation of the proclamation becomes merely a judicial question.
The right of a negro to his freedom is a legal right divesting a
right of property, and is to be enforced in the courts; and then the
question is what the courts will say about the proclamation. Is it
valid or invalid? Does it of itself confer a legal right to freedom
on negroes who were slaves? Is it within the authority of the
Executive?... How local State courts, created by the Southern
people, will decide such a question _no one_ can doubt.... It is,
therefore, under the scheme of the President, merely a judicial
question, to be adjudged by judicial rules, and to be determined by
the courts.... I do not desire to argue the legality of the
proclamation of freedom. I think it safer to _make it law_.... Under
the act of 1862 the President is authorized to use the negro
population for the suppression of the rebellion; while the rebellion
lasts, his proclamation in law exempts the slave from the duty of
obeying his master, but after the rebellion is extinguished, the
master’s rights are in his own hands, subject only to the opinion of
the courts on the legal effect of the proclamation, without a single
precedent to sanction it, and opposed by the solemn assertions of
our Government against the principle worked to authorize it.
Gentlemen are less prudent or less in earnest than I am if they will
risk the great issues involved in this question on such authorities
before the courts of justice.

By the bill we propose to preclude the judicial question by the
solution of a political question. How so? By the paramount power of
Congress to reorganize governments in those States, to impose such
conditions as it thinks necessary to secure the permanence of
republican government, to refuse to recognize any governments there
which do not prohibit slavery forever. Ay, gentlemen take the
responsibility to say, in the face of those who clamor for speedy
recognition of governments tolerating slavery, that the safety of
the people of the United States is the supreme law; that their will
is the supreme rule of law, and that we are authorized to pronounce
their will on this subject—take the responsibility to say that we
will revise the judgments of our ancestors; that we have experience
written in blood which they had not; that we find now, what they
darkly doubted, that slavery is really, radically inconsistent with
the permanence of republican governments; and that, being charged by
the supreme law of the land, on our conscience and judgment, to
guarantee, that is, to continue, maintain, and enforce, if it exist,
to institute and restore when overthrown, republican governments
throughout the broad limits of the republic, we will weed out every
element of their policy which we think incompatible with its
permanence and endurance.... It [the bill] adds to the authority of
the proclamation the sanction of Congress....

Gentlemen must deny the jurisdiction of Congress over the States
where there are no recognized governments, or place a bound or limit
to the discretion of Congress....

And if the sentiments of State pride and State rights be touched by
the assertion of this wide discretion, which men may deny but cannot
expunge, I would admonish those who dislike it that it is a
jurisdiction which nothing but the dereliction of the States can
wake into activity, and they who wish to exclude it from their
limits have only not to give occasion for its exercise by renouncing
obedience to the Constitution and pulling down their own State
governments. But now the jurisdiction has attached in all the rebel
States. Until Congress has assented, there is no State government in
any rebel State, and none will be recognized except such as
recognize the power of the United States; so that we come down to
this: whether we—and when I say we, I mean we upon this side of the
House, who are firmly, thoroughly, and honestly convinced that the
time has come not merely to strike the arms from the hands of the
rebels, but to strike the fetters from the arms of the slaves, and
remove that domineering and cohesive power without which we could
have had no rebellion, and which now is its animating spirit, and
which will die when it dies—....

And if it be time [for Congress to assert its authority] then all I
ask in conclusion is, that gentlemen will go and read that great
argument of Daniel Webster in the Rhode Island case ... where he met
this semi-revolutionary attempt to count heads and call that the
people, and maintained—and so the Supreme Court judged when it
refused to take jurisdiction of the question—that the great
political law of America is that every change of government shall be
conducted under the supervising authority of some existing
legislative body throwing the protection of law around the polls,
defining the rights of voters, protecting them in the exercise of
the elective franchise, guarding against fraud, repelling violence,
and appointing arbiters to pronounce the result and declare the
persons chosen by the people.... He [Webster] maintained it to be
the great fundamental principle of the American government that
legislation shall guide every political change, and that it assumes
that somewhere within the United States there is always a permanent,
organized legal authority which shall guide the tottering footsteps
of those who seek to restore governments which are disorganized and
broken down.

The bill, he asserted in conclusion, was an effort to apply this great principle of American law.[312]

Representative Scofield, of Pennsylvania, said, April 29, 1864, when the subject was again before the House, that the continuity of constitutional government in the seceded States had been broken, the regular transmission of political power interrupted. How, he inquired, should the severed thread be joined? By the unconstrained action of the people themselves, say the gentlemen in opposition. He indorsed that sentiment, and added that when the people of those States should ground the arms of their rebellion, and uncoerced take upon themselves the easy yoke and light burden of the ever gentle Federal Government it would mark a glad day in those uncheerful years of our history.

For those States from which hostile armies had been excluded Congress should legislate or leave the people in the rough hand of military law. The bill designed to discharge that duty was generally acceptable to any one who conceded the propriety of Congressional action, its three prohibitions being probably the only debatable points,—that is the assumption of Confederate debts, the prevention of Confederate officers from voting and the prohibition of involuntary servitude.

To assume the rebel debt, he asserted, would be to offer a high bounty for future rebellions; if rebel officers were permitted to vote, upon what principle of comparative justice could the privilege be denied to ordinary criminals? These officers were guilty of the highest crime against government. As to the third prohibition he had more to say.

“If God shall give us victory,” continued Mr. Scofield, “and enable us to subdue or scatter the army of the enemy, is a voluntary reunion of the States possible? I say _voluntary_ because I suppose nobody desires a Union always to be maintained by force; and I use the word _reunion_ because nobody proposes a form of government different from our present system of State brotherhood. I am not now speaking of the several plans of reconstruction, for they are designed only as temporary devices, looking to a reunion.... My question looks beyond the battle and beyond reconstruction. When the victory is won, if won it shall be, and the transition over, will the insurgent States _willingly stay_ where they have been _forcibly put_ in their old places in the old Union?... Our own liberties could not survive their permanent subjugation. When the Federal Government becomes strong enough to hold eleven States as colonies, it will be too strong, I fear, for the people’s liberties.” All motives for those States ever to depart should be removed.

Similarity of ideas he characterized as the bond of nationality, and named Ireland, Hungary and Poland to show the opposite. In the United States slavery was the one subject of estrangement. Could North and South be brought to think alike on that subject? The theory that each side could hold its own opinions on slavery and no evil consequences follow was somewhat to blame. That theory failed in practice and for that failure each side blamed the other.

The fathers, he said, lived under that theory, that slavery and freedom could coexist, but they expected that the institution would soon become extinct. Hence they only tolerated it. Slavery was to recede slowly and freedom to follow steadily. Upon _that_ basis they got along very well and so could their descendants. Instead of consenting to go, slavery demanded expansion and perpetuity. This was reversing the compromise of the fathers; this change had to be discussed, the slave power took umbrage and secession followed. If one sentiment must prevail, then slavery, which could not stand discussion, must yield if there was to be a reunion. To live in peace together the North must embrace slavery or the South must abandon it.

To adopt slavery would mean the adoption by 20,000,000 people of sentiments favorable thereto, whereas the institution never had any friends in the North. Those in that section so considered were only its apologists. If, three years ago, slavery had no real friends in the North, who would advocate it when it had attempted to destroy the most beneficent of governments? To reconcile the free States would necessitate a change of opinion—to adopt freedom as the dominant idea would require simply a change of _investment_ in the sections. For the present extinguish the conflagration, for the future remove the inflammable material from which it was kindled. For the present seize the mad revolutionists of the South, for the future destroy the virus that poisoned their blood.

All who favored emancipation he favored as co-workers for a voluntary and peaceful reunion of the States; slavery was presented merely as an element of discord and disunion and as such he asked for its removal.[313]

Mr. Williams said that the war was inaugurated on the theory that the States were _in_, whereas the great fact of war was a proclamation that they were _out_. Northern Democrats were willing to accept the fact that they were _out, without war_—to adopt the principle of the _laissez nous faire_ of the rebel authorities and to treat with them upon the idea of a _reconstruction_; peaceful secession with _reconstruction by treaty_. The severance of the States was complete, though the hope of recovery remained. By releasing the crews of their privateers, by blockading their ports the Federal authorities had recognized them as a _de facto_ government; Federal legislation had put them under the ban as alien enemies. In the minds of the framers of the Constitution the theory of an indissoluble Union referred to _the right_, to its organic law. They did not mean that it could not be ruptured by violence. If the governments of the States were dissolved “they must, of course, be reconstructed under the auspices of the conquering power, and that not by the Executive, but by the Legislature of the Union, whose sword he bears, and which only, consistently with the genius of our institutions, the past practice of the Government, and the letter as well as spirit of the Constitution, can venture to determine what use shall be made of the territories conquered by it, and when and upon what terms they shall be readmitted into full communion as members of this Government.... To permit any executive officer to declare its law, and set it in motion, and place it under the control of a minority—a mere tithe of its citizens—with power to send delegates to Congress with representation unimpaired and unaffected—even though he should reenact a part of its abrogated Constitution—would be, as I think, a monstrous anomaly, a violation of fundamental principles, and a precedent fraught with great danger to republican liberty.... To come back into the Union, it must either be born anew or come back with all its rights unimpaired, except those material ones which have been destroyed in the progress of the war. There is, I think, no middle ground, as there is no power either here or elsewhere to prescribe terms which shall abridge the rights or privileges of a State that has _not_ been out of the Union, or returns to it in virtue of its original title.” The rebellious States, he declared, “are in the Union for correction, not for _heirship_.” In point of fact they were out.

Replying to an observation of Fernando Wood, Mr. Williams said: “We are in favor, at all events, of preserving all that is left of it [the Union], and intend, with the blessing of God, to win back the residue, and pass it through the fire until it shall come out purged of the malignant element that has unfitted it for freedom.

“... Say that they [the rebellious States] are in the Union as before, and all your sacrifices have been idle, and all the blood spilled by you has sunk into the earth in vain.”

The confiscation and distribution of the great baronial possessions of rebel leaders were in his judgment an essential element in any feasible plan of reconstruction. He deduced from passages in Bynkershoek and Barbeyrac that “everything belonging to the offending party is confiscated.... _Indemnity_, _security_, and _punishment_ are all, therefore, means of self-defense which may be legitimately used.”

Is the forfeiture, he asked, of the estates and property of traitors, whether they consist of lands or slaves, required for these purposes? “_Vae Victis_” is not the maxim of a humane conqueror. Though he would not exclude the idea of mercy, he was not clear as to “the wisdom of a proclamation of amnesty in advance as a measure of pacification, without limits as to time, and where submission after conquest, and when it is no longer a virtue but a necessity, is to be rewarded with the same impunity as a voluntary return to duty before that time.”

Speaking of the nature, cause and fury of the war, he continued: “Its suppression has become impossible without removing the cause of the strife, and disabling our enemy by liberating his slaves, and arming them against him.”

No reparation was adequate for the injury inflicted; for, said he, “there can be no punishment, except in the divestiture of the rights and the seizure of the estates of the guilty leaders. There is no security except in the distribution of the latter.” From these he would carve out inheritances for the widow and the helpless offspring of the Northern soldier.

For eighteen months, he observed in conclusion, the war was conducted upon the principle of inflicting as little injury as possible upon the enemy.[314]

The speech of Mr. Williams was marked by considerable fluency as well as great elegance of diction; it was the effort of a scholar, though not confined strictly to the question before the House. He introduced with directness and vigor the ideas of indemnity, security and punishment; these, it may be remarked, became important elements in determining the mode of reinstatement that finally emerged from the chaos of resolutions and plans submitted to Congress.

Representative Baldwin, of Michigan, believed the bill “to be an utter subversion of the Constitution”; even a latitudinarian construction of that instrument would not justify it. It embraced a plan that could be enforced by only the military arm. It was the precursor of the establishment of a despotism. That measure, as well as the President’s plan, was fraught with danger.

He lamented interference with the elective franchise and the denial of the privileges of the writ of _habeas corpus_. For eighteen months the war had been waged for the destruction of the South, not for the restoration of the Union. Did not wisdom, he asked, suggest that all plans of reconstruction which tended only to intensify hate and postpone the day of peace be abandoned? Speaking of the effect of Mr. Lincoln’s policy he observed: “That it was intended that the amnesty proclamation of last December would hasten the end of this strife, I do not believe. We are told that nearly every Southern paper published it, and it only nerved them to the performance of more earnest deeds.” The President’s plan as well as that of Congress, he believed, were designed to perpetuate the present dominant party by the vote of reconstructed States. A considerable portion of his remarks was devoted to criticism of the Administration.[315]

Mr. Thayer, of Pennsylvania, believed that the powers delegated by the people of the United States to the national Government were sufficient for the great work of reconstruction, and added: “That the time has come in which Congress, in the exercise of the great powers conferred upon it, should settle and authoritatively declare the terms and conditions upon which the people of the rebellious districts should be restored to their State privileges and resume their just relations to the national Government, does not admit of doubt.” People occupying territory wrested from the rebellion should be restored with the least possible delay to the privileges of representative government. “Congress alone can enact the laws which are to reconstruct the political societies in which the fundamental principle of loyalty to the national Government and obedience to its laws and respect for its authority have been obliterated by the violence of rebellion. The President of the United States cannot enact these laws, and it is in my opinion a reproach to Congress that by its inaction up to the present time it has rendered it necessary that the national Executive should be obliged by a sense of obligation to the public welfare to resort to temporary expedients for the preservation of public order and the assertion of national supremacy in those districts and States which the valor of our soldiers has redeemed from the insulting domination of the rebel army.”

Executive action, he asserted, was suggested by necessity. “What has been done in that respect by the President I believe to have been well done, wisely done, and patriotically done, and to have been demanded alike by the necessity of the case and for the welfare of the Republic.” The exclusive right over the subject, however, belonged to Congress, which should relieve the President of all responsibility therein.

Safeguards against the recurrence of similar outbreaks in the future should be required. He would support the measure before the House because of these safeguards or pledges. Unconditional and perpetual loyalty in the new governments in the rebellious States to that of the United States, extirpation and perpetual prohibition of slavery and compulsory repudiation of the rebel debt were the chief among these.

“The safety of the country,” said he, “its future repose, the continuance of the Union, and the firm establishment of our political system imperatively demand that in the reorganization of local governments in the rebel States the foundations of such governments must rest upon the principle of submission to the Constitution and laws of the United States.

“... It is also necessary to guard the elective franchise and the privilege of holding office in those States against the intrusion and treachery of all who have in any sense been leaders in the present rebellion. For this purpose prudence requires that all who have held office under the pretended rebel government should be excluded from these privileges.”

The seventh section of the bill he would like to see so modified as to declare that no debt of the pretended Confederate States, and no debt contracted by the State for the purpose of prosecuting the war against the United States or of giving aid to its enemies, should be recognized or paid by the State.

It was a singular doctrine, he remarked in conclusion, that those who had thrown off all restraints of the Constitution and who for years had waged war for the purpose of overthrowing it should be entitled to demand its protection while engaged in armed hostility to it.[316]

Mr. Yeaman did not believe Congress had a right to legislate away the laws and institutions of these States. The American people, he said, would come out of the contest with a better political education, an education having for its basis the idea that _they are a nation_, and he added, “a war to enforce the theory of secession will end in an increased consolidated nationality.” The theory expressed in the Virginia and Kentucky Resolutions was the fatal blow in our political history. His address was in the nature of an essay in political science and not altogether germane to the measure under consideration.[317]

“Pass a judicious enabling act,” urged Mr. Longyear, “with proper safeguards, of which the people may avail themselves to organize civil governments at the very earliest opportunity, and it will afford a rallying point for the Union sentiment remaining there, and tend to foster it and nourish it into a healthful and vigorous existence. It will prevent perplexing and complicated irregularities and diversities of action, and tend largely to harmony and strength in our future deliberations. No stronger illustration of the necessity and propriety of immediate action need be given than the case of Tennessee, Louisiana, and Arkansas.

“The President’s proclamation does not solve the difficulty. As a proclamation of amnesty, as a general outline or plan for organizing new State governments, as a prescription of safeguards and conditions precedent to such organization, it will ever stand as a bright and glorious page in the history of the present Administration. But it is incomplete for lack of constitutional power. That can be conferred by Congress alone, under the power to admit new States.

* * * * *

“If we succeed [in the war] we make no conquest of territory, because that is already ours. We simply succeed, in that respect, in bringing that which is our own again under our control.” Because of rebellion the constitutions and laws of those States had ceased to exist, and as slavery was established solely in State laws that also ceased to exist. The only object of a constitutional amendment was to prohibit its establishment forever. Freedom, he added, was being substituted for slavery. In respect to slavery and the slave power we were in the midst of a revolution. They proved themselves inimical to civil liberty, to the Constitution and to republican institutions.[318]

To the remark of Fernando Wood, of New York, that the South could not be subdued, Ignatius Donnelly replied, “We are doing it!” and he added, if the system of the President is deficient in the machinery that will ensure safety “it is our duty to supply that defect. The plan of the President, unsupported by any action on our part, hangs upon too many contingencies. It may be repealed by his successor; it may be resisted by Congress; it may be annulled by the Supreme Court. It rests the welfare of the nation upon the mind of one man; it rests the whole structure of social order upon the unstable foundation of individual oaths.” Upon this subject Mr. Donnelly observed that General Jefferson Thompson, C. S. A., noted in passing through those regions that men consulted their memorandum books to see what oath they had taken last. Thousands of rebel dead had been found on the battle field with oaths of allegiance, sworn to and subscribed, in their pockets. Mr. Donnelly favored the bill, and if any measure of greater security could be found he would support that. He desired, as soon as it could be attained, an amendment of the Constitution that would prohibit slavery.

“I am aware, Mr. Speaker,” he continued, “of the great claims which Mr. Lincoln has upon the people of the United States. I recognize that popularity which accompanies him, and which, considering the ordeal through which he has passed, is little less than miraculous. I recognize that unquestioning faith in his honesty and ability which pervades all classes, and the sincere affection with which almost the entire population regard him. We must not underrate him even in our praises. He is a great man. Great not after the old models of the world, but with a homely and original greatness. He will stand out to future ages in the history of these crowded and confused times with wonderful distinctness. He has carried a vast and discordant population safely and peacefully through the greatest of political revolutions with such consummate sagacity and skill that while he led he appeared to follow; while he innovated beyond all precedent he has been denounced as tardy; while he struck the shackles from the limbs of three million slaves he has been hailed as a conservative! If to adapt, persistently and continuously, just and righteous principles to all the perplexed windings and changes of human events, and to secure in the end the complete triumph of those principles, be statesmanship, then Abraham Lincoln is the first of statesmen.

“If the end of the war is to be a restoration _of the appearance_ of the old Government; a patching together of the broken shreds and fragments; a propping up of the fabric in such style that the next Administration may possibly get out from under it before it falls, then that proclamation may be found all-sufficient. But for all other purposes it will be utterly unavailing. It does not reach the heart of the distemper....

“We owe more than this to ourselves; we owe more than this to the South. We must regenerate the South.”[319]

This discriminating tribute to the character and genius of Mr. Lincoln was paid by no servile flatterer; it was not the eulogy of even a supporter of the Presidential plan of reconstruction; nor was it designed as a discharge of, or uttered in expectation of compelling, Executive favors, but appears rather to have been the spontaneous testimony of a keen interpreter of men and measures not less creditable to the insight of the speaker than to the subject of his remarks. Others, it is true, refrained from misrepresenting the President’s attitude and cheerfully ascribed to him patriotic and enlightened motives in his public conduct. Mr. Donnelly alone condensed into a paragraph a panegyric with which the judgment of posterity is in complete accord. This portion of his speech is quoted both to show that there were men in Congress who fully appreciated the greatness of the President, and that criticism of his measures was not in many instances suggested by feelings of personal hostility.

Very different were the remarks of Mr. Dennison, who declared that “The passage of this law will be the final gathering up of the reserved rights of States, and the last vestige of protection of the citizen under State constitutions will be taken away, and all power centralized in the General Government.” He opposed the bill for the additional reason that it was intended to legalize and perpetuate the unconstitutional acts of the President. “There does not exist on the earth a more despotic government than that of Abraham Lincoln. He is a despot in fact if not in name.”[320] These excerpts sufficiently indicate the character of his invective.

“I have offered a substitute to the bill of the committee,” said Thaddeus Stevens, “because that does not, in my judgment, meet the evil. It partially acknowledges the rebel States to have rights under the Constitution, which I deny, as war has abrogated them all. I do not inquire what rights we have under it, but they have none. The bill takes for granted that the President may partially interfere in their civil administration, not as conqueror but as President of the United States. It adopts in some measure the idea that less than a majority may regulate to some extent the affairs of a republic.”[321] The chief objection of Mr. Stevens, however, was that it removed the opportunity of confiscating the property of the disloyal.