History of the Thirty-Ninth Congress of the United States Part 24

The motion to reconsider the postponement was carried, and the previous question called, "Shall this bill become a law, the objections of the President to the contrary notwithstanding?"

"I do not see why we need be in such a hurry," said Mr. Rogers.

"One of your own side suggested that the vote better be taken now,"

replied Mr. Ashley.

"Well, he was not in earnest, of course," said Mr. Rogers, creating some mirth by the remark.

"I hope the gentleman will make no objection," said Mr. Le Blond, addressing his remark to Mr. Rogers.

Mr. Ward suggested that "the Democrats should choose their leader, and not confuse us in this way."

Without further parley, the vote was one hundred and four in the affirmative, thirty-three in the negative, and forty-five "not voting." The Speaker then announced, "Two-thirds having voted in the affirmative, the bill has, notwithstanding the objections of the President, again pa.s.sed."

The Clerk of the House of Representatives immediately announced the action of that body to the Senate. Other business was at once laid aside, and the Veto Message was read in the Senate.

Mr. Hendricks and Mr. Saulsbury then addressed the Senate in support of the position of the President. The question being taken, thirty-three voted for and twelve against the bill. Thereupon the President _pro tempore_ announced, "Two-thirds of this body have pa.s.sed the bill, and it having been certified that two-thirds of the House of Representatives have voted for this bill, I now p.r.o.nounce that this bill has become a law."

[Ill.u.s.tration: Hon. Eben C. Ingersoll, Representative from Illinois.]

CHAPTER XIII.

FIRST WORDS ON RECONSTRUCTION.

Responsibility of the Republican Party -- Its Power and Position -- Initiatory Step -- Mr. Stevens steaks for Himself -- Condition of the Rebel States -- Const.i.tutional Authority under which Congress should act -- Estoppel -- What const.i.tutes Congress -- The First Duty -- Basis of Representation -- Duty on Exports -- Two important Principles -- Mr. Raymond's Theory -- Rebel States still in the Union -- Consequences of the Radical Theory -- Conditions to be Required -- State Sovereignty -- Rebel Debt -- Prohibition of Slavery -- Two Policies contrasted -- Reply of Mr. Jenckes -- Difference in Terms, not in Substance -- Logic of the Conservatives leads to the Results of the Radicals.

Having traced the progress through Congress of the great measures relating to civil rights and protection of the freedmen, it is now proper to go back to an earlier period in this legislative history, and trace what was said and done upon a subject which, more than any other, awakened the interest and solicitude of the American people--the subject of _Reconstruction_.

The Republican party had a majority of more than one hundred in the House, and after all its losses, retained more than two thirds of the Senate. As a consequence of this great preponderance of power, the party possessing it was justly held responsible for the manner in which the country should pa.s.s the important political crisis consequent upon the termination of the war in the overthrow of the rebellion.

It became an important question for members of the Republican party in Congress to determine among themselves what line of policy they should pursue.

The appointment of the Joint Committee of Fifteen on Reconstruction, was every-where regarded by the const.i.tuents of the majority as a most happy initiatory step. The whole country listened with eagerness to hear what words would be spoken in Congress to give some clue to the course the committee would recommend. Words of no uncertain significance and weight were uttered at an early period in the session.

On the 18th of December, a fortnight after the opening of the session, Mr. Stevens announced his opinions on reconstruction with great boldness and distinctness. At the same time, seeing himself much in advance of many of his party, and fearing lest his opinions might alarm the less resolute, he declared: "I do not profess to speak their sentiments, nor must they be held responsible for them."

Mr. Stevens opened his speech with remarks on the condition of the rebel States. He said: "The President a.s.sumes, what no one doubts, that the late rebel States have lost their const.i.tutional relations to the Union, and are incapable of representation in Congress, except by permission of the Government. It matters but little, with this admission, whether you call them States out of the Union, and now conquered territories, or a.s.sert that because the Const.i.tution forbids them to do what they did do, that they are, therefore, only dead as to all national and political action, and will remain so until the Government shall breathe into them the breath of life anew and permit them to occupy their former position. In other words, that they are not out of the Union, but are only dead carca.s.ses lying within the Union. In either case, it is very plain that it requires the action of Congress to enable them to form a State government and send Representatives to Congress. n.o.body, I believe, pretends that with their old const.i.tutions and frames of government they can be permitted to claim their old rights under the Const.i.tution. They have torn their const.i.tutional States into atoms, and built on their foundations fabrics of a totally different character. Dead men can not raise themselves. Dead States can not restore their own existence 'as it was.' Whose especial duty is it to do it? In whom does the Const.i.tution place the power? Not in the judicial branch of Government, for it only adjudicates and does not prescribe laws. Not in the Executive, for he only executes and can not make laws. Not in the commander-in-chief of the armies, for he can only hold them under military rule until the sovereign legislative power of the conqueror shall give them law.

"There is fortunately no difficulty in solving the question. There are two provisions in the Const.i.tution, under one of which the case must fall. The fourth article says: 'New States may be admitted by the Congress into this Union.' In my judgment, this is the controlling provision in this case. Unless the law of nations is a dead letter, the late war between two acknowledged belligerents severed their original compacts, and broke all the ties that bound them together.

The future condition of the conquered power depends on the will of the conqueror. They must come in as new States or remain as conquered provinces. Congress--the Senate and House of Representatives, with the concurrence of the President--is the only power that can act in the matter. But suppose, as some dreaming theorists imagine, that these States have never been out of the Union, but have only destroyed their State governments so as to be incapable of political action, then the fourth section of the fourth article applies, which says, 'The United States shall guarantee to every State in this Union a republican form of government.' Who is the United States? Not the judiciary; not the President; but the sovereign power of the people, exercised through their Representatives in Congress, with the concurrence of the Executive. It means the political Government--the concurrent action of both branches of Congress and the Executive. The separate action of each amounts to nothing either in admitting new States or guaranteeing republican governments to lapsed or outlawed States. Whence springs the preposterous idea that either the President, or the Senate, or the House of Representatives, acting separately, can determine the right of States to send members or Senators to the Congress of the Union?"

Mr. Stevens then cited authorities to prove that "if the so-called Confederate States of America were an independent belligerent, and were so acknowledged by the United States and by Europe, or had a.s.sumed and maintained an att.i.tude which ent.i.tled them to be considered and treated as a belligerent, then, during such time, they were precisely in the condition of a foreign nation with whom we were at war; nor need their independence as a nation be acknowledged by us to produce that effect."

Having read from a number of authorities to support his position, Mr.

Stevens continued: "After such clear and repeated decisions, it is something worse than ridiculous to hear men of respectable standing attempting to nullify the law of nations, and declare the Supreme Court of the United States in error, because, as the Const.i.tution forbids it, the States could not go out of the Union in fact. A respectable gentleman was lately reciting this argument, when he suddenly stopped and said: 'Did you hear of that atrocious murder committed in our town? A rebel deliberately murdered a Government official.' The person addressed said, 'I think you are mistaken.' 'How so? I saw it myself.' 'You are wrong; no murder was or could be committed, for the law forbids it.'

"The theory that the rebel States, for four years a separate power and without representation in Congress, were all the time here in the Union, is a good deal less ingenious and respectable than the metaphysics of Berkeley, which proved that neither the world nor any human being was in existence. If this theory were simply ridiculous it could be forgiven; but its effect is deeply injurious to the stability of the nation. I can not doubt that the late Confederate States are out of the Union to all intents and purposes for which the conqueror may choose so to consider them."

Mr. Stevens further maintained that the rebel States should be adjudged out of the Union on the ground of estoppel. "They are estopped," said he, "both by matter of record and matter _in pais_.

One of the first resolutions pa.s.sed by seceded South Carolina in January, 1861, is as follows:

"_Resolved, unanimously_, That the separation of South Carolina from the Federal Union is final, and she has no further interest in the Const.i.tution of the United States; and that the only appropriate negotiations between her and the Federal Government are as to their mutual relations as foreign States."

"Similar resolutions appear upon all their State and Confederate Government records. The speeches of their members of Congress, their generals and executive officers, and the answers of their Government to our shameful suings for peace, went upon the defiant ground that no terms would be offered or received except upon the prior acknowledgment of the entire and permanent independence of the Confederate States. After this, to deny that we have a right to treat them as a conquered belligerent, severed from the Union in fact, is not argument but mockery. Whether it be our interest to do so is the only question hereafter and more deliberately to be considered.

"But suppose these powerful but now subdued belligerents, instead of being out of the Union, are merely destroyed, and are now lying about, a dead corpse, or with animation so suspended as to be incapable of action, and wholly unable to heal themselves by any unaided movements of their own. Then they may fall under the provision of the Const.i.tution which says, "the United States shall guarantee to every State in the Union a republican form of government." Under that power, can the judiciary, or the President, or the commander-in-chief of the army, or the Senate or House of Representatives, acting separately, restore them to life and readmit them into the Union? I insist that if each acted separately, though the action of each was identical with all the others, it would amount to nothing. Nothing but the joint action of the two houses of Congress and the concurrence of the President could do it. If the Senate admitted their Senators, and the House their members, it would have no effect on the future action of Congress. The Fortieth Congress might reject both. Such is the ragged record of Congress for the last four years."

He cited a decision of the Supreme Court to show that "it rests with Congress to decide what government is the established one in a State,"

and then remarked: "But Congress does not mean the Senate, or the House of Representatives, and President, all acting severally. Their joint action const.i.tutes Congress. Hence a law of Congress must be pa.s.sed before any new State can be admitted or any dead ones revived.

Until then, no member can be lawfully admitted into either house.

Hence, it appears with how little knowledge of const.i.tutional law each branch is urged to admit members separately from these destroyed States. The provision that "each house shall be the judge of the elections, returns, and qualifications of its own members," has not the most distant bearing on this question. Congress must create States and declare when they are ent.i.tled to be represented. Then each house must judge whether the members presenting themselves from a recognized State possesses the requisite qualifications of age, residence, and citizens.h.i.+p, and whether the election and returns are according to law. The houses separately can judge of nothing else.

"It is obvious from all this, that the first duty of Congress is to pa.s.s a law declaring the condition of these outside or defunct States, and providing proper civil government for them. Since the conquest, they have been governed by martial law. Military rule is necessarily despotic, and ought not to exist longer than is absolutely necessary.

As there are no symptoms that the people of these provinces will be prepared to partic.i.p.ate in const.i.tutional government for some years, I know of no arrangement so proper for them as territorial government.

There they can learn the principles of freedom and eat the fruit of foul rebellion. Under such governments, while electing members to the territorial legislatures, they will necessarily mingle with those to whom Congress shall extend the right of suffrage. In territories Congress fixes the qualifications of electors, and I know of no better place nor better occasion for the conquered rebels and the conqueror to practice justice to all men and accustom themselves to make and obey equal laws."

Mr. Stevens proceeded to specify amendments to the Const.i.tution which should be made before the late rebel States "would be capable of acting in the Union." The first of those amendments would be to change the basis of representation among the States from federal numbers to actual voters. After explaining the operation of this amendment, he depicted the consequences of readmitting the Southern States without this guarantee. "With the basis unchanged," said he, "the eighty-three Southern members, with the Democrats that will in the best of times be elected from the North, will always give them the majority in Congress and in the Electoral College. They will, at the very first election, take possession of the White House and the halls of Congress. I need not depict the ruin that would follow. a.s.sumption of the rebel debt or repudiation of the Federal debt would be sure to follow; the oppression of the freedmen, the reamendment of their State const.i.tutions, and the reestablishment of slavery would be the inevitable result."

Mr. Stevens thus set forth the importance of a proposed amendment to allow Congress to lay a duty on exports: "Its importance can not well be overstated. It is very obvious that for many years the South will not pay much under our internal revenue laws. The only article on which we can raise any considerable amount is cotton. It will be grown largely at once. With ten cents a pound export duty, it would be furnished cheaper to foreign markets than they could obtain it from any other part of the world. The late war has shown that. Two million bales exported, at five hundred pounds to the bale, would yield $100,000,000. This seems to be the chief revenue we shall ever derive from the South. Besides, it would be a protection to that amount to our domestic manufactures. Other proposed amendments--to make all laws uniform, to prohibit the a.s.sumption of the rebel debt--are of vital importance, and the only thing that can prevent the combined forces of copper-heads and secessionists from legislating against the interests of the Union whenever they may obtain an accidental majority.

"But this is not all that we ought to do before these inveterate rebels are invited to partic.i.p.ate in our legislation. We have turned, or are about to turn, loose four million slaves, without a hut to shelter them or a cent in their pockets. The infernal laws of slavery have prevented them from acquiring an education, understanding the commonest laws of contract, or of managing the ordinary business of life. This Congress is bound to provide for them until they can take care of themselves. If we do not furnish them with homesteads, and hedge them around with protective laws; if we leave them to the legislation of their late masters, we had better have left them in bondage. Their condition would be worse than that of our prisoners at Andersonville. If we fail in this great duty now, when we have the power, we shall deserve and receive the execration of history and of all future ages.

"Two things are of vital importance: 1. So to establish a principle that none of the rebel States shall be counted in any of the amendments of the Const.i.tution until they are duly admitted into the family of States by the law-making power of their conqueror. For more than six months the amendment of the Const.i.tution abolis.h.i.+ng slavery has been ratified by the Legislatures of three-fourths of the States that acted on its pa.s.sage by Congress, and which had Legislatures, or which were States capable of acting, or required to act, on the question.

"I take no account of the aggregation of whitewashed rebels, who, without any legal authority, have a.s.sembled in the capitals of the late rebel States and simulated legislative bodies. Nor do I regard with any respect the cunning by-play into which they deluded the Secretary of State by frequent telegraphic announcements that 'South Carolina had adopted the amendment,' 'Alabama has adopted the amendment, being the twenty-seventh State,' etc. This was intended to delude the people and accustom Congress to hear repeated the names of these extinct States as if they were alive, when, in truth, they have now no more existence than the revolted cities of Latium, two-thirds of whose people were colonized, and their property confiscated, and their rights of citizens.h.i.+p withdrawn by conquering and avenging Rome."

A second thing of vital importance to the stability of this republic, Mr. Stevens a.s.serted to be "that it should now be solemnly decided what power can revive, recreate, and reinstate these provinces into the family of States, and invest them with the rights of American citizens. It is time that Congress should a.s.sert its sovereignty, and a.s.sume something of the dignity of a Roman senate. It is fortunate that the President invites Congress to take this manly att.i.tude. After stating, with great frankness, in his able message, his theory--which, however, is found to be impracticable, and which, I believe, very few now consider tenable--he refers the whole matter to the judgment of Congress. If Congress should fail firmly and wisely to discharge that high duty, it is not the fault of the President."

Mr. Stevens closed his speech by setting the seal of reprobation upon a doctrine which is becoming too fas.h.i.+onable, that "this is a white man's Government." He uttered a severe rebuke to those who thus "mislead and miseducate the public mind."

There were some Republicans in Congress who disagreed with Mr. Stevens in his theory of the condition of the late rebel States, yet no one ventured immediately, to use a contemporary expression, "to take the Radical bull by the horns."

At length, three days afterward, Mr. Raymond, as a representative of the "Conservatives," ventured a reply. He thus set forth his theory as in opposition to that of Mr. Stevens: "I can not believe that these States have ever been out of the Union, or that they are now out of the Union. I can not believe that they ever have been, or are now, in any sense a separate power. If they were, sir, how and when did they become so? They were once States of this Union--that every one concedes; bound to the Union and made members of the Union by the Const.i.tution of the United States. If they ever went out of the Union, it was at some specific time and by some specific act. Was it by the ordinance of secession? I think we all agree that an ordinance of secession pa.s.sed by any State of this Union is simply a nullity, because it encounters in its practical operation the Const.i.tution of the United States, which is the supreme law of the land. It could have no legal, actual force or validity. It could not operate to effect any actual change in the relations of the States adopting it to the National Government, still less to accomplish the removal of that State from the sovereign jurisdiction of the Const.i.tution of the United States.

"Well, sir, did the resolutions of these States, the declarations of their officials, the speeches of members of their Legislatures, or the utterances of their press accomplish the result? Certainly not. They could not possibly work any change whatever in the relations of these States to the General Government. All their ordinances and all their resolutions were simply declarations of a purpose to secede. Their secession, if it ever took place, certainly could not date from the time when their intention to secede was first announced. After declaring that intention, they proceeded to carry it into effect. How?

By war. By sustaining their purpose by arms against the force which the United States brought to bear against it. Did they sustain it?

Were their arms victorious? If they were, then their secession was an accomplished fact; if not, it was nothing more than an abortive attempt, a purpose unfulfilled. This, then, is simply a question of fact, and we all know what the fact is. They did not succeed. They failed to maintain their ground by force of arms; in other words, they failed to secede.

"But the gentleman from Pennsylvania [Mr. Stevens] insists that they did secede, and that this fact is not in the least affected by the other fact that the Const.i.tution forbids secession. He says that the law forbids murder, but that murders are, nevertheless, committed. But there is no a.n.a.logy between the two cases. If secession had been accomplished; if these States had gone out, and overcome the armies that tried to prevent their going out, then the prohibition of the Const.i.tution could not have altered the fact. In the case of murder the man is killed, and murder is thus committed in spite of the law.

The fact of killing is essential to the committal of the crime, and the fact of going out is essential to secession. But in this case there was no such fact. I think I need not argue any further the position that the rebel States have never for one moment, by any ordinances of secession, or by any successful war, carried themselves beyond the rightful jurisdiction of the Const.i.tution of the United States. They have interrupted for a time the practical enforcement and exercise of that jurisdiction; they rendered it impossible for a time for this Government to enforce obedience to its laws; but there has never been an hour when this Government, or this Congress, or this House, or the gentleman from Pennsylvania himself, ever conceded that those States were beyond the jurisdiction of the Const.i.tution and laws of the United States."

Referring to the citation of authorities made by Mr. Stevens, Mr.

Raymond maintained that they did not lend the "slightest countenance to the inference which was drawn from them."

In reply to the theory maintained by Mr. Stevens, that States forfeited their State existence by the fact of rebellion, Mr. Raymond said: "I do not see how there can be any such forfeiture involved or implied. The individual citizens of those States went into the rebellion. They thereby incurred certain penalties under the laws and Const.i.tution of the United States. What the States did was to endeavor to interpose their State authority between the individuals in rebellion and the Government of the United States, which a.s.sumed, and which would carry out the a.s.sumption, to declare those individuals traitors for their acts. The individuals in the States who were in rebellion, it seems to me, were the only parties who, under the Const.i.tution and laws of the United States, could incur the penalties of treason. I know of no law, I know of nothing in the Const.i.tution of the United States, I know of nothing in any recognized or established code of international law, which can punish a State as a State for any act it may perform. It is certain that our Const.i.tution a.s.sumes nothing of the kind. It does not deal with States, except in one or two instances, such as elections of members of Congress and the election of electors of President and Vice-President.