Chapter XVI: Part II: , 2 Sess. 38th Cong., p. 555 (7)

Representative Wadsworth, of Kentucky, he said, agreed with him that the people of the South could plead none of the constitutional provisions in their defence. Whatever rights they possessed were those of belligerents engaged in war. “When we come to enforce the rights of conquest,” continued the Pennsylvania member, “we should be justified in insisting upon the _extreme rights_ of war, without yielding to the mitigations dictated by modern usage with regard to belligerents originally composed of foreign nations engaged in war which they deemed just.” Explaining former recommendations which in many quarters had called forth severe criticism, he said: “I thought that the women and children, the non-combatants, and those who were forced by the laws of their State into the armies, should be spared; and the property of the guilty, morally as well as politically guilty, only should be taken. And yet we hear a howl of horror from conservative gentlemen at the inhumanity of the proposition.” He still further explained his sentiments on this occasion. After stating that the people of the Confederate States were sovereign and acted through their representatives, he asserted that they had commenced and were continuing to wage an unjust war and therefore their private property was liable to confiscation. The right to take their property existed, but no one, he said, “advises the execution of the extreme right. But the right exists and ought to be enforced against the most guilty. To allow them to return with their estates untouched, on the theory that they have never gone out of the Union, seems to me rank injustice to loyal men.” Of those who denied that the Confederate States had gone out of the Union he inquired, “What are we making war upon them for? For seceding; for going out of the Union against law. The law forbids a man to rob or murder, and yet robbery and murder exist _de facto_ but not _de jure_.” Hence the Constitution does not allow the States to go out of the Union. He referred also in his speech to a resolution introduced by Mr. Schenck, of Ohio, which passed the House without a division and declared the Confederate States a public enemy, engaged in a public war.[322]

On the same day, May 2, Representative Strouse remarked that immediately after the disaster of Bull Run the House almost unanimously passed the Crittenden Resolutions, which declared that “This war is not waged in any spirit of oppression, or for any purpose of conquest or subjugation, or purpose of overthrowing or interfering with the rights or established institutions of these States.” This announcement, he asserted, brought volunteers, whereas now, 1864, county, State and Federal bounties combined could not induce men to enlist, and the cause of the apathy was that the war had been perverted from the purpose announced in the resolutions referred to. The entire speech had little reference to the bill of Mr. Davis, but seemed rather designed, by an attack on the Administration, to please his Democratic constituents.[323]

Mr. Cravens said that the dominant party did not distinguish between loyalty to the Administration and loyalty to the Government. The time for compromise had passed when the Republican party refused to accept the Crittenden Resolutions. That organization was in all essentials an abolition party. If there ever was a distinction it no longer existed. He cited a rather complete list of all the measures acted upon by Congress showing their concern for the negro; he charged neglect of the white soldier, his widow and orphans; quoted from the speech of Thaddeus Stevens on the admission of West Virginia, and named Representative Julian as uttering sentiments little behind the Pennsylvania member in boldness and exhibiting no more reverence for the Constitution. The incapacity and dire wickedness of the President and his “courtiers” came in for a share of criticism.

Mr. Gooch on the following day, May 3, remarked that the rebellion was but the military phase of the conflict of ideas which began with the adoption of the Constitution. “When we shall have crushed the rebellion and restored peace to all parts of the country we shall hold this territory, not by a new title, but by the old, not as territory acquired by conquest, but territory defended and maintained against revolt.... I can see no reason why the President, as Commander-in-Chief, should not, in the meantime, so use the military power as to aid and assist the loyal people of any one of these States in the organization of a loyal State government.... All these acts by the President, or the military power under him, in thus aiding and assisting the loyal people in these States, impose no obligation upon Congress to recognize them until such time as it shall deem proper to do so, and any recognition the military power may see fit to give to these governments can never fix their status in the Union. Congress alone has the power to determine what government is the legitimate one in a State, and its decision is binding on the other departments of the Government.”[324]

Mr. Perry, of New Jersey, spoke of the duration of the war, predicted the general bankruptcy which its great expense would bring about, and calculated that in eleven years the cost of the war would equal the assessed value of property.

Speaking of the Executive plan he said: “And here the President’s design is perfectly evident, to secure a majority of the delegates to the nominating convention of his party, and to provide for his own election by the House of Representatives in the event of there not being an election by the people. By this plan the narrow foothold maintained by our armies in North Carolina, Louisiana, Texas, Alabama, Florida, Arkansas, and elsewhere may send the pretended full delegations of those States to this House. Mr. Speaker, I denominate the whole plan a political trick worthy of the most adroit and unscrupulous wire-puller of our ward primary meetings.” The State governments had not been destroyed, he added, “nor can they be destroyed unless the rebels are finally victorious, and establish their independence.”[325]

Fernando Wood said that Mexico had a republican form of government, and that Texas came into the Union without changing the character of her government except to substitute a governor for President and to change the titles of some officials. Every Southern State possessed the same form of government which it did before secession. If, he asserted, they were then republican in form, “they are so now.” The Confederate constitution had all the elements of republicanism. The bill provided that hereafter none of the States in rebellion should hold slaves. It did not leave to the people the right to regulate their domestic institutions. Is it republicanism to take from the people this privilege? “To impose upon them a form of government of your own making, under the pretext of this bill, would be the worst kind of tyranny, whatever the provisions of your constitution might be.”[326]

He defended himself against serious charges of General Schenck, whom he criticised severely. These accusations, however, were reiterated by Hon. William D. Kelley, of Pennsylvania, who at this point rose to speak on the merits of the bill.

The proposed measure did not meet his unqualified approval. It lacked some of the amendments suggested by Mr. Stevens. “I should like to see his distinct declaration,” said Congressman Kelley, “that ‘The Confederate States are a public enemy, waging an unjust war, whose injustice is so glaring that they have no right to claim the mitigation of the extreme rights of war which are accorded by modern usage to an enemy who has the right to consider the war a just one.’” He would like to see the bill of Mr. Davis provide also for the exclusion from Congress of all those States that seceded, and every part of them.

As more immediately important, however, he would prefer to see included in the measure the proposition of Mr. Stevens respecting amendments of the Constitution; he denied the immortality of a State. It has its beginning, its transitions and may have its end. “A State may be killed, a State may commit suicide. An act of God, by destroying its inhabitants, might extinguish a State. A State could be conquered and held by some strong and hostile power. The political people of each of those States have overthrown the State. Through its corporate power each State destroyed its corporate life, and no one of them exists.” He also denied that a State could transfer to any foreign power territory within the jurisdiction of the United States. The Supreme Court had decided that the Southern States were alien enemies and entitled to only the rights of such.[327]

The message of the President, Representative S. S. Cox believed, “should be welcomed, not so much for what it is as for what it pretends to be. It is his first adventure beyond the line of force into the field of conciliation....

“To test the genuineness of this amnesty: five months have gone, but we see no signs of thousands of Southern citizens rushing to embrace this amnesty. Indeed, it is conceded that the rebellion is now more formidable than ever.” There was no genuine movement toward the restoration of the seceded States. He would not take the oath of allegiance and swear support of the negro policies. How could Southern men be expected to take the oath? Its terms provoked or irritated them still more. The structure, he declared, was built on the Emancipation Proclamation.

The bill of Mr. Davis had the same defects. That, too, was based upon the one tenth system and the policy of forced emancipation. “In some of its features,” he said, “it is an improvement upon the rickety establishment proposed by the President.

“... The emancipation act of the gentleman [Lincoln] can never be reconciled with the normal control of the States over their domestic institutions, so all oaths to sustain the same are oaths to subvert the old governments, Federal and State.... The President’s plan, therefore, whether intended or not, is an oath to encourage treason, and the plan of the gentleman from Maryland is a plan to consummate revolution.

“... If his [the President’s] plan of making one tenth rule in the States should succeed, then he will have ready at hand the electoral votes of Florida, Arkansas, Louisiana, Tennessee, North Carolina, and other States. He began this business in Florida the other day, and the blood which flowed at Olustee is the result of this scheme of personal ambition!

* * * * *

“There is a sort of _odium historicum_,” proceeded Mr. Cox, “attached to all political test oaths.... They have been the bane and foil of good government ever since bigotry began and revenge ruled. You cannot make eight million people, nearly all in revolt at what they regard as the detestable usurpations of abolition, forswear their hatred to abolition. You force by this oath the freed negro into the very nostrils of the Southern man, whose submission to law you seek.

“The conditions of pardon only inflame but do not quench rebellion....

“We may yet change the war from the diabolical purposes of those in power, by changing that power to other hands, and we are not ready to sever our Union while that hope remains.”

Precedents and analogies from both ancient and contemporary history were cited to demonstrate the folly of attempting to hold the South in her place by force. These together with censure of the Administration and criticism of the dominant party in Congress made up a great part of Mr. Cox’s very long speech.[328]

Representative Boutwell, of Massachusetts, referring, May 4, to the remarks of his colleague, Mr. Ashley, of the committee which reported the bill, observed that “since this rebellion opened the Thirty-seventh Congress commenced its existence and ceased to exist; that this Congress is now closing the fifth month of its First Session, and that up to this time no efficient, indeed no legislative steps whatever have been taken by which the Executive is to be guided in the affairs of the people occupying the territory that has been reclaimed from rebel domination. Under these circumstances I think it due to the country that this House, at least, should do nothing which conveys any reflection upon his policy unless that policy be clearly and manifestly in contravention of the Constitution or of the well-ascertained and admitted principles of the Government.”

When the populous parts of Louisiana were torn from rebel domination, and the State of Arkansas indicated in various ways the growth of a sentiment of loyalty and returning allegiance to the General Government, the Executive had but one of three courses before him: either to be silent, to govern by military authority alone, or else to establish a civil government or at least to take initiatory steps toward such establishment. “It was unquestionably his right and duty, in the absence of all legislative action, to govern these territories as fast and as far as they were reclaimed by military power.”

He defended both the President and General Banks, who had for years been consistent advocates of liberty. He then announced himself in favor of the bill of Mr. Davis.

“The gentleman from Pennsylvania [Mr. Stevens],” continued Mr. Boutwell, “maintains, as I understand, that these States are out of the Union; that their territory is alien territory, and that we are making war against alien enemies. I do not admit either of these positions to be true. I feel quite sure that these eleven once-existing States are no longer States of the Union. The evidence on which I rely in support of this position is found first in the declaration made by the authorities of those States that they no longer exist as States of the American Union. Next, we find that for three years and more they have been resisting the authority of the Government and have been carrying on a war against it. It is absurd to say that States or people are a part of the Government under the Constitution, and entitled to constitutional rights and privileges, when they have been carrying on war against the Government.

* * * * *

“Nor do I admit that the people in the rebellious States are aliens. They are not of any other country, they are not of any other legal jurisdiction, they are within the jurisdiction of the Union. Three years ago they were a portion of this Union, and although they have been carrying on a war, that war has not thus far been successful, their independence has not been acknowledged by us, nor has it been recognized by any other nation. They, therefore, are not aliens. They are, to be sure, public enemies, but they are not alien enemies.

“... These States as political organizations have by their own will ceased to exist.... The existence of a State is a fact within the control of the people themselves, and cannot be influenced by any extraneous power whatever, and therefore these States have by the will of the people thereof as political organizations ceased to exist.”

Admitting that the Government of the United States had legal jurisdiction over this territory and over the people who occupied it, it was an absurdity, he declared, “to say that these States still exist and that the people there may without our consent elect officers and send Representatives to this body and Senators to the other branch of Congress.”

To the taunt of the Democrats that the war had been changed from a war to restore the Union to one for the purpose of emancipating the slave, Mr. Boutwell replied by a denial of the fact, but added that even if it were so, it was not the first instance of the sort in human history. Up to 1774 every American expected to preserve the old relations with England, yet within two years Independence was declared. The pending measure, he asserted, had not elicited marked attention in Congress nor any great interest throughout the country, yet in it lay the germ of a new civilization for half a continent.

The limitation of the elective franchise to white males did not meet his approval; for though the suffrage is not a natural, it is the highest political, right. Where the suffrage is denied to any large number of men, that community is never free from the danger of intestine commotion.

As South Carolina and Georgia were responsible for breathing into slavery the breath of life after it had everywhere been condemned, he would not have them again reappear in the Union. Florida did not deserve a place in the Union and, by giving the colored men local suffrage in that district, South Carolina, Georgia and Florida, he would invite the blacks thither as fast as they could be spared from the industries in which they were elsewhere engaged. He would not ask to extend this principle to loyal Northern or to border States with a negro population.[329]

Mr. Pendleton, of Ohio, made by far the ablest Democratic argument against the proposed enactment. Its details as well as its general policy, he said, required examination. After stating quite fully the provisions of the bill, he continued:

The gentleman from Maryland [Mr. Davis] facetiously entitles it “a
bill to guaranty to certain States whose governments have been
usurped or overthrown a republican form of government.”

At last the mask has been thrown off. At last the pretenses have all
been laid aside. Three years of war have done their work, and the
purposes and objects of the Republican party have been at last
acknowledged. This bill is the consummation of its statesmanship the
fruit of its experience, the demonstration of its purposes. The
gentleman from Maryland introduced it; it is understood to be
distasteful to some of his party friends; but it is a party measure;
it will be voted for by every member of the Republican organization;
it marks their policy of restoration; it defines their ideas of
Union; it interprets their construction of the Constitution. As such
I accept it. We have had double-dealing, hypocrisy and fraud for the
last three years. We have had false professions, false names, and
double-faced measures. We have had armies raised, taxes collected,
battles fought, under the pretense that the war was for the Union,
the old Union, the Union of the Constitution. These were the
catchwords for the patriotic people. In the secret council-chambers
of the party they were sneered at as devices with which to ensnare
the innocent, to deceive the ignorant, to coax the obstinate. They
were to be discarded as soon as, in the heat of war, in the
exasperation of passion, in the exultation of victory, or in the
bitterness of defeat and disaster and oppression, it would be safe
to divulge the great conspiracy against the Union, the
constitutional confederation, the principles of free government.

That time has come. The veil is drawn aside. We see clearly. The
party in possession of the powers of the Government is
revolutionary. It seeks to use those powers to destroy the
Government, to change its form, to change its spirit. It seeks under
the forms of law to make a new Government, a new Union, to ingraft
upon it new principles, new theories, and to use the powers of the
law against all who will not be persuaded. It is in rebellion
against the Constitution; it is in treasonable conspiracy against
the Government. It differs in nothing from the armed enemies except
in the weapons of its warfare. They fight to overthrow its authority
over them, while it seeks to destroy that authority at home. They
would curtail the limits of the jurisdiction of the Federal
Government; it would extend those limits, but change the basis and
principles upon which it rests. If revolt against constituted
authority be a crime, if patriotism consist in upholding in form and
spirit the Government our fathers made, those in power here to-day
are as guilty as those who in the seceded States marshal armed men
for the contest.

“Revolutions move onward.” That is true. But call things by their
true names. Admit you are in revolution; admit you are
revolutionists; admit that you do not desire to restore the old
order; admit that you do not fight to restore the Union. Take the
responsibility of that position. Avow that you exercise the powers
of the Government because you control them; that you are not bound
by the Constitution, but by your own sense of right. Avow that
resistance to your schemes is not treason, but war. Dissolve the
spell which you have woven around the hearts of our people by the
cunning use of the words conservatism, patriotism, Union. And we
will cease all criminations, we will hush all reproaches for oaths
violated, pledges falsified, faith betrayed. We will meet you on
your own ground, we will fight you with your weapons, and by the
issue of that contest, whether of argument or of arms, we will
abide.

Am I to be told that I misrepresent the Republican party? The
gentleman who has just taken his seat [Mr. Boutwell], an able and
honored member of that party, has said in your hearing, “If I could
direct the force of public sentiment and the policy of this
Government, South Carolina as a State and with a name should never
reappear in this Union. Georgia deserves a like fate. Florida does
not deserve a name in this Union.”

The gentleman from Maryland felt that this charge could be
truthfully made. He sought to answer it in advance. He denied that
the provisions of the bill contravened any clause of the
Constitution. Where is the authority for it? Where is the authority
to declare State governments overthrown? Where is the authority to
reconstruct them? Where is the authority to appoint a governor; to
call a convention to remodel their constitutions; to fix the
qualifications of its members; to prescribe the conditions of their
organic law; and until a _new_ constitution shall be made, to
administer by Federal officers such parts of the old constitution
and laws as the governor, or the President, or Congress may
select?...

At this point he quoted Madison on the guaranty clause, a subject elaborated in the Senate by Carlile, of Virginia. Mr. Pendleton observed that if slavery, which, with one possible exception, existed in all the States at the time of the adoption of the Constitution, was not inconsistent with a republican form of government then it was not inconsistent with it in 1864.

And yet the advocates of this bill [continued Mr. Pendleton] propose
to deprive the States of power over the question of slavery, power
over their own indebtedness, power to regulate the elective
franchise, and the right to hold office, under the pretense that
they thereby execute the provision that the United States must
guaranty a republican form of government to the States.

The gentleman from Massachusetts [Mr. Boutwell] has shown how he
would execute it. South Carolina, Georgia, and Florida should never
again appear as State[s] or in name in this Confederation. Is their
exclusion a guarantee to them of a republican government?

... If Congress may insist upon the three fundamental conditions
prescribed in this bill, ... by a parity of reasoning it ought to
insist upon their incorporation into the constitution of the States
remaining steadfast by the Union. If they are essential to
republicanism in the one class of States they are equally so in all.

* * * * *

... Gentlemen must not palter in a double sense. These acts of
secession are either valid or they are invalid. If they are valid,
they separated the State from the Union. If they are invalid, they
are void; they have no effect; the State officers who act upon them
are rebels to the Federal Government; the States are not destroyed;
their constitutions are not abrogated; their officers are committing
illegal acts, for which they are liable to punishment; the States
have never left the Union, but so soon as their officers shall
perform their duties or other officers shall assume their places,
will again perform the duties imposed and enjoy the privileges
conferred by the Federal compact, and this not by virtue of a new
ratification of the Constitution, nor a new admission by the Federal
Government, but by virtue of the original ratification, and the
constant, uninterrupted maintenance of position in the Federal Union
since that date.

Acts of secession are not invalid to destroy the Union, and valid to
destroy the State governments and the political privileges of their
citizens. We have heard much of the two-fold relation which citizens
of the seceded States may hold to the Federal Government—that they
may be at once belligerents and rebellious citizens. I believe there
are some judicial decisions to that effect. Sir, it is impossible.
The Federal Government may possibly have the right to elect in which
relation it will deal with them; it cannot deal with them at one and
the same time in inconsistent relations. Belligerents being captured
are entitled to be treated as prisoners of war; rebellious citizens
are liable to be hanged. The private property of belligerents,
according to the rules of modern war, shall not be taken without
compensation; the property of rebellious citizens is liable to
confiscation. Belligerents are not amenable to the local criminal
law, nor to the jurisdiction of courts which administer it;
rebellious citizens are, and the officers are bound to enforce the
law, and to exact the penalty of its infraction. The seceded States
are either in the Union or out of it. If in the Union, their
constitutions are untouched, their State governments are maintained;
their citizens are entitled to all political rights, except so far
as they may be deprived of them by the criminal law which they may
have infracted. This seems incomprehensible to the gentleman from
Maryland. In his view the whole State government centers in the men
who administer it; so that when they administer it unwisely, or put
it in antagonism to the Federal Government, the State government is
dissolved, the State constitution is abrogated, and the State is
left, in fact and in form, _de jure_ and _de facto_, in anarchy,
except so far as the Federal Government may rightfully intervene.
This seems to be substantially the view of the gentleman from
Massachusetts [Mr. Boutwell]. He enforces the same position, but he
does not use the same language.

... If by a plague or other visitation of God every officer of a
State government should at the same moment die, so that not a single
person clothed with official power should remain, would the State
government be destroyed? Not at all. For the moment it would not be
administered, but as soon as officers were elected and assumed their
respective duties it would be instantly in full force and vigor.

If these States are out of the Union their State governments are
still in force unless otherwise changed. And their citizens are to
the Federal Government as foreigners, and it has in relation to them
the same rights, and none other, as it had in relation to British
subjects in the war of 1812, or to the Mexicans in 1846. Whatever
may be the true relation of the seceded States, the Federal
Government derives no power in relation to them or their citizens
from the provision of the Constitution now under consideration, but
in the one case derives all its power from the duty of enforcing the
“Supreme law of the land;” and in the other from the power “to
declare war.”

* * * * *

The gentleman [Mr. Davis] states his case too strongly. The duty
imposed on Congress is doubtless important, but Congress has no
right to use a means of performing it forbidden by the Constitution,
no matter how necessary or proper it might be thought to be. But,
sir, this doctrine is monstrous. It has no foundation in the
Constitution. It subjects all the States to the will of Congress; it
places their institutions at the feet of Congress. It creates in
Congress an absolute unqualified despotism. It asserts the power of
Congress in changing the State governments to be “plenary, supreme
and unlimited”—“subject only to revision by the people of the whole
United States.” The rights of the people of the State are nothing,
their will is nothing. Congress first decides, the people of the
whole Union revise. My own State of Ohio is liable at any moment to
be called in question for her constitution. She does not permit
negroes to vote.... From that decision of the Congress there is no
appeal to the people of Ohio, but only to the people of
Massachusetts, and New York, and Wisconsin, at the election of
Representatives; and if a majority cannot be elected to reverse the
decision, the people of Ohio must submit. Woe be to the day when
that doctrine shall be established, for from its centralized
despotism we will appeal to the sword!

The rights of the States, he said in conclusion, had reconciled liberty with empire, the freedom of the individual with increase of the public domain; by the proposed measure these were all swept instantly away. It substituted “despotism for self-government; despotism the more severe because vested in a numerous Congress elected by a people who may not feel the exercise of its power.... It maintains integrity of territory but destroys the rights of the citizen.” Finally he declared that he preferred separation to the unity which the bill would create.[330]

Debate was concluded by Henry Winter Davis, who rose for the purpose of perfecting the pending measure by moving as a substitute a bill essentially the same as that under consideration in the House; from that plan, however, it differed in two not unimportant particulars. First, it excluded what his friend Mr. Cox had objected to, the rule of one tenth, and required a majority to concur in forming a government. The other softened the operation of the clause excluding officers of the State and Confederate government, by saving merely ministerial officers and the inferior military officers; so that the exclusion merely affected persons of dangerous political influence. By an arrangement with Thaddeus Stevens, instead of having a direct vote on his substitute, a portion of it was proposed as a preamble to this bill, which, of course, would be voted on separately and take whatever fate the House might assign to it. With these observations Mr. Davis said, “I offer this as a substitute, and move the previous question upon it.” The substitute was agreed to, and the amendment to the preamble adopted, the preamble itself being rejected. By 73 yeas to 59 nays, the bill passed the House, May 4, 1864.[331]

This important measure authorized the President, by and with the advice and consent of the Senate, to appoint for each of the States declared in rebellion a provisional governor, with pay and emoluments not to exceed that of a brigadier-general of volunteers, and who was to be charged with the civil administration of such State until a government was recognized as existing therein. As soon as military resistance to Federal authority had been suppressed, and the people had sufficiently returned to their obedience to the Constitution and the laws, it was made the duty of the governor to direct the United States marshal to enroll all white male citizens of the United States, resident in the State, in their respective counties; and wherever a majority of them took the oath of allegiance, the loyal people of the States were, by proclamation, to be invited by the governor to elect delegates to a convention to act upon the reëstablishment of a State government, the proclamation to prescribe the details of the election. Qualified electors in the army could vote at the headquarters of their respective commands. No person who had held or exercised any civil, military, State or Confederate office under the rebel occupation, and who had voluntarily borne arms against the United States, could either vote or be eligible as a delegate. The convention was required to insert in the constitution the following provisions:

First. No person who has held or exercised any office, civil or
military, except offices merely ministerial and military offices
below colonel, State or Confederate, under the usurping power, shall
vote for or be a member of the Legislature, or Governor.

Second. Involuntary servitude is forever prohibited, and the freedom
of all persons is guaranteed in said State.

Third. No debt, State or Confederate, created by or under the
sanction of the usurping power, shall be recognized or paid by the
State.

Upon the adoption of such a constitution by the convention and its ratification by the voters of the State the provisional governor should so certify to the President, who, after obtaining the assent of Congress, was empowered by proclamation to recognize the government so established, and none other, as the constitutional government of the State; from the date of such recognition, and not before, Senators and Representatives as well as electors for President and Vice-President could be legally chosen in such State. Until reorganization the provisional governor was to enforce the laws of the Union, and of the State before rebellion.

The remaining provisions were as follows: