Chapter XXI: Section 13: provided that “if any person declared free by this or any law (4)

Of the members of the committee Powell alone opposed the resolution offered by Mr. Trumbull. The chief object in recognizing the government of Louisiana at that time, said the Kentucky Senator, was to allow that State to vote for the proposed amendment of the Constitution; to do that effectually those favorable to the resolution desired first to admit her Senators and Representatives; their admission would be the immediate effect of its passage.

A just conclusion on that subject could be reached only by information concerning the action of the President, of the military, and of the people of Louisiana in connection with the election. He opposed the loyal government because it was not formed by the people of that State; however, he did not want to be classed with those who thought Louisiana out of the Union. He believed that something approximating a majority of her people should indicate a willingness to return to the Union, and should participate in the movement for reorganization. The formation of the existing government, he asserted, was controlled and influenced by persons who were not citizens of Louisiana, and, he added, “It is a government formed really and virtually by the military power of the United States, using as instruments delegates who were elected under and by force of the bayonet.”

Before Senators could vote for the resolution, he continued, they must maintain the doctrine announced in the President’s proclamation of December 8, 1863, when he proposed that one tenth of the loyal voters in a State who would comply with the conditions therein prescribed, could form a State government; they must further maintain that the President, of his own volition, had power by decretal order to alter the constitution of a State; that the President had power to prescribe the qualifications both of voters and candidates for office in the States; finally they must believe that not only did the President possess these powers, but that Major-General Banks, in virtue of his office, possessed them in Louisiana.

Mr. Powell proposed to show that not only did Louisiana people not act of their own volition, but that “they were coerced to do what they did.” The constitution of that State, he asserted, was not made by the free suffrage of the people.

The creation of a State government is a purely civil act; the people must act without restraint. He had never heard any Senator say that the President could legitimately exercise the power assumed in his proclamation of December 8, 1863. Mr. Powell objected to the oath which was to be taken as a condition precedent to becoming a qualified elector in one of the revolted States, especially to that portion which promised support of all future proclamations of the President on the question of slavery. “Why, sir,” he exclaimed, “the President may proclaim that the negro shall be the master and the white man the slave; that the negro shall be the voter and the white man deprived of the right of suffrage; and yet this oath requires the man taking it to swear in advance that he would support even such a measure as that....

“At the very threshold, then,” he continued, “you repudiate the great principle of republican government that majorities shall rule. Here you propose to say not that majorities, but that less than one tenth shall rule.” It was intimated by the President that when they made a constitution it must not recognize African slavery. General Banks, carrying out the suggestion of the President, as well as what had been distinctly stated to General Steele in relation to Arkansas, took it upon himself to alter the constitution of Louisiana in that respect.

Whence does the President, it was asked, derive the power to prescribe qualifications for either electors or candidates? The proclamation, the Kentucky Senator asserted, was the basis of the whole proceeding, and those who voted for the resolution endorsed the proclamation.

Mr. Powell then reviewed the acts and read the proclamation of General Banks, whose conduct he denounced for presuming to declare certain parts of the Louisiana constitution no longer applicable to any class of persons in that State, and, therefore, inoperative and void.

He further objected that Banks had no authority to call the convention, for the constitution of Louisiana could be lawfully amended in only the mode pointed out by itself. The President’s proclamation, he added, would allow only those to vote who were qualified electors under the fundamental law of the State; those in the army and navy were not, but General Banks in his ukase of February 13, 1864, allowed them to participate in the election.

He also invited attention to the action of the Department Commander in designating provost marshals to take care that the polls were properly opened, in the absence of the sheriffs, and that suitable persons were appointed judges of election and so forth. Of the 11,414 votes he asserted that 808 were cast by soldiers who under the President’s proclamation were not legal voters. The fact, added Mr. Powell, that General Banks after the inauguration of Hahn as governor continued to issue proclamations shows that the civil was controlled by the military authority.

Passing on to a discussion of the statement of Banks before the Committee on the Judiciary that the military did not interfere in the election of February 22, Senator Powell quoted the following passages from a proclamation of the Department Commander:

Those who have exercised or are entitled to the rights of citizens
of the United States will be required to participate in the measures
necessary for the reëstablishment of civil government.... It is
therefore a solemn duty resting upon all persons to assist in the
earliest possible restoration of civil government. Let them
participate in the measures suggested for this purpose. Opinion is
free and candidates are numerous. Open hostility cannot be
permitted. Indifference will be treated as a crime, and faction as
treason.

“Talk to me,” exclaimed Mr. Powell, “of freedom of election under such military orders! Why, sir, there was but one free man, in my opinion, in all Louisiana at that time, and that was Major-General Banks; and I do not know that he was free, for he was serving his master at the White House.” The fundamental law there was martial law, which is but the will of the commander-in-chief, and under that law he could have beheaded them if they did not vote.

From beginning to end, he continued, the coercive finger of the military was engaged in the establishment of that government. Under the various proclamations even Unionists, men who had always been loyal, could not vote unless they took the oath required in the President’s proclamation. There was a large class of loyal men in Louisiana, he said, who refused to take that oath, for there had been presented to the Judiciary Committee an earnest protest signed by Thomas J. Durant and thirty-one others, influential Union men of that State, against the admission of Senators and Representatives and against counting its electoral vote. Those Senators, he added toward the conclusion of his remarks, who only a few days before opposed the counting of Louisiana’s electoral vote should now vote against the resolution acknowledging the government which appointed the Senators that are claiming seats.[405]

Sumner and Davis referred to the resolution as a shadow. To this Mr. Doolittle replied that the vote of Louisiana might be necessary to secure the constitutional amendment, and that the new constitution of that State had struck the shackles from 90,000 slaves not reached by the Emancipation Proclamation.

Mr. Henderson, who favored the resolution, secured the floor, and observed, among other things, that Louisiana and Arkansas did not claim that they were yet strong enough to maintain their governments without the military aid of the nation; but neither was Maryland, West Virginia, Kentucky or Missouri; even Ohio, Indiana or Illinois, he said, could not without national assistance maintain their State organizations for sixty days against the Confederate armies.

“If we would have State governments,” said Mr. Henderson, “we must begin somewhere and at some time.” It was nonsensical, he argued to talk of restoring the Union, while keeping the loyal people in those States for all time to come under military domination. “We must declare the right in Congress,” he added, “to make and establish these governments for the States, or permit the President, under military law, to set them up, or we must recognize such as the loyal people may set up for themselves.” If, as Madison thought, Congress cannot make them, but can only guarantee such as already exist and are found to be republican in form, it must be left with the President, under his power as the head of the army, or to the people of the respective States. If left entirely with the President he might by military force impose upon the State a constitution against the wishes of both the loyal and disloyal. The Senator frankly admitted that neither House would be under any obligation to receive members sent from a State so constituted.

“But,” he went on to say, “if the people—the loyal masses, whether a majority or a minority of the whole voting population as formerly known—participated in its creation and acquiesce in the revival of the State government, the case though inaugurated by the President in my judgment would be very different. According to the theory of our Government, and its practice in all its past time in analogous cases, it would seem that whether Congress or the President inaugurated the proceeding, the constitution can only receive its validity and authority from the approval or acquiescence of the people to be affected; and that brings me to consider how the people in the seceded States shall revive their governments, and who are the legally qualified voters for that purpose in these States.

“At the threshold of the inquiry we are met with the objection that the States are now without officers of any kind legally elected, and that of themselves they are powerless to inaugurate any movement to set up a loyal government. It is said they have no officials to superintend the election, to count the votes, and grant certificates of election. However desirable these formalities may be, it has not been the uniform practice of Congress to require them.”

In the case of California, continued Mr. Henderson, the first election was called by the military order of a subordinate officer of the army, a delegate convention was chosen, a constitution was framed by that assembly and submitted to Congress. It was accepted as republican in form, and under it a State government was inaugurated that for fifteen years had been administered with the greatest success. The territory, he said, was wholly without civil authorities recognized by the United States. Congress had passed no enabling act, had prescribed no forms of proceeding, had failed to fix the qualifications of voters, had appointed no judges of election or other officers to count and certify the votes; yet the act, however informal, was ratified because the constitution on its face was unobjectionable in form, and it was believed that the people interested acquiesced in the government it established.

If the people of Rhode Island, added Mr. Henderson, had acquiesced in the government set up under Dorr, Congress and the Executive would have recognized it as legitimate. The Senator from Kentucky contended that although a majority of the legal and qualified voters of Louisiana should acquiesce in the new constitution Congress could not admit the State. In support of his view Mr. Henderson pointed to the State government of Missouri, which was the offspring of a movement purely revolutionary.

In the States whose representatives were seeking admission to Congress but one government asked recognition, and what if these organizations were of revolutionary origin?—the revolution was on the side of loyalty. Revolutionary governments had been accepted in time of peace—governments springing up in the midst of anarchy, without the sanctions of regularity; why, he asked, should they be rejected now when they were needed to protect the loyal inhabitants of the respective States and to aid the nation in vindicating its lost authority?

The assertion that on the face of these constitutions they were republican in form Senator Sumner denied. They did not follow out the principles of the Federal Constitution. This general answer was unsatisfactory, and Mr. Henderson said that the only question with him was how could he best get these States performing their legitimate functions in the Union again. If, as the Massachusetts Senator maintained, the act of secession took the States out, why could not the act of loyal men bring them back? If secession, he argued, was potent enough to take a State out, and that was mere revolution, why could not the loyal men perfect a revolution on the side of Government as well as rebels perfect a revolution on the side of secession, outrage and wrong?

The doctrine that secession took the States out of the Union, Sumner objected to have imputed to him. A subsequent remark indicated one ground of his opposition to the government of Louisiana. “If the loyal men, white and black, recognize it, then,” he declared, “it will be republican in form. Unless that is done, it will not be.”

When asked whether Congress could interfere with the right of suffrage in one of the States, Sumner evaded a candid reply, and concealed his meaning under these words: “It is the bounden duty of the United States by act of Congress to guarantee complete freedom to every citizen, and immunity from all oppression, and absolute equality before the law.” No government that does not guarantee these things, he added, can be recognized as republican in form according to the theory of the Federal Constitution, if the United States are called upon to enforce the constitutional guaranty.

Senator Henderson, interpreting this answer in the affirmative, observed that if under the guaranty clause the national Legislature could regulate the suffrage in the States, there was no limitation except the mere discretion of Congress. In support of this position he cited Madison in No. 43 of _The Federalist_, and of course had this part of the argument his own way, for the test of a republican form satisfactory to the Massachusetts Senator would leave few representatives in Congress.

Mr. Henderson denied that the admission of Senators and Representatives from these commonwealths would be a precedent for other States to demand recognition, even with the institution of slavery, thus bringing back the germs of a new rebellion against the Government; because in the constitutions presented involuntary servitude was abolished. With slavery remaining any restoration would be utterly useless. It was against union with the free States that the Southern people had taken up arms, and against restoration that they continued to use them. In that struggle they would employ every moral and material force, including the slave himself, stimulated by the boon of freedom, to resist the return of their States. Whatever the future might bring, it would fail to bring to the doors of Congress seeking admission a State constitution without a positive interdict of slavery.

To the objection that a majority of the people of these States were in rebellion and that to recognize the loyal minority would be to subvert the whole republican system Senator Henderson replied that if it were strictly true that a majority in a particular community “not only shall but must govern,” then a majority of legal voters in a State desiring to secede would have the undoubted right to do so. As no principle of the General Government authorized such action, it was not true, he said, that a majority of citizens in a State can govern themselves except in strict obedience to the Constitution of the United States. If a majority proved derelict and undertook to destroy the very Government of which the State is a part, it is right that the minority, who sustain the Government in its entirety, State and national, should institute government for their protection. He admitted that General Banks did a great many things for which there was no legal authority; but the question was whether this constitution was the will of the loyal men of Louisiana. If it was, their representatives had a right to seats on the floor of Congress.

In reply to Sumner, Senator Henderson said he favored the idea that the loyal men should govern a State, and he added, if that be the government of the few it results from the voluntary disloyalty of the many. They, of their own will, had relinquished the right to govern themselves under the Constitution, and as they had no right to govern themselves otherwise they could not govern at all. As to the oligarchy of skin, to which Sumner had referred, Henderson believed that the regulation of the suffrage was a question for the consideration of the States; if they conferred the franchise on the negro, he did not object.

As to the Louisiana constitution the question was whether it embodied the will of those legally entitled to exercise the functions of the State government. If the casting of illegal votes vitiated elections, but few elections, he asserted, would be valid.

If those States were admitted, they could immediately settle all questions of suffrage, and Congress would be relieved of the difficulty in future. He put clearly the difference of opinion prevailing among Senators on this subject when he stated that Mr. Powell objected to the new constitution of Louisiana because negro soldiers were permitted to vote, while Mr. Sumner opposed it because negroes at home did not vote. Concluding this part of his speech, he declared that the Federal Government by recognizing the old organization in Rhode Island against Dorr expressed its preference for a constitution of restricted suffrage.

Without naming his authority Henderson then read from a private letter the opinion of a gentleman whom he regarded as one of the ablest jurists in the United States.[406] The correspondent said in part:

It must be observed that the civil society, and the political
society so to speak, of a State need not necessarily do [be] the
same. In other words the basis of _representation_ may be the whole
population, but the basis of _suffrage_ be property, adult years,
&c. The power to choose rulers is lodged in the voters, and they may
not exceed one tenth of the population.... That portion of the
population in which political power is lodged, determines who shall
fill the respective offices, make laws, etc. Although the members of
that society may have possessed every requisite therefor, yet the
moment they ceased to be citizens of the United States they ceased
to belong thereto.

That rule holds good with respect to every member, and the political
society may, by death, disqualification of members, &c., be reduced
to a very few persons. To state an extreme case, for illustration of
the principle, Massachusetts formerly had a property qualification,
and although her population entitled her to, say, thirteen
Representatives in the United States House, her voters may not have
exceeded fifty thousand. Suppose while that qualification remained,
by some financial or other disaster, only one thousand or one
hundred citizens retained the necessary income or property, would
not the persons chosen to Congress by the few and only remaining
voters be duly elected? So with regard to any other element of
suffrage, as United States citizenship, if by its loss the voters
are reduced to very few in number, do not those few constitute the
political or voting power? As to the policy or impolicy of
restricted suffrage, we are not now concerned, but are endeavoring
to reach a constitutional and legal analysis of our governmental
system.

But here is encountered the startling and practical difficulty,
“Shall a few persons be permitted to govern a State, despite the
wishes of its inhabitants, and without giving them all a voice? Is
that republican?”

But it must be remembered that the few voters, say one seventh, or
one tenth of the whole population, have always been intrusted with
that power. Wisdom has fixed the basis of suffrage, without regard
to relative numbers; that is, it has endeavored, under our popular
system, to give the right or privilege to as many citizens as were
supposed competent to exercise it intelligently. The rules
prescribed as to age, sex, citizenship, &c., were deemed essential,
right, and proper. Whether many or few come within the rules does
not affect their validity.... If persons heretofore entitled to a
vote chose to commit a felony, and incur thereby, as a penalty, the
deprivation of their former right of suffrage, it is not supposed
that the loss of such votes is anti-republican. If, then, a majority
choose to perpetrate treason, or to expatriate themselves, or in any
other way become disqualified, how does that action vitiate the
rule? If they, after becoming disqualified, remain in the State, are
they not bound to submit to its rulers and laws? If their rulers are
chosen without their voice, is it not in consequence of their own
voluntary action? Indeed, it often happens that the persons elected
to office receive only a meager minority of the votes which could
have been lawfully polled, yet that fact has no influence upon the
legal result. So a person is often chosen by a minority of the votes
actually cast, and is not the majority bound to submit?

The author of this letter appears to have been more familiar with the Constitution, as it was understood by its framers, than almost any member of either House, notwithstanding the presence in Congress of many distinguished statesmen. In the following eight propositions Mr. Henderson then gave a masterly summary of the Presidential plan of reconstruction:

1. I hold that the seceded States are still in the Union and cannot
get out of it except through amendment of the Constitution
permitting it.

2. The seceded States being still in the Union are entitled to claim
all the rights accorded to other States.

3. That each State now in the Union has the right to stand upon the
form of its constitution as it existed at the time of its admission.
The people of such State may change its constitution, provided they
retain a republican form of government; but neither the President
nor Congress can reform, alter, or amend such constitution, nor
prescribe any alteration or amendment as a condition of association
with the other States of the Union. The General Government may
properly lend its aid to enable the people to express their will;
but any attempt to exercise power constitutionally reserved to the
State, beyond what may be demanded by the immediate exigencies of
war, will not tend to restore the Union, but rather to destroy our
whole system of government.

4. When citizens of a State rebel and take up arms against the
General Government they lose their rights as citizens of the United
States, and they necessarily forfeit those rights and franchises in
their respective States which depend on United States citizenship.

5. If a seceded State be still in the Union, entitled to recognition
as a State, and a majority of the people have voluntarily withdrawn
their allegiance, the loyal minority constitute the State and should
govern it.

6. Congress should not reject the governments presented because of
mere irregularity in the proceedings leading to their
reorganization.

7. If Congress has no right to make and impose a constitution upon
the people of any State; if its power extends no further than to
guaranty preëxisting republican forms of government; if the State
still exists, and the loyal men are entitled to exercise the
functions of its government, it follows that the only questions to
be examined here are, first, is the constitution the will of the
loyal men qualified to act? and, second, is it republican in form?

8. The constitutions of Louisiana and Arkansas are thought to be
republican in form, and it is admitted that the loyal men of those
States respectively acquiesce in them. Hence the duty of Congress to
recognize them, and the duty of each House to admit their
representatives.[407]

On February 25 debate on Trumbull’s resolution was resumed. At this point Mr. Sumner offered an amendment in substance as follows:

That it is the duty of the United States at the earliest practicable
moment, consistent with the common defence and general welfare, to
reëstablish by act of Congress republican governments in those
States where loyal governments have been vacated by the existing
rebellion, and thus, to the full extent of their power, fulfil the
requirement of the Constitution, that “the United States shall
guaranty to every State in this Union a republican form of
government.”

Sec. 2. _And be it further resolved_, That this important duty is
imposed by the Constitution in express terms on “the United States,”
and not on individuals or classes of individuals, or on any military
commander or executive officer, and cannot be intrusted to any such
persons, acting, it may be, for an oligarchical class, and in
disregard of large numbers of loyal people; but it must be performed
by the United States, represented by the President and both Houses
of Congress, acting for the whole people thereof.

Sec. 3. _And be it further resolved_, That, in determining the
extent of this duty, and in the absence of any precise definition of
the term “republican form of government,” we cannot err, if, when
called to perform this guaranty under the Constitution, we adopt the
self-evident truths of the Declaration of Independence as an
authoritative rule, and insist that in every reëstablished State the
consent of the governed shall be the only just foundation of
government, and all men shall be equal before the law.

Not less important is the declaration in the fourth section that “in the performance of this guaranty, there can be no power under the Constitution to disfranchise loyal people, or to recognize any such disfranchisement, especially when it may hand over the loyal majority to the government of the disloyal minority; nor can there be any power under the Constitution to discriminate in favor of the rebellion by admitting to the electoral franchise rebels who have forfeited all rights and by excluding loyal persons who have never forfeited any right.” To allow the reëstablishment of any State without proper safeguards for the rights of all the citizens, and especially without making it impossible for rebels to trample upon the rights of those who are now fighting the battles of the Union, would be, said the succeeding section, for the United States to fail in duty under the Constitution.

More directly in opposition to the resolution reported by the chairman of the Judiciary Committee, however, was the seventh section, which declared “That a government founded on military power, or having its origin in military orders, cannot be a ‘republican form of government’ according to the requirement of the Constitution; and that its recognition will be contrary not only to the Constitution, but also to that essential principle of our Government which, in the language of Jefferson, establishes ‘the supremacy of the civil over the military authority.’”

The resolutions further asserted that a government founded on an oligarchical class, even if erroneously recognized as a “republican form of government,” could not sustain itself without national support; that such an organization was not at that moment competent to discharge the duties and execute the powers of a State, and that its recognition would tend to enfeeble the Union, to postpone the day of reconciliation and to endanger the national tranquillity. The ninth section renders clear one ground of Sumner’s hostility to the recognition of Louisiana. It asserts that

Considerations of expediency are in harmony with the requirements of
the Constitution, and the dictates of justice and reason, especially
now, when colored soldiers have shown their military value; that as
their muskets are needed for the national defence against rebels in
the field, so are their ballots yet more needed against the subtle
enemies of the Union at home; and that without their support at the
ballot-box the cause of human rights and of the Union itself will be
in constant peril.[408]

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

Senator Howard, of Michigan, entered at this point into the debate. Much of what he said has already been related in the preceding narration of events leading up to the reinauguration of a loyal government in Louisiana. While admitting that the President’s plan had been undertaken for patriotic ends, he could not, he said, recognize in the Executive, without the subsidiary aid of an act of Congress, any right to assure a community, composed of voters numbering one tenth of the electors who participated in the Presidential contest of 1860, that it would be recognized as a legitimate government and entitled to the constitutional guaranty. This, he said, was a stretch of authority beyond any previous attempt, and he thought it time that Congress, in whom, he believed, rested solely the authority of readmitting and reconstructing the rebellious States, “should lay hold of this subject, assert their power, and provide by some statute of uniform application for the reconstruction, as it is called, and readmission of the insurrectionary States. That is their right and their duty; that is not the right, it is not the duty of the President.”

A State he defined negatively as not “the geographical superficies,” the land, on which population resides, and positively as “a moral person, a political community, possessing the faculty of political government.” The land, he said, is the theatre on which the political community moves and acts, but is endowed with no thought, no right, no duty. The thinking beings residing upon it constitute the State.[409]

“A State of the Union or a State in the Union is, therefore, a people yielding obedience to the laws of the Union, that is, the acts of Congress and the national treaties.... A people who have a State government which is republican in form; a people who were one of the original thirteen States which formed the United States, or a people who have, since the adoption of the Constitution, been, in the language of that Constitution, ‘admitted by the Congress into this Union’ as States upon an equal footing with the original States; for this equality of rights and powers as States is plainly implied by the language and the manifest intention of the instrument; and no other people except such original State or admitted State; none but a State which permits the laws of the Union to have full scope and force within its limits; none but a State which sends Senators and Representatives to Congress friendly to the Government itself, willing to vote men and money to support and uphold it, who believe that a person forcibly resisting its authority is a traitor and deserving of death; none but a State which is willing to bring to trial, to convict such a traitor, and to punish him for his treason; none but a State whose population is capable of furnishing both the grand jury to indict and the traverse jury to convict such a traitor; none but a State whose population and whose authorities are in favor not only of permitting the laws of the United States relating to civil rights to be executed, but who are willing that the punitive code of the nation, the code of vengeance against its enemies, shall be carried out; none but such are States of the Union....

“To be in fact a State of the Union and in the Union, this will or consent of the people must be in harmony with the Constitution, and its movements subsidiary to it. It must regard the Constitution as its highest political good; its injunctions as the highest human law, its commands as the infallible and final measure of civil duty. In short, to be in the Union is to be actively and willingly coöperating with other States in the performance of all those acts and things without which the Federal Government cannot act or move, cannot perform the functions required of it by the Constitution; it is to elect Senators and Representatives to the Congress of the United States; to permit the courts of the United States to be held within their limits, and its citizens to act as jurors and officers of the court; to permit the judgments and sentences of the court to be executed against its citizens; to permit the United States mail to be carried through the State and its contents distributed according to law; to permit the officers of the United States to collect the Federal revenue whether derived from foreign or domestic products; to permit the United States to manage and control their own property, whether consisting of forts, dockyards, arsenals, mints, or public lands; to make such elections of Senators and Representatives freely and as the means of maintaining itself as a State in the Union; and to permit all these things willingly and freely as rights belonging to the Federal Government with which neither the State government nor the people of the State have any right whatever to interfere. In short, to be a State in the Union is to use all those powers of the State which have a relation to the Federal Government in a manner friendly to that Government, friendly to its existence and continuance, in a manner promotive of the objects of that Government; and to permit without hindrance the exercise within the State of all the powers of the Federal Government.”

Though he declined to discuss the question whether a State by omitting to send Representatives and Senators to Congress would on that account cease to be a member of the Union, he gave it as his opinion that mere failure to be represented in Congress would not be followed by such consequences; but if a State not only refused to participate in Federal legislation but went farther, and as a political community made war upon the General Government, he declared that “it would be folly, madness, to say that the State was not our enemy in every sense in which that term can be employed to describe hostile relations between independent communities.... No one will pretend that such a community is in the Union in fact, for that would be to make an admission and in the same breath to contradict it. _De facto_, such a community, and, if it be bounded by State lines, such a State, is as completely out of the Union as is Canada or Mexico, from the moment it assumes the attitude of hostility until it is subdued and conquered by our arms, or until it voluntarily lays down its arms, ejects its hostile government and returns _in fact_ to its once friendly sentiments and friendly relations to the Federal Government.”

“Loyalty,” continued Senator Howard, “thus becomes the final test in solving the question, what is a State in the Union? If a State by its overt acts has shown a want of this friendship, it is no longer in the Union _de facto_, and cannot be treated as if it were. The Supreme Court, acting upon the soundest principles of public law, have decided the waging of war by a State, although acting under an illegitimate and revolutionary government, renders her territory enemy’s territory, and the people there resident enemies of the United States, in the sense of the laws of war. And their decision could not have been different.”

The State, he argued further, was in fact, though wrongfully, out of the Union because its actual government was disloyal and treasonable. Out of it because unsubdued rebellion made it for the time being an independent though unrecognized nation on the earth’s surface, throwing off its allegiance to its paramount Government, and assuming by the sword to assert its separate nationality.

“But we are at war with the rebel States, and are told ... that the Government, so far at least as the rebel States are concerned, is under some peculiar constitutional restraint by which its hands are tied; that we are prohibited from ‘subjugating’ those States; that all we can do, under the Constitution, is to break up the military array of the rebels, disperse their armed bands, take away their arms, and do that very indefinite duty, _restore order_; that thereupon our task is ended and the rebel States have a constitutional right to come back into the Union and participate in the enactment of Federal laws and the conduct of the Federal Government. And we are menaced both in Congress and out with terrible retributions if we conquer or attempt to conquer, if we subjugate or attempt to subjugate, the rebel States. It is admitted by these our critics that in an international war ... we should have all the rights and powers of other independent nations, and might rightfully conquer our adversary, ... that we might make a complete conquest of his people and his territory....

“Now, it is lawful to wage such a foreign war, for the purpose of effectuating such a complete conquest, and of course lawful to attain it; ... lawful to substitute the political authority of the United States for that of a hostile foreign nation;” otherwise, he argued, the war could not be a successful one; hence in a war with a member of the Union the United States could substitute for the authority of such hostile commonwealth its own authority. There was no difference between the two cases. The former actual hostile government should be supplanted by the Federal Government. No other government had a right to give the law. Had the conquered rebel people that right? No; for that would be to allow them at once to expel their conquerors by a popular decree, and to deny the supremacy of the Federal Government which had subdued them. Had the old State government, he asked, the once loyal government, the right to govern the conquered people? No; there was no such government. It had long since ceased to exist. “In fact, there is no government there, none at all, which can for a moment be recognized or permitted by the United States, as the party now holding the actual mastery of the country; and like every other case where the possession of a country has arisen from the use of superior force, the will of the conqueror is the law—that is, the will of the United States expressed, in the absence of acts of Congress, by the Commander-in-Chief of the Army, but by the acts of Congress after Congress has spoken.

“... No one will deny that we have a right to subdue by arms and to reduce to quietude and submission a rebel State, that is, the people of a State in insurrection. But how absurd to make this concession, and at the same time to deny to us the constitutional power to occupy and hold the territory and its people in our military grasp—an occupation just as necessary to the end in view as the firing of cannon, the charging of cavalry, or any other operation in the field.

“... The true objects of the war ... are the suppression of the rebellion, the reëstablishment of the original Federal authority within the State, and the revival of the loyalty of the people of the State as the sole foundation and condition of all its civil rights as a State of the Union and of the right of its people to be treated as friends and not as enemies. Although the United States have the full and complete right which conquest gives, for the purpose of subjecting these domestic enemies to the exercise of the powers granted by the Constitution to Congress, and for the purpose of restoring to the body-politic its vital blood, loyalty to the Government, yet those purposes, those distinct ends, are without doubt limits beyond which we cannot go. We are restrained by the manifest objects for which the national Government was formed; but restrained by no particular clause of the Constitution. The instrument contains no such clause, and the limitation and restraint are of precisely the same nature as those which any other government is under in subduing an insurrection of its own subjects or citizens; the plain object of the war in both cases being the restoration of legitimate authority and the revival of allegiance. And until this revival of allegiance there must be the same need of military occupation and repression in both cases.”

After showing that the existence of the States is indispensable to that of the Federal Government, he proceeded, “it is not permissible by mere interpretation to clothe that Government with a power permanently to abolish the State government by way of punishing or suppressing the rebellion; or to convert the States into mere Territories of the United States, that is, public domain, to be divided up afterward by lines different from those of the States, and again admitted into the Union like matured Territories, with such new geographical limits as Congress may see fit to establish.”

Article IV., Section 3, Clause 1 of the Constitution the Senator regarded as an express prohibition to change the boundaries of any State once in the Union without its consent; “its consent in its capacity as a State, freely given by its own Legislature.” He believed that the Amnesty Proclamation of President Lincoln indicated that its author held a different opinion.

He rejected the idea that the rebellious States could be converted into Territories. This term, under our system, he added, “implies land never lying in any State, land ceded to the United States either by the old States, or purchased or conquered from foreign nations. The term never has been used to describe a State or any part of a State; and it implies not only the ownership of the soil and right of disposition, but full and complete political jurisdiction in the Federal Government over the people resident there....”

The objects of the conquest being as stated above, such forcible occupation was, he continued, in its very nature temporary and ought to cease the moment those objects were attained. This could not be done without establishing a government to preserve order, life and property—a provisional government, for that is the true historic name to be applied in all cases where an old government has been overthrown; a provisional government instituted by the conqueror, and to be continued just so long as Congress deemed it necessary to continue it for the attainment, and while attaining, those high objects. The occupancy, that is, the possession of all the reins of local government by the Federal authorities would be but temporary, provisional, fiduciary. It should necessarily last until the Federal Government had done its duty in the reëstablishment of order and the revival of loyalty. Until then it was, and should continue, the omnipotent sovereign of the State, holding actually by right of conquest, though for a particular purpose, and being itself necessarily the final judge to determine when its tutelary mission had been accomplished.

He avoided, he said, a discussion of the question whether a State can commit suicide, that is, extinguish its own being by waging a rebellious war against the Federal Government; instead of presenting any such abstract question of political dialectics, the case, he declared, merely presented the usual question which arose whenever and wherever there had been a forcible revolution. What, he inquired, was the duty of the paramount and lawful government in its treatment of insurgent communities? And was not the Government doing its whole duty in punishing the ringleaders in the revolt and restoring the old and constitutional Government over those districts?

The Government, Mr. Howard proceeded, must be the final judge of the duration of this military occupation. It was bound by the plain terms of the Constitution not only to suppress the insurrection, which was done the moment it had obtained firm possession of the whole of the hostile territory, but to guarantee to the conquered State a republican form of government. To perform this high and sacred trust, time of course was necessary; likewise a great variety of means and instrumentalities, “of all which the Government of the United States must, because it has no superior, no equal in the matter, be the sole and final judge. These means may embrace acts of provisional legislation, creating private rights and duties not previously in existence, but existing by law and of a permanent nature, paramount to all subsequent State legislation because arising under the supreme authority of the nation, as, for instance, the giving freedom to slaves; or they may undoubtedly embrace conditions to be performed by the subdued States on taking their places again in the Union, such as would be an ordinance forever abolishing slavery in the State....

“Yet while thus in our military power, awaiting our action, looking to their restoration, nothing is clearer than that the citizens of the rebel States, though owing obedience to all the laws of the United States, possess no political rights under the Constitution except protection. They are not free to act, because their freedom to act would, if indulged, lead them again to draw the sword against the United States.... They have no right to send members to this body or to the House of Representatives, much less to participate in the election of President and Vice-President. They are the ward-provinces of the United States, progressing toward the maturity of revived loyalty, but not yet entitled to exercise the elective franchise or to participate in the enactment of laws.

“If I am asked what I mean by the Government of the United States, and whether I mean that the President as Commander-in-Chief has the exclusive power to establish these provisional governments, I answer, I do not. He has the right to regulate military occupation until Congress has acted upon the subject; ... but the establishment of provisional governments, the quieting of the rebellious province and the reëstablishment of legitimate authority over it, pertains to the sovereign power, that is, the law-giving power of the nation. With us that power is lodged in Congress and not in the President; and in my opinion it is the business of Congress, and Congress alone, to establish and uphold these provisional governments.... We need not doubt that whatever we see fit to enact will be approved and carried out by the President. We cannot be more truly anxious than he to fix upon a stable, firm policy for restoring peace and union; but we ought not to shut our eyes to the necessities he will continually be under, to the almost irresistible importunities he will encounter, to provide some sort of civil government for the subdued States or districts; or to the consequences of leaving such mighty questions for him to decide. It is our plain duty to establish a uniform rule on the subject, so that all may be treated alike and the same remedy be applied with a paternal but firm and resolute hand to each delinquent State.”

He opposed for two reasons the “scheme” of allowing one tenth or any other minor part of the male citizens of a commonwealth to organize a government and assume to act as a State: first, “because as against the will of an actual majority the government of such a minority must necessarily come to a speedy end and thus invite a renewal of the civil war, in that locality at least; and second, because government by a minority is of evil example and inconsistent with the genius of American liberty.... As a Republican I would sooner hazard ten slaveholders’ rebellions than risk liberty in a government by a minority.” In this connection he assigned an additional motive for his attitude toward the resolution. The will of the friendly element, he said, could prevail only by military support, and such an organization, if intended as a civil government, was not republican in the sense of the Constitution. When such aid was withdrawn the majority, he asserted, would wreak vengeance on the weakened minority.

Concluding this part of his argument, he added: “The measure now before you proposes to acknowledge eight thousand citizens of Louisiana as a State, and to give them the rights and privileges exercised by a voting population of more than fifty thousand in 1860. Eight thousand are thus to give the law or assume to give it to forty-two thousand—to more than five times their number. This they may do so long as their decrees are sustained by the presence and consent of a competent military force; but we all know, both parties there know, the world knows, and, sir, posterity will know, that it is not the eight thousand who govern the State, but the fear of the bayonet, and the fear is inspired solely by the President of the United States, as Commander-in-Chief of the Army and Navy! Disguise it, or attempt to disguise it, as we may, to this complexion doth it come at last. Yes, sir, both the eight thousand and the forty-two thousand voters are governed not by themselves, but by the bayonet! And this is at present the only government in Louisiana. The object of the present measure is to continue this hybrid, unnatural government there. It allows the meager and almost contemptible proportion of less than one sixth of the voting population to govern the whole State, and to have the influence of the whole State in our legislation here, while we know that if the military forces were withdrawn that privileged one sixth part would be swept away like chaff before the hurricane breath of the enraged majority. Sir, such a government is the merest bubble, especially if unsustained by military power. This is too obvious to need further comment.”

“All this we might possibly endure,” continued Senator Howard, “were it not that the measure before us clothes this mockery of a government, this king of shreds and patches, this mistletoe State _régime_ that falls to the earth the moment it ceases to cling around the flag-staff of the national forces, with the high attribute of voting upon and determining questions of legislation, questions of war or peace, questions of prosecuting or ceasing to prosecute the present war, in this Hall and in the Hall of the House of Representatives. This measure introduces here Senators and Representatives whose immediate friends and relatives at home have deliberately aided and assisted to put to death myriads of Union soldiers from the North, and in swelling up that vast debt of more than two thousand million dollars which now rests upon the country. Think you that such Senators and Representatives, whose constituents have already been stripped of their property by the rebel government, and brought down to the depths of poverty; a community without the habits of labor among the intelligent classes; naked, hungry, despondent and sullen; think you that their Representatives would at the present time be safe depositories of the power to tax their constituents to pay this debt? Is it not, on the other hand, the part of prudence to guard against the contingency of having that debt repudiated by such legislators and the still more disgraceful contingency of being, by their votes, aided by a Northern party, finally compelled to pay the rebel debt of $4,000,000,000? And tell me, what right has Louisiana, the majority of whose population is to-day, wherever they are, hostile to this Government and anxious for its overthrow; what right has she, upon any recognized principle of public law or justice, to be represented in Congress?”

The treatment accorded Louisiana would, he feared, be a precedent for the ten remaining States. There would be the expense of holding each for a time in military occupation to bolster up their State governments. He preferred for Louisiana and the other insurgent States a provisional establishment for regulating domestic affairs, but without representation in Congress until the mass of their people plainly perceived their error in attempting to overthrow the General Government.

Congress should, he thought, take the subject of readmission into their own hands. It was for them and not for the President to execute the important guaranty to each State of a republican form of government, and that duty became more and more urgent as the Federal armies swept on from victory to victory. In making good that guaranty the great indispensable necessity, he declared, was loyalty.[410]

Mr. Howard was followed immediately by Reverdy Johnson, of Maryland, who to the great surprise of his fellow-Democrats argued in favor of the resolution. His remarks were introduced by a concise statement of the chief political events occurring in Louisiana between the capture of New Orleans and the ratification, in September, 1864, of the new constitution. Concluding this part of his speech he said: