// 
 
' LIBRARY 0£jCONGRE§S. | 
 
 UNITED STATES OF AMERICA. 
 
Security and Reconciliation for the Future. 
 
 rROPOSITIONS AND ARGUMENTS 
 
 ON THE 
 
 liiorgmiiptioit rf i\)t |UkI States, 
 
 *>■ 
 
 BY 
 
 PION. CHARLES SUMNER, 
 
 It^ ^ 
 
 'i-* IJ. Z. A^ 
 
 iVWASHV^ 
 
 BOSTON: 
 
 PRESS OF GEO. C. RAND & AVERY, 3 CORNHILL 
 
 1865. 
 
Perversely and pitifully you postpone Ihat szirc period of reconciUaiion, not only between the two sec- 
 tions — not only between the men of the North and the men of the South — but, more beautiful still, between 
 the slnve and his master, without which that true tranquillity, which we all seek, cannot be permanently assured to 
 our country. Believe it; only thnnujh such reconciliation, under the sanction of Freedom, can you remove all 
 occasion of contention hereafter; only in this loay can you cut off the head of this great rebellion, and at 
 the same time extirpate that principde of evil, which, if allowed to remain, must shoot forth in perpetual dis- 
 cord, if not in other rebellions; only in this way can you command that safe victory — without which this 
 contest will be vain — which will have among its couqaests Indemnity for the Past and Security for the 
 Future — the noblest indemnity and the strongest security ever won — because founded in the redemption 
 of a race. — Oration of Mr. Sumner on the Origin and Main-Spring of the Rebellion, at New York, November 
 27, 1861. 
 
 It will not be enough if we comply with certain forms or constitute a State in name only. Much more 
 must be done, and all this must be placed under fixed and irreversible guarantees. Vain will be victory on the 
 battle-field if these guarantees are not obtained. It is to make these possible that our armies are now en- 
 gaged in the deadly shock. It is in order that the future at least may be secure, that the present is given 
 over to blood and slaughter — to graves and epitaphs. And here is the difference between your responsi- 
 bilities and those of tlie soldier. The latter sees only the present; but you must see the future also. The 
 soldier meets the enemy face to face. The statesman, by wise precautions, provides that the enemy once con- 
 quered shall never rise again. Vain is the work of the soldier, if it be not consummated and crowned by 
 the wisdom of the statesman. — Speech of Mr. Sumner in the Senate of the United States, .June 13, 1864. 
 
PROPOSITIONS ON RE-ORGANIZATION. 
 
 In the Senate of the United States, Feb. 
 11, 1862, Mr. Sumner submitted the follow- 
 ing resolutions, which were ordered to be 
 printed : — 
 
 Resolutions (leclarntory of the, relations bettneen the 
 United States and the territory once occupied by 
 certain States, and now usurped by j)rctended gov- 
 ernments toithout constitutional or legal right. 
 
 Whe7-eas certain States, ri[/JiffulIi/ helonginq 
 to the Union of the United States, have through 
 their respective governments wickedly under- 
 taken to abjure all those duties by which their 
 connection with the Union was maintained ; to 
 renounce all allegiance to the Constitution ; 
 to levy war upon the National Govern- 
 ment ; and, for the consummation of this 
 treason, have unconstitutionally and unlawfully 
 confederated together, with the declared pur- 
 pose of putting an end by force to the supremacy 
 of the Constitution within their respective lim- 
 its; and whereas this condition of insurrection, 
 organized by pretended governments, openly 
 exists in South Carolina, Georgia, Florida, Ala- 
 bama, Mississippi, Louisiana, Texas, Arkansas, 
 Tennessee, and Virginia, except in Eastern 
 Tennessee and Western Virginia, and has been 
 declared by the President of the United States, 
 in a proclamation duly made in conformity 
 with an act of Congress, to exist throughout 
 this territory, with the exceptions already 
 named ; and whereas the extensive territory, 
 thus usurped by these pretended < governments 
 and organized into a hostile confederation, he- 
 longs to the United States, as an inseparable part 
 thereof, under the sanctions of the Constitution, 
 to be held in trust for the inhabitants in the 
 present and future generations, and is so 
 completely interlinked with the Union that it 
 is forever dependent thereupon ; anil whereas 
 the Constitution, which is the supreme laic of the 
 land, cannot he displaced in its rightful operation 
 within this territory, but must ever continue the 
 supreme law thereof, notwithstanding the doings 
 of any pretended governments acting singly or 
 
 in confederation, in order to put an end to its 
 supremacy : therefore, — 
 
 1. Resolved, That any vote of secession or 
 other act by which any State may undertake 
 to put an end to the supremacy of the Consti- 
 tution within its territory is inoperative and 
 void against the Constitution, and when sustained 
 by force it becomes a practical abdication by 
 the State of all rights under the Constitution, 
 while the treason which it involves still further 
 works an instant forfeiture of all those func-_ 
 tions and powers essential to the continued 
 existence of the State as a body poHtic ; so that 
 fi'om that time forward the territory falls under 
 the exclusive jurisdiction of Congress, as other 
 territory, and the State becomes, according to 
 the language of the law, felo-de-se. 
 
 2. That "any combination of men assuming 
 to act in the place of such State, and attempt- 
 ing to iusnare or coerce the inhabitants thereof 
 into a confederation hostile to the Union, is re- 
 bellious, treasonable, and destitute of all moral 
 authority ; and that ,^uch combination is a usur- 
 pation incapable of any constitutional existence 
 and utterly lawless, so that every thing dependent 
 upon it is without constitutional or legal support. 
 
 3. That the termination of a State under the 
 Constitution necessarily causes the termination 
 of those peculiar local institutions which, hav- 
 ino- no oi-isiin in the Constitution or in those 
 natural rights which exist independent of the 
 Constitution, arfi upheld by the sole and exclft- 
 sive authority of the State. 
 
 4. That Slavery, being a peculiar local in- 
 stitution, derived from local laws, without any 
 origin in the Constitution or in natural rights, is 
 upheld by the sole and exclusive authority of 
 the State", and nmst therefore cease legally or 
 constitutionally when the State on which it de- 
 pends has lapsed ; for the incident must follow 
 the principal. 
 
 5. That, in the exercise of its exclusive ju- 
 risdiction over the territory once occupied by 
 the- States, it is the duty of Congress to see 
 that the supremacy of the Constitution is 
 maintained in its essential principles, so that, 
 everywhere in this extensive territory, Slavery 
 
ghall cease to exist practically, as it has already 
 ceased to exist constitutionally or legally. 
 
 6. That any recognition of Slavery in such 
 territory, or any surrender of slaves under the 
 pretended laws of such States, by any officer of 
 the United States, civil or military, is a recog- 
 nition of the pretended governments, to the 
 exclusion of the jurisdiction of Congress under 
 the Constitution, and is in the nature of aid 
 and comfort to the rebellion that has been 
 organized. 
 
 7. That any such recognition of Slavery, 
 or surrender of pretended slaves, besides 
 being a recognition of the pretended govern- 
 ments, giving them aid and comfort, is a 
 denial of the rights of persons who, by the 
 action of the States, have become free, so 
 that, under the Constitution, they cannot 
 again be enslaved. 
 
 8. That allegiance from the inhabitant and 
 protection from .the Government are corre- 
 sponding obligations, dependent upon each 
 other, so that while the allegiance of every 
 inhabitant of this territory, without distinction 
 of color or class, is due to the United States, 
 and cannot in any way be defeated by the 
 action of any pretended government, or by any 
 pretence of property or claim to service, the 
 corresponding obligation of protection is at 
 the same time due by the United States to 
 every such inhal)itant, without distinction of 
 color or class ; and it follows that inliabitants 
 held as slaves, whose ])aramount allegiance is 
 due to the United States, may justly look to 
 the National Government for protection. 
 
 9. That the duty directly cast upon Con- 
 gress by the action of the States is re-enforced 
 by the positive prohibition of the Constitution 
 that " no State shall enter into any confedera- 
 tion," or " without the consent of Congress 
 keep troops or ships-of-war in time of peace, or 
 enter into any agreement or conijiact with 
 another State," or " grant letters of marcpie 
 and reprisal," or " coin money," or " emit bills 
 of credit," or " without the consent of Congress 
 lay any duties on imports or exports," all of 
 which have been done by these pretended gov- 
 ernments, and also by the positive injunction 
 of the Constitution, addressed to the nation, 
 that " the United States shall guarantee to 
 every State in this Union a republican form of 
 government ; " and that, in pursuance of this 
 dutv cast upon Congress, and further enjoined 
 by the Constitution, Congress trill assume com- 
 p'leie jurmliction of such vacated territory where 
 such unconstilutional and illegal things have 
 been attempted, and will proceed to establish 
 therein republican forms of government under 
 the Constitution ; and, in the execution of this 
 trust, will provide carefully for the protection 
 of all the inhabitants thereof, for the security of 
 families, the organization of labor, the encour- 
 agement of industry, and the welfare of society, 
 and will in every way discharge the duties of 
 a just, merciful, and paternal government. 
 
 § 2. 
 
 In the Senate, Feb. 8, 1864, Mr. Sumnek 
 submitted the following resolutions, which 
 were ordered to be printed : — 
 
 llESOLUTiONS defining the character of the Kational 
 contest, and protestinr/ against any premature 
 restoration of rebel States without proper guaran- 
 ties and safeguards against slavery and fur the 
 protection of ihefreedmen. 
 
 1. Resolved, That, in order to determine the 
 duties of the National Government at the pres- 
 ent moment, it is of the first importance that 
 we should see and understand the real charac- 
 ter of the contest which has been forced upon 
 the United States ; for a failure to appreciate 
 this contest must end in a failure of those proper 
 efforts which are essential to the re-establish- 
 ment of unity and concord ; that, recognizing 
 the contest in its real character, as it must be 
 recoi'ded bj^ history, it will be apparent beyond 
 controversy, that this is not an ordinary rebel- 
 lion, or an ordinary war, but that it is absolute- 
 ly without precedent, diftering clearly from 
 every other rebellion and every other war, — 
 inasmuch as it is an audacious attempt, for the 
 first lime in history, to found a tvickcd poiver on 
 the corner-stone of Slavery ; and that such an 
 attempt, having this single object, — whether re- 
 garded as rebellion or as war, — is so completely 
 penetrated and absorbed, so entirely filled and 
 possessed by Slavery, that it can be justly re- 
 garded as nothing else than the huge imper- 
 sonation of this crime, at once rebel and belli- 
 gerent, or, in other words, as Slavery in a?-ms. 
 
 2. That, recognizing the unquestionable 
 identity of the Rebellion and of Slavery, so 
 that each is to the other as another self, it 
 becomes plain that the Rebellion cannot be 
 cryshed without crushing Slavery, as Slavery 
 cannot be crushed witiiout crushing the Rebel- 
 lion ; that every forbearance to the one is a for- 
 bearance to the other, and every blow at the 
 one is a blow at the other ; that all who tolerate 
 Slavery tolerate the Rebellion, and all who 
 strike at Slavery strike at the Rebellion ; and 
 that, therefore, it is our supremest duty, in 
 which all other present duties are contained, to 
 take care that the Barbarism of Slavery, in 
 which alone the Rebellion has its origin and 
 life, is so utterly trampled out that it can never 
 spring up again anywhere in the rebel and belli- 
 gerent region ; for, leaving this duty undone, 
 nothing is done, and all our blood and treasure 
 have been lavished in vain. 
 
 3. That, in dealing with the rebel war, the 
 National Government is invested with two 
 clssses of rights — one the rights of sovereignty, 
 inherent and indefeasible everywhere within 
 the limits of the United States, and the other 
 the rights of icar, or belligerent rights, which 
 have been superinduced by the nature and ex- 
 tent of the contest ; that, by virtue of the rights 
 of sovereignty, the rebel and belligerent region 
 
is now subjoct to the National Government as 
 its only rightful government, bound under the 
 Constitution to all the duties of sovereignty, 
 and by special mandate bound also " to guar- 
 antee to every State a republican ibrm of gov- 
 ernment, and to protect it against invasion;" 
 thatj^bv virtue of the rights of war, this same 
 regimi is subject to all the conditions and inci- 
 dents of war, according to tlie established usages 
 of Christian nations, out of wliich is derived the 
 familiar maxim of public duty, " Indemnity for 
 the past and security for the future." 
 
 4. That, in seeking the restoration of the 
 States to their proper places as members of the 
 
 ^Republic, so that every State shall enjoy again 
 its constitutional functions, and every star on 
 our national Hag shall represent a State, in re- 
 ality as well as in name, cai^e Jiiust be taken tliat 
 the RehelUo7i is not alloifed, through any negli- 
 gence or mistaken concession, to retain the least 
 foothold for future qctivitg, or the least germ of 
 future life: that, whether proceeding by the 
 exercise of sovereign rights or of belligerent 
 rights, the same precautions must be exacted 
 against future peril ; that, therefore, any sys- 
 tem of " reconstruction " must be rejected, 
 which does not provide by irreversible guaran- 
 ties against the continued existence or possible 
 revival of Slavery, and that such guaranties can 
 he primarily obtained only through die agency of 
 the National Gnvermnent, u-hich to this end must 
 assert a temporary supremacy, military or civil, 
 throughout the rebel and belligerent region, of 
 sufficient duration to stamp upon this region the 
 character of freedom. 
 
 5. That, in the exercise of this essential su- 
 premacy of the National Government, a solemn 
 duty is cast upon Congress to see that no rebel 
 State is prematurely restored to its constitutional 
 
 functions until, within its bordei'S, all prober 
 safeguards are established, so that loyal citizens, 
 including the new-made freedmen, cannot at any 
 time be molested by evil-disposed persons, and es- 
 pecially tliat no man there may be made a 
 slave ; that this solemn duty belongs to Con- 
 gress under the Constitution, whether in the 
 exercise of Rights of Sovereignty or Rights of 
 War, and that in its performance that system 
 of " reconstruction " will be found the best, 
 howsoever it may be named, which promises 
 most surely to accomplish the desired end, so 
 that Slavery, which is the synonyme of the Re- 
 bellion, shall absolutely cease throughout the 
 whole rebel and belligerent region, and the 
 land which it has maddened, impoverished, and 
 degraded, shall become safe, fertile, and glori- 
 ous, from assured emancipation. 
 
 6. That, in the process of " reconstruction," 
 it is not enough to secure the death of Slavery 
 throughout the rebel and belligerent region 
 only ; that experience testifies against Slavery 
 wherever it exists, not only as a crime against 
 humanity, but as a disturber of the public peace 
 and the spoiler of the public liberties, including 
 the liberty of the press, the liljcrty of speech. 
 
 and the liberty of travel and transit ; that ob- 
 viously, in the progress of civilization, it has 
 become incompatible with good government, 
 and especially with that " i-epublican form of 
 government " which the United States are 
 bound to guarantee to every State ; that from 
 the outbreak of this rebel war, even in States 
 professing loyalty, it has been an open check 
 upon patriotic duty and an open accessory to 
 the Rebellion, so as to be a source of uncjues- 
 tionable weakness to the national (.-ause ; that 
 the defiant pretensions of the master, claiming 
 the control of his slave, are in direct conllict 
 with the paramount rights of the National Gov- 
 ernment ; and that, theretbre, it is the further 
 duty of Congress, in the exercise of its double 
 powers under the Constitution, as guardian of 
 the national safety, to take all needful steps 
 to secure the extinction of Slavery, even in 
 States professing loyalty, so that this crime 
 against humanity, this disturber of the public 
 peace, and this spoiler of the public liberties, 
 shall no longer exist anywhere to menace the 
 general harmony ; that civilization may be no 
 longer shocked ; that the constitutional guaranty 
 of a republican form of government to every 
 State may be fulfilled ; that the Rebellion may 
 be deprived of the traitoi-ous aid and comfort 
 which Slavery has instinctively volunteered ; 
 and that the master, claiming aii unnatural 
 property in human flesh, may no longer defy 
 the National Government. 
 
 7. That, in addition to the guaranties stipu- 
 lated by Congress, and as the cap-stone to its 
 work of restoration and reconciliation, the Con- 
 stitution itself must be so amended as to pro- 
 hibit Slavery everywhere within the limits of 
 the Republic ; that such a prohibition, leaving 
 all j)ersonal claims, whether of slave or master, 
 to the legislation of Congress and of the States, 
 will be in itself a sacred and inviolable guaran- 
 ty, representing the collective will of the peo- 
 ple of the United States, and placing Universal 
 Emanci|)ation under the sanction of the Consti- 
 tution, so that li'cedom shall be engraved on 
 every loot of the national soil, and be Avoven 
 into every star of the national Hag, while it 
 elevates and inspires our whole national exist- 
 ence, and the Constitution, so often invoked for 
 Slavery, but at last in harmony with the Dec- 
 laration of Independence, will become, accord- 
 ing to the holy aspirations of its founders, the 
 sublime guardian of the inalienable right of 
 every human being to life, liberty, and the 
 pursuit of liappiness ; all of which must be done 
 in the name of the Union, in duty to humanity, 
 and for the sake of permanent peace. 
 
 §3. 
 
 In the Senate, Fob. 8, 1864, Mii. Sum- 
 ner submitted the follcwing amendment to the 
 Constitution, which was referred to the Com- 
 
mittee of the Judiciary, and ordered to be 
 printed : — 
 
 Amendment of the Constitittion, securing Equal- 
 ity before the law, and the Abolition of Slavery. 
 
 " All persons are equal before the law, so 
 that no person can hold anotlier as a slave ; and 
 the Congress shall have power to make all laws 
 necessary and proper to carry this declaration 
 into effect everywhere within the United States 
 and the jurisdiction thereof." 
 
 §4. 
 
 In the Senate, Feb. 8, 18G4, Mr. Sum- 
 ner asked, and, by unanimous consent, ob- 
 tained, leave to l)ring in the following bill, 
 which was read twice, and referred to the Select 
 Committee on Shivery and Freedmen : — 
 
 A Bill to secure Kf/ualit;/ be/ore the law in the courts 
 of the United States. 
 
 Be it enacted hy the Senate., and House of Rep- 
 resentatives, of the United States of America, in 
 Congress assembled, That, in the courts of the 
 United States, there shall be no exclusion of any 
 witness on account of color. 
 
 Tliis bill was nfterw.irds reported by Mit. Sumner, 
 from the Select Coiniiiiltee on Slavery and Freedmen, 
 accompanied by an elaborato report exhibiting the ex- 
 tent and injustice of this exclusion. It was afterwards 
 moved by Mr. Sumner on an Appropriation Bill, and 
 is now tlie lav? of the land. It remains to a2>ply this 
 principle to the State Courts. 
 
 §5. 
 
 In tue Senate, May 27, 18G4, while the 
 Senate had under consideration the credentials 
 of certain claimants as senators from Arkansas, 
 Mr. Sumner offered the following resolution, 
 wliich at a subsequent day was, on his motion, 
 referred to the Committee of the Judiciary to 
 which the credentials of the claimants were 
 referred : — 
 
 Resolution drrlnrinr/ tlmt a, rebel State has no title to 
 representdtiini until it has been re-admitted by a 
 vote of both Houses of Congress. 
 
 Resolved, That a State pretending to secede 
 from the Union, and battling against the Na- 
 tional Government to maintain this pretension, 
 must be regarded as a rebel State, subject to 
 military occupation, and ivithout title' to rejire- 
 seniation on this floor until it has been re-admitted 
 hy a vote of both Houses of Congress ; and the 
 Senate will decline to entertain any application 
 for any such rebel State until after such vote 
 of both Houses of Congress. 
 
 §6. 
 
 In tue Senate, Feb. 4, 18G5, Mr. Sum- 
 ner submitted the following concurrent reso- 
 lutions, which, on his motion, were ordered 
 to be printed : — 
 
 Concurrent Resolutions declaring the rule in as- 
 certaining the three-fourths oj the several States re- 
 quired in tlie ratification of a constitutional amend- 
 ment. 
 
 Whereas Congress, by a vote of two-thirds of 
 both houses, has proposed .an amendment to 
 the Constitution prohibiting slavery through- 
 out the United States, which, accoi'ding to the 
 existing requirement of the Constitution, will 
 be valid to all intents and pur[)oses as part of 
 the Constitution, when ratified by the legisla- 
 tures of three -fourths of the several States ; 
 and whereas, in the condition of the country, 
 with certain States in arms against the Nation- 
 al Government, it becomes necessary to deter- 
 mine what number of States constitutes the 
 three-fourths required by the Constitution 
 therefore, — 
 
 1. Resolved hy the Senate, — the House of 
 Representatives concurring, — That the rule 
 followed in ascertaining the two-thirds of both 
 houses proposing the amendment to the Consti- 
 tution should be followed in ascertaining the 
 three-fourths of the several States ratifying the 
 amendment; that, as in the first case, the two- 
 thirds are founded on the simple fact of repre- 
 sentation in the two houses, so, in the second 
 case, the three-fourths must be founded on the 
 simple fact of representation in the government 
 of the country, and the support thereof; and that 
 any other rule establishes one basis for the prop- 
 osition of the amendment and another for its rat- 
 ification, placing one on a simple fact and the 
 other on a claim of right, while it also recog- 
 nizes the power of rebels in arms to interpose a 
 veto upon the National Government in one of 'its 
 highest functions. 
 
 2. That all acts, executive and legislative, in 
 pursuance of the Constitution, and all treaties 
 made under the authority of the United States, 
 are valid to all intents and purposes through- 
 out the United States, although certain rebel 
 States fail to participate therein ; and that the 
 same rule is equally applicable to an amend- 
 ment of tlie Constitution. 
 
 3. That the amendment of the Constitution, 
 prohibiting Slavery throughout the United 
 States, will be valid, to all intents and purposes, 
 as part of the Constitution, whenever ratified 
 by three-fourths of the States de facto exercis- 
 ing the powers and prerogatives of the United 
 States under the Constitution thereof. 
 
 4. That any otiier rule, requiring the parti- 
 cipation of the rebel States, while illogical and 
 unreasonable, is dangerous in its consequences, 
 inasnmch as all recent Presidential proclama- 
 tions, including that of emancipation, also all 
 
recent acts of Congress, includinct those creat- 
 ing the national debt and establishing a na- 
 tional currency, and also all recent treaties. 
 
 inpliidino- tlio ti-pnfv with Great Britain for the* t'lt'ves must be apportioned accorrtnig to the actual 
 including tnc lieatv wiui VTieat iMitam loi ^^^k We<-/o»-s, which would make it for the interest of a state 
 
 extinction of the slave trade, havM been made, 
 enacted, or ratified respectively •without any 
 participation of the rebel States. 
 
 5. That any other rule must tend to post- 
 pone the great day when the Prohibition of 
 Slavery will be valid to all intents and purposes 
 as part of the Constitution of the United States ; 
 but the rule herewith declared will assure the 
 immediate ratification of the prohibition and 
 the consummation of the national desires. 
 
 At a subsequent day this question was dis- 
 cussed collaterally, in the debate on the recog- 
 nition of Louisiana, when Mr. Sumner said, 
 in reply to another senator, as follows : — 
 
 He says the vote of Louisiana is needed. 
 Sir, the vote of Louisiana is not needed ; and 
 when the senator makes that assertion it is in- 
 terposing an obstacle to the adoption of the 
 constitutional amendment. Is he a friend to 
 the constitutional amendment ? Why, then, 
 does he interpose an obstacle to it by foisting 
 an untenable and erroneous interpretation on 
 the Constitution of the United States '? The 
 Constitution declares that a constitutional 
 amendment shall become to all intents and pur- 
 poses a part of the Constitution when it shall 
 be ratified by the Legislatures of three-fourths 
 of the several States ; but if no Legislatures ex- 
 ist in States, is the senator going to make that 
 an excuse for avoiding the establishment of that 
 constitutional amendment ? Sir, I will not 
 recognize the rebellion to that extent ; I will 
 not recognize the independence of the' rebcsl 
 States as the senator from Wisconsin does. I 
 insist that these rebel States shall not control 
 tlie National Government at this moment, in 
 this great period of our history, and thwart the 
 establishment of human freedom throughout the 
 land. 
 
 §7. 
 
 In the Senate, Feb. 6, 1865, Mr. Sumner 
 submitted the following amendment to the 
 Constitution, which, on his motion, Avas re- 
 ferred to the Committee of the Judiciary : — 
 
 Amendment to the Constiution, apportioiiing 
 representativeif in Congress according to the num- 
 her of actual electors. 
 
 " Representatives shall be apportioned 
 among the sevei-al States which may be in- 
 cludetl within this Union according to the num- 
 ber of male citizen.^ of age hainng in, each State 
 the t/ualificaiions requisite for electors of tlie 
 most numerous branch of the State Legisla- 
 ture. The actual enumeration of such citizens 
 sliall be made by the census of the United 
 States." 
 
 Fn submitting this amendment, Mr. Sumner re- 
 marked, that one of two alternatives was open : The 
 suffrage must be secured to the new-made freedinen, 
 which was the just course, or the number of represen- 
 tatives must be apportioned according to the actual 
 
 to extend the franchise. Without one of these meas- 
 ures the political power of the old slave-masters would 
 be enlarged by the Proclamatiou of Emancipation. 
 
 §8. 
 
 In the Senate, Feb. 26, 1865. While 
 the resolution of the Judiciary Committee, 
 recognizing the State Government of Louisi- 
 ana, was under consideration, Mr. Sumner in- 
 troduced the following resolutions, which, on 
 his motion, jWere ordered to be printed : — 
 
 Resolutions declarinr/ the dvt;i of the Vnitcd states 
 to guarantee repiilili''-iii ijai-i Dinh iits h) tlie rcfjcl 
 States, on the basis <;'' tlic I>i rtuniiinn «f Imli pcnd- 
 ence ; so that the neingorerinuents sliall be fonuded 
 on the consent of tlie governed, and the equality of 
 all j)ersons before the law. 
 
 1. Resolved, That it is the duty of the United 
 States, at the earliest practicable moment con- 
 sistent with the common defence and the gen- 
 eral welfare, to re-establish by act of Congress 
 republican governments in those States where 
 loyal governments have been vacated by the 
 existing rebellion, and thus, to tlie full extent 
 of their power, fulfil the requirement of the 
 Constitution, that " the United States shall 
 guarantee to every State in this Union a repub- 
 lican form of govQ^'ument." 
 
 2. That this important duty is imposed by 
 the Constitution, in express terms, on " the Uni- 
 ted States," and not on individuals or classes 
 of individuals, or on any military commander 
 or executive ofiicer, and cannot be intrusted to 
 any such persons, acting, it may be, for an oli- 
 garchical class, and in disregard of large num- 
 bers of loyal peoj)le ; but it must be performed 
 by the United States, represented by the Presi- 
 dent and both Houses of Congress, acting for 
 the whole people thereof 
 
 3. That, in determining the extent of this 
 duty, and in the absence of any precise defini- 
 tion of the term " republican form of govern- 
 ment," we cannot err, if, when called to per- 
 form this guaranty under the Constitution, we 
 adopt the self-evident truths of the Declaration 
 of Independence as an authoritative rule, and 
 insist that in evd'ry re-estal)lished State the 
 consent of the governed shall be the only just 
 foundation of government, and all persons shall 
 be ecjual before the law. 
 
 4. That, independent of the Declaration of 
 Independence, it is plain that any duty imposed 
 by the Constitution must be pertbrmed in con- 
 formity with justice and reason, and in the. 
 light of existing facts; that therefore, in the 
 performance of this guaranty, there can be 
 no power under the Constitution to disfranchise 
 loyal people, or to recognize any such disl'ran- 
 
cliisement, especially when it may hand over 
 the loyal majority to the jijovernment of the 
 disloyal minoi-ity ; nor can there be any power 
 under the Constitution to discrnninate in favor ^, 
 of the Rebellion by admitting to the electoral l|p^ 
 franchise rebels who have forfeited all rights, 
 and by excluding loyal persons who have never 
 forfeited any right. 
 
 5. That the Uuited States, now called at a 
 crisis of histoi-y to perform this guaranty, will 
 fail in duty under the Constitution, should they 
 allow the re-establishment of any State with- 
 out proper safeguards for the rights of all the 
 citizens, and especially without making it im- 
 possible for rebels now in arms against the Na- 
 tional Government to trample upon the rights 
 of those who are now fighting the battles of 
 the Union. 
 
 6. That the path of justice is also the path 
 of peace, and that tor the sake of peace it is 
 better to oliey the Constitution, and, in con- 
 formity with its requirements in the perform- 
 ance of the guaranty, to re-establish State 
 govei'nments on the consent of the governed, 
 and the equality of all persons before the law, 
 to the end that the foundations thereof may be 
 permanent, and that no loyal majorities may 
 be again overthrown or ruled by any oligarchi- 
 cal class. 
 
 7. That a government founded on military 
 power, or having its origin in military orders, 
 cannot be a " republican form of government " 
 according to the recjuirement of the Constitu- 
 tion ; and that its recognition will be contrary 
 not only to the Constitution, Jbut also to that es- 
 sential principle of our Government which, in 
 the language of Jefferson, establishes " the su- 
 premacy of the civil over the military authority." 
 
 8. That, in the States whose governments 
 have already been vacated, a government 
 founded on an oligarchical class, even if erro- 
 neously recognized as a " repul)lican form of 
 govei'nment " under the guaranty of the Con- 
 stitution, cannot sustain itself securely Avithout 
 national support ; tliat such an oligarchical 
 government is not competent at this moment 
 to discharge the duties and execute the powers 
 of a State ; and that its recognition as a legiti- 
 mate government will tend to enfeeble the 
 Union, to postpone the day of reconciliation, 
 and to endanger the national tranquillity. 
 
 9. That considerations of ex|)ediency are 
 in harmony with the requirements of the Con- 
 stitution and the dictates of justice and reason, 
 especially now, when colored soldiers have 
 shown their military value ; that as their mus- 
 kets 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. 
 
 Mr. SuMNKH g.ave notice that at the proper time he 
 shouUl move tliese resolutions as a substitute for the 
 resolution of the Committee. But before the proper 
 time the whole subject was postponed. 
 
 §9. 
 
 Ix THE Senate, Feb. 26, 1865. While 
 the resolution for the recognition of the State 
 Governraenn| of Louisiana was under con- 
 sideration, Mr. Sumner moved the following 
 Proviso : — 
 
 PROyiso, that in Louisiana there shall be no denial of 
 the electoral franchise or of any other rights on ac- 
 count of color. 
 
 Provided, That this shall not take effect, ex- 
 cept upon the fundamental condition tltat with- 
 in the Stale there shall he no denial of the 
 electoral franchise or of any other rights on ac- 
 count of color or race, but all persons shall be equal 
 before the law. And the Legislature of the 
 State, by a solemn public act, shall declare the 
 assent of the State to this fundamental con- 
 dition, and shall transmit to the President of 
 the United States an authentic copy of such 
 assent whenever the same shall be adopted, 
 upon the,receii)t whereof he shall, by proclama- 
 tion, announce the fact ; whereupon, without 
 any further proceedings on the part of Con- 
 gress, this joint resolution shall take effect. 
 
 While this proviso was under consiileration, and be- 
 fore the vote was taken, the whole subject was post- 
 poned. Mr. SuMNiiK insisted in debate that it was 
 according to the precedent in tlie case of Missouri, 
 which was admlited into the Union only " on a certain 
 condition," set forth in a Resolution of Congress. It 
 was jirovided that the Legislature of the State, by a 
 solemn public act, should declare its assent to what 
 was called a " fundamental condition," before the ad- 
 mission of the State should be ''considered complete." 
 This precedent is strictly ai)plieable now. We too 
 should fix a " fundamental condition" to the restora- 
 tion of l^ouisiana. 
 
 §10. 
 
 In the Senate, March 8, 1805, Mr. 
 Summer submitted the following resolution, 
 which, on his motion, was ordered to be 
 printed. The Senate at this time had under 
 consideration the credentials of the claimants, 
 as senators from Louisiana and Arkansas : — 
 
 Resolution declaring three conditions precedent to 
 the reception of senators from a rebel State. 
 
 Resolved, That where a State has been de- 
 clared to be in insurrection, no person can be 
 recognized as senator from such State, or as 
 claimant of a seat as senator from such State, 
 until after the occurrence oi' three several condi- 
 tions : first, the cessation of all armed hostility 
 to the United States within the limits of such 
 State; secondly, the, adoption by such State of 
 a constitution of government rejjublican in form, 
 and not repugnant to the Constitution and laws 
 of the United States; and, thirdly, an act of 
 Congress declaring that the people of such State 
 are entitled to representation in the Congress of 
 the United States. 
 
ARGUMENTS ON. RE-OEGANIZATION. 
 
 §1. 
 
 THE POAVER OF CONGRESS 
 THE REBEL STATES. 
 
 OYER 
 
 [This arLTuniont appoared nri;;uially as an article in 
 the Atlantic ^[,nlthl;| M'/ii/miiie Cor October, 18(53, under 
 tlie title, Our Domestic Relations; or, How to treat the 
 Rebel States.] 
 
 At this moment our domestic relations all 
 hinge upon one question: How to treat the Rebel 
 States. No patriot citizen doubts the triumph 
 of our arms in the suppression of the Rebellion. 
 Early or late, this triumpli is inevitable. It may 
 be by a sudden collapse of the bloody imposture, 
 or it may be by a slower and more gradual sur- 
 render. For ourselves, we are prepared for 
 either alternative, and shall not be disappointed 
 if we are constrained to wait yet a little longer ; 
 but when the day of triumph comes, political 
 duties will take the place of military. The 
 victory won by our soldiers must be assured by 
 wise counsels, so that its hard-earned fruits may 
 not be lost. 
 
 The relations of the States to the National 
 Government must be carefully considered, — 
 not too boldly, not too timidly, — in order to see 
 in what way or by what process the transition 
 from rebel forms may be most surely accom- 
 ])lished. If I do not greatly err. it will be found 
 that the powers of Congress, which have thus 
 far been so effective in raising armies and in 
 supplying moneys, will be important, if not 
 essential, in fixing the conditions of perpetual 
 peace. But there is one point on which there 
 can be no question. The dogma and delusion 
 of State rights, which did so much for the Re- 
 bellion, must not be allowed to neutralize all 
 that our arms have gained. 
 
 Already, in a remarkable instance, tlie Presi- 
 dent has treated the pretension of State rights 
 with proper indifference. Quietly and without 
 much discussion, he has constituted military 
 governments in the rebel States, with gov- 
 ernors nominated by himself: all of which 
 testifies against the old pretension. Strange 
 will it be if this extraordinary power, amply 
 conceded to the President, is denied to Con- 
 gress. Practically the whole question with 
 which I began is opened here. Therefore to 
 this aspect of it I ask your first attention. 
 
 CONGRESSIONAL GOVERNMENT VS. MILITARY 
 GOVERNMENT. 
 
 Four military governors have been already 
 appointed : one for Tennessee, one for South 
 Carolina, one for North Carolina, and the other 
 for Louisiana. So far as is known, the ap- 
 pointment of each was by a simple letter from 
 the Secretary of War. But if this can be done 
 in four States, where is the limit? It may be 
 done in every rebel State ; and, if not in every 
 other State of the Union, it will be simply be- 
 cause the existence of a valid State govern- 
 ment excludes the exercise of this extraordinary 
 power. I>ut assuming, that, as our arms pre- 
 vail, it will be done in every rebel State, we 
 shall then have eleven military governors, all 
 deriving their authority from one source, ruling 
 a population amounting to upwards of nine mil- 
 lions. And this imperatorial dominion, indefi- 
 nite in extent, will also be indefinite induration ; 
 for if, under tlie Constitution and laws, it be 
 proper to constitute such governors, it is cigar 
 that they may* be continueil without regard to 
 time, — for years if you please, as well as for 
 weeks ; and the whole region which they are 
 called to sway will be a military empire, with 
 all powers, executive, legislative, and even 
 judicial, derived from one man in Washington. 
 Talk of the " one-nian power ! " Here it is with 
 a vengeance. Talk of military rule ! Here It 
 is, in the name of a republic. 
 
 The bare statement of this case may put us 
 on our guard. We may well hesitate to organ- 
 ize a single State under a military government, 
 when we see wliere such a step will lead. If 
 you approve one, you must approve all, and the 
 National Government may crystallize Into a 
 military despotism. 
 
 In appointing. military governors of States, 
 we follow an aj)proved example in certain cases 
 beyond the jurisdiction of our Constitution, as 
 in California and Mexico after their conquest 
 and before peace. It is evident that in these 
 cases there was no constraint from the Consti- 
 tution, and we were perfectly free to act ac- 
 cording to the assumed exigency. It may be 
 proper to set up military governors for a con- 
 quered country beyond our civil jurisdiction, 
 and }'et it may be (questionable if we should 
 
10 
 
 undertake to set up such governors in States 
 which we all claim to be «rithin our civil juris- 
 diction. At all events, the two cases are 
 different, so that it is not easy to argue from 
 one to the other. 
 
 In Jefferson's inaugural address, where he 
 develops what he calls " the essential principles 
 of our government, and consequently those 
 which ought to shape its administration," he 
 mentions " the supremacy of the civil over the 
 military authority" as one of these "essential 
 principles," and then says, — 
 
 " These should be the creed of our political 
 faith, the text of civil instruction, the touch- 
 stone by which to try the services of those 
 we trust ; and should we wander from them in 
 moments of error or alarm, let us hasten to re- 
 trace our steps, and to regain the road which 
 alone leads to peace, liberty, and safety." 
 
 In undertaking to create military governors 
 of States, we reverse the policy of the republic, 
 as solemnly declared by Jefferson, and subject 
 the civil to the military authority. If this has 
 been done, in patriotic ardor, without due con- 
 sideration, in a moment of error or alarm, it 
 only remains, that, according to Jefferson, we 
 should " hasten to retrace our steps, and to re- 
 gain the road which alone leads to peace, liberty, 
 and safety." 
 
 There is nothing new under the sun, and 
 the military governors whom we are beginning 
 to appoint find a prototype in the Protectorate 
 of Oliver Cromwell. After tlie execution' of 
 the king and the establishment of the Common- 
 wealth, the Protector conceived the idea of 
 parcelling the kingdom into military districts, 
 of which there were eleven; being precisely 
 the number which it is now proposed, under the 
 favor of success, to establish among us. Of 
 this system, a great authority, Mr. Hallam, in 
 his " Constitutional History of England," speaks 
 thus : — 
 
 " To govern according to law may sometimes be an 
 usurper's wish, but can selrlom be in liis ]jo\ver. The 
 Protector abandoned all thought of it. Dividing tlie 
 kingdom into districts, he placed at the head of each a 
 major-general, as a sort of military magistrate, re- 
 sponsible for the subjection of his prefecture. These 
 were eleven in number, men bitterly hostile to the 
 royalist party, and insolent towards all civil au- 
 thority." * 
 
 Carlyle, in his " Life of Cromwell," gives the 
 following glimpse of this military government : — 
 
 " The beginning of a universal scheme of major -gen- 
 erals; the Lord-Protector and his Council of State hav- 
 ing' well considered and found it the feasiblest, — ' if 
 not good, yet best.' ' It is an arbitrary government,' 
 murmer many. Yes, arbitrary, but beneticial. These 
 are poirers unlcnown to the English Constitution, I 
 believe ; hut they are very necessary for the Puritan 
 English nation at this time." f 
 
 Perhaps no better words could be found in 
 explanation of the Cromwellian policy adopted 
 by our President. 
 
 A contemporary republican, Colonel Ludlow, 
 
 * Constitutional History of England, vol. ii. p. 340. 
 t Carlyle' 8 Life of Cromwell, part ix. vol. ii. p. 168. 
 
 whose '' Memoirs " add to our authentic histoiy 
 of those interesting times, characterizes these 
 military magistrates as so many " bashaws." 
 Here are some of his words : — 
 
 " The major-generals carried things with unheard-of 
 insolence in their several precincts, decimating to ex- 
 tremity whom they pleased, and interrupting the pro- 
 ceedings at law upon petitions of those who pretended 
 
 themselves aggrieved; tlireatening surli us iraii/il not 
 yield If mil II I II siihinissionto their orders iri/Ii /nnis/inrta- 
 tion to .fiiiiiiiica, or some otiier plantuiion in the West 
 Indies." * 
 
 Again, says the same contemporary writer, — 
 
 " There were sometimes bitter reflections cast upon 
 the proceedings of tlie m.ijor-generals by the lawyers 
 and country gentlemen, who accused them to have done 
 many things oppressive to the people, in interrupting 
 the course of tlie law, and threatening such as ivould 
 not submit to thetr arbitrary orders iviih transjjortation 
 beyond the seas." t 
 
 At last, even Cromwell, at the height of his 
 power, found it necessary to abandon the policy 
 of military governors. He authorized his son- 
 in-law, Mr. Claypole, to announce in Parlia- 
 ment, " that he had formerly thouglit it neces- 
 sary, in respect to the condition in which the 
 nation had been, that the major-generals should 
 be intrusted with the authority which they had 
 exercised ; but, in the present state of affairs, 
 he conceived it inconsistent with the laws of 
 England and liberties of the people to continue 
 their power any longer." J 
 
 The conduct of at least one of our military 
 magistrates seems to have been a counterpart 
 to that of these " bashaws " of Cromwell ; and 
 there is no argument against that early mili- 
 tary despotism which may not be urged against 
 any attempt to revive it in our day. Some of 
 the acts of Governor Stanley in North Carolina 
 are in themselves an argument against the 
 whole system. 
 
 It is clear that these military magistrates are 
 without any direct sanction in the Constitution, 
 or in existing laws. They are not even "ma- 
 jor-generals," or otiier military olhcers, charged 
 with the duty of enforcing martial law ; but 
 they are special creations of the Secretary of 
 War, acting under the President, and charged 
 with universal powers. As governors within 
 the limits of a State, they obviously assume the 
 extinction of the old State governments for 
 which they are substituted, and tlie President, 
 in appointing them, assumes a power over 
 these States kindred to his acknowledged power 
 over Territories of the Union ; but, in appoint- 
 ing governors for Territories, he acts in pursu- 
 ance of the Constitution and laws, by and with 
 the advice and consent of the Senate. 
 
 That the President should assume the vaca- 
 tion of the State governments is of itself no 
 argument against the creation of military gov- 
 ernors, for it is simply the assumption of an 
 unc|uestionable fact ; but if it be true that the 
 State governments have ceased to exist, then 
 
 * Ludlow's Memoirs, p. 559. 
 t Ibid. p. 5S0, 
 
 i Ibid. p. 5S2. 
 
11 
 
 the way is prepared for the establishment of 
 provisional governments by Congress. In short, 
 if a new government is to be supplied, it should 
 be supplied by Congress rather than by the 
 President, and it should be according to estab- 
 lished law rather than according to the mere 
 will of any fuuctionary, to the end that ours 
 may be a government of laws and not of 
 men. 
 
 There is no argument for military governors 
 which is not equally strong for congressional 
 governments, while the latter have in their 
 favor two controlling considerations : first, that 
 they proceed from the civil rather than the 
 militai-y power; and, secondly, that they are 
 created by law. Therefore, in considering 
 whether congressional governments should be 
 constituted, I begin the discussion by assuming 
 every thing in their favor which is already ac- 
 corded to the other sj'stem. I should not do 
 this, if the system of military dictators were not 
 now recognized, so that the question is sharply 
 presented, which of the two to choose. Even 
 if provisional governments by Congress are not 
 constitutional, it does not follow that military 
 governments, without the sanction of Congress, 
 can be constitutional. But, on the other hand, 
 I cannot doubt, that, if military governments 
 are constitutional, then, surely, the provisional 
 governments by Congress must be so also. In 
 truth, there can be no opening for military gov- 
 veruments which is not also an opening for 
 congressional governments, with this great ad- 
 vantage for the latter, that they are in harmony 
 with our institutions, which favor the civil rather 
 than the military power. 
 
 In thus declaring an unhesitating preference 
 for congressional governments, I am obviously 
 sustained by reason ; but there is positive au- 
 thority on this identical question. I refer to 
 the recorded opinion of Chancellor Kent, as 
 follows : — 
 
 " Though the Constitution vests the executive 
 power in the President, and declares him Com- 
 mander-in-Chief of the army and navy of the 
 United States, these powers must necessarily he 
 subordinate to the legislative power in Congress. 
 It would appear to me to be the policy or true 
 construction of this simple and general grant 
 of power to the President, not to suffer it to in- 
 terfere with those specific powers of Congress 
 which are more safely deposited in the legis- 
 lative department, and that the powers thus as- 
 sumed hy the President do not belong to him, but 
 to Congress." * 
 
 Such Is the weighty testimony of this illus- 
 trious master with regard to the assumption of 
 power by the President, in 1847, over tlie Mex- 
 ican ports In our possession. It will be found 
 in the latest edition of his " Commentaries " 
 published during the author's life. Of course, 
 it is equally applicable to the recent assump- 
 tions within our own territory. His judg- 
 
 * Kent's Commentaries, vol. 1. p. 29'2, note b. 
 
 mcnt is clear in favor of congressional govern- 
 ments. 
 
 Of course, in ordinarj'- times, and under 
 ordinary circumstances, neither system of gov- 
 ernment would be valid. ''A State, in the full 
 enjoyment of its; rights, would spurn a military 
 governor or a congressional governor. It would 
 insist that its governor should be neither mili- 
 tary nor congressional, but such as its own 
 people chose to elect; and nobody would ques- 
 tion this right. The President does not think 
 of sending a military governor to New York ; 
 nor does Congress think of establishing a pro- 
 visional government In that State. It is only 
 with regard to the rebel States that this cjues- 
 tion arises. The occasion, then, for the exer- 
 cise of this extraordinary power is found in the 
 Rebellion. Without the Rebellion, there Avould 
 be no talk of any governor, whether military or 
 conn;ressional. 
 
 STATE RIGHTS. 
 
 And here it becomes important to consider 
 the operation of the Rebellion in opening the 
 way to this question. To this end we must un- 
 derstand the relations between the States and 
 the National Government, under the Constitu- 
 tion of the United States. As I approach this 
 question of singular delicacy, let me say on the 
 tin-eshold, that for all those rights of the States 
 which are consistent with the peace, security, 
 and permanence of the Union, according to the 
 objects grandly announced in the preamble of 
 the Constitution, I am the strenuous advocate, 
 at all times and places. Never through any 
 word or act of mine shall those rights be im- 
 paired ; nor shall any of those other rights be 
 called in question by which the States are held 
 in harmonious relations as well with each other 
 as with the Union. But while thus strenuous 
 for all that justly belongs to the States, I can- 
 not concede to them immunities inconsistent 
 with that Constitution which is the supreme law 
 of the land ; nor can I admit the impeccability ' 
 of States. 
 
 From a period even anterior to the Federal 
 Constitution, there has been a perverse preten- 
 sion of State Rights, which has perpetually in- 
 terfered with the unity of our government. 
 Throughout the Revolution, this pretension was 
 a check upon the powers of Congress, whether 
 in respect to its armies or its finances ; so that 
 it was too often constrained to content itself 
 with the language of advice or persuasion rather 
 than of command. By the Declaration of In- 
 dependence it.was solemnly dechired that " these 
 United Colonies are, and of right ought to be, 
 free and independent States ; and that, as such, 
 they have full powers tO' levy war, to contract 
 alliances, to establish commerce, and to do all 
 other acts which independent States may of 
 right do." Thus by this original charter the 
 early colonies were changed into independent 
 
12 
 
 States, under whose protection the liberties of 
 the country were placed. 
 
 Early steps were taken to supply the defi- 
 ciencies of this gover^inient, which was effective 
 only through the generous patriotism of the 
 people. In July, 17 78, two years after the Dec- 
 laration, Articles of Confederation were framed ; 
 but they were not completely ratified by all the 
 States till March, 1781. The character of this 
 new government, which assumed the style of 
 " The United States of America," will appear 
 in the title of 4hese articles, which was as 
 follows : " Articles of Confederation and 
 Perpetual Union between the States of New 
 Hampshire, Massachusetts Bay, Rhode-Island 
 and Providence Plantations, Connecticut, New 
 York, New Jersey, Pennsylvania, Delaware, 
 Maryland, Virginia, North Carolina, South 
 Carolina, and Georgia." By the second article, 
 it was declared that " each State retains its soi;- 
 ereignti/, freedom, and independence, and every 
 power, jurisdiction, and right which is not by 
 this Confederation expressly delegated to the 
 United States in Congress assembled." By 
 the third article it was further declared, that 
 " the said States hereby severally enter into a 
 Jirni league of fi-iendship with each other, for 
 their common defence, the security of their 
 liberties, and their mutual and general wel- 
 fare." By another article, a " committee of 
 the States, or any nine of them," was author- 
 ized, in the recess, to execute the powers of 
 Congress. The government thus constituted 
 was a compact between sovereign States, or, 
 according to its precise language, " a finn 
 league of friendship " between these States, 
 administered, in the recess of Congress, by a 
 " committee of the States." Thus did State 
 rights triumph. 
 
 But its imbecility, from this pretension, soon 
 became apparent. As early as December, 
 1782, a committee of Congress made an elab- 
 orate report on the refusal of Rhode Island, 
 one of the States, to confer certain powers on 
 Congress, with regard to revenue and com- 
 merce. In April, 1783, an address of Congress 
 to the States was put forth, appealing to their 
 justice and plighted faith, and representing the 
 consecpience of a failure on their part to sustain 
 the Government and provide for its wants. In 
 April, 1784, a similar appeal was made to what 
 were called " the several States," whose legis- 
 latures were recommended to vest " the United 
 States, in Congress assembled," with certain 
 powers. In July, 1785, a committee of Con- 
 gress made another elaborate report on the 
 reason Avhy the States should confer upon 
 Congress powers therein enumerated, in the 
 course of which it was urged, that, " unless 
 the States act together, there is no plan of 
 policy into which they can separately enter 
 which they will not be separately interested to 
 defeat, and, of course, all their measures must 
 prove vain and abortive." In February and 
 March, 178G, there were two other reports of 
 
 committees of Congress, exhibiting the failure 
 of the States to comply with the requisitions of 
 Congress, and the necessity for a complete 
 accession of all the Slates to the revenue sys- 
 tem. In October, 1786, there was still another 
 rejjort, most earnestly renewing the former 
 appeals to the States. Nothing could be more 
 urgent. 
 
 As early as July, 1782, even before the first 
 report to Congress, resolutions were adopted 
 by the State of New York, declaring " that the 
 situation of these States is in a peculiar manner 
 critical ; " and " that the radical source of most 
 of our embarrassments is the want of sufficient 
 power in Congress to effectuate that ready and 
 perfect co-operation of the different Stales on 
 which their immediate safety and future happi- 
 ness depend." Finally, in September, 1786, at 
 Annapolis, commissioners from several States, 
 after declaring " the situation of the United 
 States delicate and critical, calling for an exer- 
 tion of the united virtue and wisdom of all the 
 members of the Confederacy," recommended j 
 the meeting of a convention " to devise such 
 further provision as shall appear necessary to 
 render the Constitution of the Federal Gov- 
 ernment ade(|uate to the exigencies of the 
 Union." In pursuance of this recommendation, 
 the Congress of the Confederation proposed a 
 convention " tor the purpose of revising the 
 Articles of Confederation and Perpetual Union 
 between the United States of America, and re- 
 porting such alterations and amendments of 
 the said Articles of Confederation as the repre- 
 sentatives met in such convention shall judge 
 proper and necessaiy to render them adecjuate 
 to the preservation and su])port of the Union." 
 
 In ])ursuance of the call, delegates to the 
 proposed convention were duly a])pointed by 
 the legislatures of the several States, and the 
 convention assembled at Philadelphia, in May, 
 1787. The present Constitution was the well- 
 rijiened ii'uit of their deliberations. In trans- 
 mitting it to Congress, General Washington, , 
 who was the President of the convention, in a V 
 letter bearing date Sept. 17, 1787, made use 
 of this instructive language : — ! 
 
 " It is obviously impracticable in the Federal Govern- 
 ment of these States to secure all rights of independent 
 soi-ereiynty to each, and yet provide for the interest and 
 safety of all. Individuals eutiring into society must 
 give up a share of liberty to preserve the rest. The 
 magnitude of the sacrifice must dejiend as well on situ- 
 ation and circumstance as on the object to be obtained. 
 It is at all times difficult to draw with precision the 
 line between those rights which must be surrendered 
 and those which may be reserved; and on tlie jnesent 
 occasion this difficulty will be increased by a dillerence 
 among the several .s^o^cs as to their situation, extent, 
 habits, and particuhir interests. In all our delibera- 
 tions, we kept steadily in view that which appears to us 
 the greatest interest of every true American, — tuk 
 coxsoLif)ATioN OF OUK Umc)x, — in whicli is involved 
 our prosperity, safety, pe-rhaps our national existence. 
 " Geokge Washington." 
 
 These famous words were in harmony with 
 the constant sentiments of Washington. Here 
 is another instance from a letter to John Jay 
 during the summer of 1787 : — 
 
13 
 
 " We have errors to correct. We have probably h«d 
 too good an opinion of liuman nature in forming our 
 confederation. Experience lias taught us that men will 
 not adopt and carry into execution measures the best 
 calculated for their own good loithout the intervention 
 of cocrcire ponder. I do not conceive we can exist long 
 as a nation witliont lodging somewhere a power which 
 will pervnde the vvlmle I'nion in as iiierr/ctir ii manner 
 as th:' (tutluiritii of the State governments extends over 
 the several States." 
 
 There are the words of Washington ; and 
 be then proceeds : — 
 
 " To be fearful of investing Congress, constituted 
 as that body is, with ample authority for national 
 purposes, appears to me the very climax of popul.ir 
 absurdity and madness." 
 
 The Constitution was duly transmitted b}' 
 Congress to the several legislatures, by which 
 it was submitted to conventions of delegates 
 " chosen in each State by the people thereof," 
 ■who ratified the same. Afterwards, Congress, 
 by resolution, dated Sept. 13, 1788, setting 
 forth that the convention had reported " a 
 Constitution for the people of the United States," 
 which had been duly ratified, proceeded to 
 authorize the necessary elections under the 
 new government. 
 
 The Constitution, it will be seen, was framed 
 in order to remove the difficulties arising irom 
 State Rights. So paramount was this pui-pose, 
 that, according to the letter of Washington, it 
 was kept steadily in view in all the defibera- 
 tions of the Convention, which did not hesitate 
 to declare the consolidation of our Union as 
 essential to our prosperity, safety, and perhaps 
 our national existence. 
 
 The unity of the Government was expressed 
 in tlie term "Constitution," insteadof" Articles 
 of Confederation between the States," and in 
 the idea of "a more perfect union," instead of 
 a " league of friendship." It was also an- 
 nounced emphatically in the Preamble : — 
 
 " If'e, the people of the Ignited States, in order to form 
 a more perfect uniioi, estahlish justice, insure domestic 
 tranquillity, provide for the common defence, promote 
 the general welfare, and secure the blessings of libeity 
 to ourselves and our posterity, do ordain and establish 
 this Constitution for the United States of America." 
 
 Not " we, the States," but " we, the people 
 of the United States." Such is the beginning 
 and origin of our Constitution. Here is no 
 compact or league between States, involving 
 the recognition of State rights ; but a govern- 
 ment ordained and established by the people of 
 the United States for themselves and their pos- 
 terity. This government is not established hi/ 
 the States, nor is it established for the States ; 
 but it is established hij the people, for themselves 
 and their posterity. It is true, that, in the or- 
 ganization of the Government, the existence of 
 the States is recoginzed, and the original name 
 of " United States " is preserved ; but the sov- 
 ereignty of tlie States is absorbed in that more 
 perfect union which was then established. 
 There is but one sovereignty recognized, and 
 this is the sovereignty of the United States. 
 To the several States is left that special local 
 control which is essential to the convenience 
 
 and business of life ; while to the United States, 
 as a Plural Unit, is allotted that commanding 
 sovereignty which embraces and holds the 
 whole country within its perpetual and irre- 
 versible jurisdiction. 
 
 This obvious character of the Constitution 
 did not pass unobserved at the time of its adop- 
 tion. Indeed, the Constitution was most stren- 
 uously opposed, on the ground that the States 
 were absorbed in the nation. Patrick Henry 
 protested against consolidated power. In the 
 debates of the Virginia Convention, he ex- 
 claimed, — 
 
 '• And here I would make this inquiry of those 
 worthy characters who composed a part of the late 
 Federal Convention. I am sure tliey were fully im- 
 pressed with tlie necessity of forming a great consoli- 
 dated government, instead of a contederation. That 
 this is a consolidated government is demonstrably clear ; 
 and the danger of such a government is to my mind 
 very striking. I have the highest veneration tor those 
 gentlemen ; but sir, give me leave to demand, What 
 right had they to say, ' JVe, the people ' ? Wlio au- 
 thorized them to speak the language of ' We, thepeople,' 
 instead of ' ^Fe, the States ' ? " * 
 
 And again, at another stage of the debate, 
 the same patriotic opponent of the Constitution 
 declared succinctly, — 
 
 "The question turns, sir, on that poor little thing, 
 the expression, ' We the peojHe, ' instead of the States 
 of America." f 
 
 In the same convention another patriotic 
 opponent of the Constitution, George Mason, 
 following Patrick Henry, said, — 
 
 " Whether the Constitutiou is good or bad, the pres- 
 ent clause clearly discovers that it is a National Gov- 
 ernment, and no longer a Confederation. " X 
 
 But against all this opposition, and in face of 
 this exposure, the Constitution was adopted, in 
 the name of the people of the United States. 
 Much, indeed, was left to the States ; but it 
 was no longer in their name that the Govern- 
 ment was organized, while the miserable pre- 
 tension of State " sovereignty " was discarded. 
 Even in the discussions of the Federal Conven- 
 tion, Mr. Madison spoke thus plainly : — 
 
 "Some contend that States are soi'ereign, when, in 
 fact, they are only political societies. The States never 
 possessed the esseptial rights of sovereignty. These 
 were always vestea in Congress." 
 
 Grave words, especially when we consider 
 the position of their author. They were sub- 
 stantially echoed by Elbridge Gerry of Massa- 
 chusetts, afterwards Vice-President, who said, — 
 
 " It appears to me that the States never were inde- 
 pendent. Tliey had oidy corporate rights." 
 
 Even Pinckney of South Carolina said, — 
 
 " I hold it for fundamental point, that an individ- 
 ual independence of the Slates is utterly irreconcilable 
 with the idea of an aggregate sovereignty." $ 
 
 Better words still fell from ]\Ir. Wilson of 
 Pennsylvania, known afterwards as a learned 
 jud<re of the Supreme Court, and also for his 
 " J..ectures on Law : " — 
 
 * Elliot's Debates, vol. i. p. 22. 
 t Elliott's Debates, vol. iii. p. 44. 
 1 Jbid. p. 29. 
 5 Madison Papers, p. 631. 
 
14 
 
 " Will a regard to State rights justify the sacrifice of 
 the rights of men i If we proceed on any other foun- 
 dation tlian the last, our building will neither be solid 
 nor lasting. " 
 
 The argument was unanswerable then. It is 
 unanswerable now. Do not elevate the sover- 
 eignty of the States against the Constitution 
 of the United States. It is hardly less odious 
 than the earl}- pretension of sovereign power 
 against Magna Charta, according to the memo- 
 rable words of Lord Coke, as recorded by Eush- 
 worth : — 
 
 " Sovereign power is no parliamentry word. In my 
 opinion, it weakens Magna Charta and all our statutes ; 
 for they are absolute w ithout any saving of sovereign 
 power. And shall we now add it, we shall weaken the 
 foundation of law, and then the building must needs 
 fall. Take we heed what we yield unto. Magna CJ^ar- 
 ta is such a fellow that he will have no sovereign. " * 
 
 But the Constitution is our Magna Charta, 
 which can bear no sovereign but itself, as you 
 wiU see at once, if you will consider its charac- 
 ter. And this practical truth was recognized 
 at its formation, as may be seen in the writings 
 of our Rushworth, — I refer to Nathan Dane, 
 who was a member of Congress under the Con- 
 federation. He tells us plainly, that the terms 
 " sovereign States, " " State sovereignty, " 
 " State rights, " " rights of States, " are not 
 " constitutional expressions." 
 
 POWERS OF CONGRESS. 
 
 In the exercise of its sovereignty. Congress 
 is intrusted with large and peculiar powers. 
 Take notice of them, and you will see how 
 little of "sovereignty" is left to the States. 
 Their simple enumeration is an argument 
 against the pretension of State rights. Con- 
 gress may lay and collect taxes, duties, imposts, 
 and excises to pay the debts and provide for 
 the common defence and general u-efare of the 
 United States. It may borrow money on the 
 credit of the United States ; regulate commerce 
 with foreign nations, and among the several 
 Spates, and with the Indian tribes; establish a 
 uniform rule of naturalization, and uniform 
 laws on the subject of bankriT^tcy, throughout 
 the United .States: coin money, regulate the 
 value thereof, and fix the standard of weights 
 and measures ; establish post-offices and post- 
 roads •, promote the progress of science and the 
 useful arts by securing for limited times, to au- 
 thors and inventors, the exclusive right to their 
 respective writings and discoveries ; define and 
 punish piracies and felonies committed on the 
 high seas, and oflfences .qgainst the law of na- 
 tions ; declare war ; grant letters of marque 
 and reprisal ; make rules concerning captures 
 on land and water ; raise and support armies ; 
 provide and maintain a navy ; make rules for 
 the government and regulation of the land and 
 naval forces ; provide for calling forth the mi- 
 litia to execute the laws of the Union, to sup- 
 press insurrections, and repel invasions; pro- 
 
 * Rushworth's Historical Collections, vol. i. p. 009. 
 
 vide for organizing, arming, and disciplining the 
 militia, and for governing such part of them as 
 may be employed in the service of the United 
 States, reserving to the States respectively the 
 appointment of officers, and the authority of 
 training the militia according to the discipline 
 prescribed hy Congress ; and make all laws ne- 
 cessary and proper for carrying into execution 
 the foregoing powers and all other powers vest- 
 ed in the Government of the United States. 
 
 Such are the ample and diversified powers 
 of Congress, embracing all those powers which 
 enter into sovereignty. With the concession 
 of these to the United States, there seems to 
 be little left for the several States. In the pow- 
 er to " declare war " and to " raise and support 
 armies," Congress possesses an exclusive pow- 
 er, in itself immense and infinite, over persons 
 and property in the several States, while, by 
 the power to " regulate commerce," it may put 
 limits around about the business of the several 
 States ; and even in the case of the militia, 
 which is the original military organization of 
 the people, nothing is left to the States except 
 " the appointment of the officers," and the au- 
 thority to train it " according to the discipline 
 prescribed by Congress." It is thus that these 
 great agencies are all intrusted to the United 
 States, while the several States are subordinat- 
 ed to their exercise. 
 
 Constantly, and in every thing, we behold 
 the constitutional subordination of the States. 
 But there are other provisions by which the 
 States are expressly deprived of important ) 
 powers. For instance : " No State shall enter A 
 into any treaty, alliance, or confederation ; coin j 
 money ; emit bills of credit ; make any thing ! 
 but gold and silver coin a tender in payment 
 of debts." Or, if the States may e.xercise cer- 
 tain powers, it is only with the consent of Con- 
 gress. For instance : " No State i\\&\\,without the 
 consent of Congress, lay any duty of tonnage, 
 keep troops or ships of war in time of peace, 
 enter into any agreement or compact with 
 another State or with a foreign power." Here 
 is a magistral power accorded to Congress ut- 
 terly inconsistent with the pretensions of State 
 rights. Then, again : " No State shall, ivithout 
 'the consent of Congress, lay any imposts or 
 duties on imports or exports, except what may j 
 be absolutely necessar}-^ for executing its in- I 
 spection-laws ; and the net produce of all du- i 
 ties and imposts laid by any State on imports 
 or exports shall be for the use of the treasury 
 of the United States ; and all such laws shall 
 he subject to the revision and control of the Con- 
 gress." Here, again, is a similar magistral 
 power accorded to Congress ; and, as if still 
 further to deprive the States of their much 
 vaunted sovereignty, the laws which they make 
 with the consent of Congress are expressly de- 
 clared to be subject " to the revision and con- 
 trol of the Congress." But there is another j 
 instance still. According to the Constitution, | 
 " Full faith and credit shall be given in each ] 
 
15 
 
 State to the public acts, records, and judicial 
 proceedings of every other State ; " but here 
 mark the controlling power of Congress, which 
 is authorized to " prescribe the manner in 
 which such acts, records, and proceedings shall 
 be proved, and the elFect thereof." 
 
 SUPREMACY OF THE NATIONAL GOVERN- 
 MENT. 
 
 But there are five other provisions of the 
 Constitution by which its supremacy is posi- 
 tively established. 1. "The citizens of each 
 State shall be entitled to all privileges and im- 
 munities of citizens in the several States." As 
 Congress has the exclusive power to establish 
 "an uniform rule of naturalization," it may, 
 under these words of the Constitution, secure 
 for its newly entitled citizens " all privileges 
 and immunities of citizens in the several 
 States," in defiance of State rights. 2. "New 
 States may be admitted h)j the Congress into 
 this Union." According to these words, the 
 States cannot even determine their associates, 
 but are dependent in this respect upon the will 
 of Congress. 3. But, not content with taking 
 from the States these important powers of sove- 
 reignty, it is solemnly declared that the Con- 
 stitution, and the laws of the United States 
 made in pursuance thereof, and all ti-eaties un- 
 der the authority of the United States, "SHALL 
 
 BE THE SUPREME LAW OF THE LAND, any 
 
 thing in the Constitution or laws of any State to 
 the contrary notwithstanding." Thus are State 
 rights again subordinated to the National Con- 
 stitution, which is erected into the paramount 
 authority. 4. But this is done again by another 
 provision, which declares that " the members 
 of the several State legislatures, and all execu- 
 tive and judicial officers of the several States, 
 shall be bound by oath or affirmation to sup- 
 port this Constitution : " so that not only State 
 laws are subordinated to the National Consti- 
 tution, but the makers of State laws, and all 
 other State officers, are constrained to declare 
 their allegiance to this Constitution ; thus pla- 
 cing the State, alike through its acts and its 
 agents, in complete subordination to the sove- 
 reignty of the United States. 5. But this 
 sovereignty is further proclaimed in the sol- 
 emn injunction, that " the United States shall 
 guarantee to every State in this Union a re- 
 publican form of government, and shall protect 
 each of them against invasion." Here are du- 
 ties of guaranty and protection imposed upon 
 the United States, by which their position is 
 fixed as the supreme^ power. There can be 
 no such guaranty without the implied I'ight to 
 examine and consider the governments of the 
 several States ; and there can be no such pro- 
 tection without a similar right to examine and 
 consider the condition of the several States ; 
 thus subjecting them to the rightful supervision 
 
 and superintendence of the National Govern- 
 ment. 
 
 Thus, whether we regard the large powers 
 vested in Congress, the powers denied to the 
 States absolutely, the powers denied to the 
 States without the consent of Congress, or 
 those other provisions which accord supremacy 
 to the United States, we shall find the preten- 
 sion of State sovereignty without foundation, 
 except in the imagination of its partisans. Be- 
 fore the Constitution, such sovereignty may have 
 existed : it was declared in the Articles of Con- 
 federation ; but since then it has ceased to ex- 
 ist. It has disappeared and been lost in the 
 supremacy of the National Government, so 
 that it can no longer be recognized. Perverse 
 men, insisting that it still existed, and weak 
 men, mistaking the shadow of former power for 
 the reality, have made arrogant claims in its 
 behalf When the Constitution was proclaimed, 
 and George Washington took his oath to sup- 
 port it as president, our career as a nation be- 
 gan with all the unity of a nation. The States 
 remained as living parts of the body, important 
 to the national strength, and essential to those 
 currents which maintain national life, but 
 plainly subordinate to the United States, which 
 then and there stood forth a nation, ^ne and 
 indivisible. 
 
 MISCHIEFS IN THE NAME OF STATE RIGHTS. 
 
 But the new government had hardly been 
 inaugurated before it was disturbed by the 
 pestilent pretension of State rights, which, in- 
 deed, has never ceased to disturb it since. Dis- 
 content with the treaty between the United 
 States and Great Britain, negotiated by that 
 purest patriot, John Jay, under instructions 
 from Washington, in 1794, aroused Virginia, 
 even at that early day, to commence an oppo- 
 sition to its ratification, in the name of State 
 rights. Shortly afterwards appeared the fa- 
 mous resolutions of Virginia and those of K^- 
 tucky, usually known as the " Resolutions of 
 '98," declaring that the National Government 
 was founded on a compact between the States, 
 and claiming for the States the right to sit in 
 judgment on the National Government, and to 
 interpose, if they thought fit : all this, as you 
 will see, in the name of State rights. This pre- 
 tension on the part of the States increased, till, 
 at last, on the mild proposition to attach a pros- 
 pective prohibition of Slavery as a condition to 
 the admission of Missouri into the Union as a 
 new State, the opposition raged furiously, even 
 to the extent of menacing the existence of the 
 Union ; and this, too, was done in the name of 
 State rights. Ten years later, the pretension 
 took the familiar form of nullification, insisting 
 that our government was only a compact of 
 States, any one of which was free to annul an 
 act of Congress at its own pleasure; and all 
 this in the name of State rights. For a succes- 
 
16 
 
 sion of years afterwards, at the presentation of 
 petitions against slavery, petitions for the 
 recognition of Hayti, at the question of Tex- 
 as, at the AVilmot Proviso, at the admission 
 of California as a fi'ee State, at the discus- 
 sion of the Compromises of 1850, at the Kan- 
 sas question, the Union was menaced ; and al- 
 ways in the name of Stale rlyhts. The menace 
 was constant; and it sometimes showed itself on 
 small as well as great occasions, but always in 
 the name of Slate rights. When it was sup- 
 posed that Fremont was about to be chosen 
 President, the menace became louder, and 
 mingling with it was the hoarse mutter of 
 war ; and all this audacity was in the name of 
 Stale rights. 
 
 But in the autumn of 18G0, on the election 
 of Mr. Lincoln, the case became much worse. 
 Scarcely was the result of this election known 
 by telegraph, before the country was startled 
 by other intelligence, to the effect that certain 
 States at the South were about to put in ex- 
 ecution the long-pending threat of secession, 
 of course in the name of State rights. First 
 came South Carolina, which, by an ordinflnce 
 adopted in a State convention, undertook to re- 
 peal the original act by which the Constitution 
 was adored in this State, and to declare that 
 the State had ceased to be one of the States of 
 the Union. At the same time, a Declaration of 
 Independence was put forth by this State, 
 which proceeded to organize itself as an inde- 
 pendent community. This example was fol- 
 lowed successively by other States, which, by 
 formal acts of secession, undertook to dissolve 
 their relations with the Union, always, be it 
 understood, in the name of State rights. A 
 new confederation was formed by these States, 
 with a new constitution, and Jefferson Davis 
 at its head ; and the same oaths of loyalty by 
 which the local functionaries of all these States 
 had been bound to the Union Avere now trans- 
 ferred to this new confederation, — of course, 
 in utter violation of the Constitution of the 
 United States, — but always in the name of State 
 rights. The ordinances of secession were 
 next maintained by war, which, beginning with 
 the assault upon Fort Sumter, convulsed the 
 whole country, till, at last, all the States of the 
 new confederation are in open rebellion, 
 which the Government of the United States is 
 now exerting its energies, mustering its forces, 
 and taxing its people, to suppress. The origi- 
 nal claim, in the name of Slate rights, has 
 swollen to all the proportions of an unparal- 
 leled war, which, in the name of Slate rights, 
 now menaces the national life. 
 
 But the pretensions in the name of State 
 rights are not all told. While the ordinances 
 of secession were maturing, and before they 
 were yet consummated, Mr. Buchanan, who 
 was then President, declined to interfere, on 
 the ground that what had been done was done 
 by States, and that it was contrary to the the- 
 ory of our government " to coerce a State." 
 
 Thus was the pretension of Slate rights made 
 the apology for imbecility. Had this President 
 then intertered promptly and loyally, it cannot 
 be doubted that this whole intolerable cri^ie 
 might have been trampled out forever ; and 
 now, when it is proposed that Congress shall 
 organize governments in these States, which are 
 absolutely without loyal governments, we are 
 met by the objection founded on State rights. 
 The same disastrous voice, which from the be- 
 ginning of our history has sounded in our ears, 
 still makes itself heard ; but, alas ! it is now on 
 the lips of our friends. Of course, just in pro- 
 portion as it prevails will it be impossible to es- 
 tablish the Constitution again throughout the 
 rebel States. State rights are madly trium- 
 phant, if, first, in their name Rebel Govern- 
 ments can be organized, and then, again, in 
 their name congressional governments to dis- 
 place the rebel governments can be resisted. 
 If they can be employed, first to sever the 
 States from the Union, and then to prevent the 
 Union from extending its power over them. 
 State rights are at once a sword and buckler 
 to the Rebellion. It was through the imbecili- 
 ty of Mr. Buchanan that the States were al- 
 lowed to use the sword. God forbid that now, 
 through any similar imbecility of Congress, they 
 shall be allowed to use the buckler ! 
 
 SHALL CONGRESS ASSUME .JURISDICTION OF 
 THE REBEL STATES ? 
 
 And now, in this discussion, we are brought 
 to the practical (Question which is destined to 
 occupy so much of public attention. It is pro- 
 posed to bring the action of Congress to bear 
 directly upon the rebel States. This may be 
 by the establishment of provisional governments 
 under the authority of Congress, or simply by 
 making the admission or recognition of the 
 States depend upon the action of Congress. 
 The essential feature of this proposition is, that 
 Congress shall assume jurisdiction of the rebel 
 States. A bill authorizing provisional govern- 
 ments in these States was introduced into the 
 Senate by Mr. Plarris of the State of New York, 
 and was afterwards reported from the Judiciary- 
 Committee of that body ; but it was left with the 
 unfinished business, when the late Congress ex- 
 pired on the fourth of March. The ojiposition 
 to this proposition, so far as I understand it, as- 
 sumes two forms : first, that these States are 
 always to be regarded as States, with State 
 rights, and therefore cannot be governed by 
 Congress ; and, secondly, that, if any govern- 
 ment is to be established over them, it must be 
 simply a military government, with a military 
 governor, appointed by the President, as is ihe 
 case with Tennessee and North Carolina. But 
 State rights are as much disturbed by a military 
 government as by a congressional government. 
 The local government is as mu(,-h set aside in. 
 one case as in the other. If the President, 
 
n 
 
 within State limits, can proceod to organize a 
 military government to exercise all the powers 
 of the State, surely Congress can proeeed to 
 organize a eivil government witjiin the same 
 limits tor the same purpose ; nor ean any pre- 
 tension of State rights be eft'eetive against 
 Congress more than against the President. In- 
 deed, the power belongs to Congress by a higher 
 title than it belongs to the President; first, be- 
 cause a eivil government is more in harmony 
 with our institutions, and, wherever possible, is 
 required; and, secondly, because there arc 
 provisions of the Constitution under which this 
 power is clearly derived. 
 
 Assuming, then, that the pretension of State 
 rights is as valid against one form of govern- 
 ment as against the other, and still further as- 
 suming, that, in the case of military govern- 
 ments, this pretension is practically overruled 
 by the President at least, we are brought again 
 to consider the efficacy of this pretension when 
 advanced against Congressional governments. 
 
 It is argued that the Acts of Secession arc 
 all inoperative and void, and that therefore the 
 States continue precisely as before, with their 
 local constitutions, laws, and institutions in the 
 hands of traitors, but totally nnchanged, and 
 ready to be quickened into life by returning 
 loyalty. Such, I believe, is a candid statement 
 of the pretension for State rights against Con- 
 gressional governments, which, it is argued, can- 
 not be substituted for the State governments. 
 
 In order to prove that the rebel States con- 
 tinue precisely as before, we are reminded that 
 Andrew Johnson continued to occupy his seat 
 in the Senate after Tennessee had adopted its 
 Act of Secession and embarked in rebellion, 
 and that his presence testified to the fact that 
 ♦rebel Tennessee was still a State of the Union. 
 No such conclusion is authorized by the inci- 
 dent in question. There are two princi})Ies of 
 Parliamentary law long ago fixed : first, that the 
 power once conferred bj' an election to Parlia- 
 ment is irrevocable, so that it is not affected by 
 any subsecjuent change in the constituency ; 
 and, seconclly, that a member, when once chos- 
 en, is a member for the whole kingdom, becoming 
 thereby, according to the words of an early 
 authoi", not merely knight or burgess of the 
 county or borough which elected him, but 
 knight or burgess of England.* If these two 
 principles are not entirely inapplicable to our 
 political system, then the seat of Andrew John- 
 son was not in any respect affected by the 
 sulisetjuent madness of his State, nor can the 
 legality of his seat be any argument for his 
 State. 
 
 We arc also reminded that during the last 
 session of Congress two senators from Virginia 
 represented that State in the Senate ; and the 
 argument is pressed, that no such representa- 
 tion would be valid, if the State government 
 of Virginia was vacated : this is a mistake. 
 
 * See Gushing, Parlimentary Law, p. 284. 
 2 
 
 Two things are established by the presence of 
 these senators in the National Senate ; first, 
 that the old State government of Virginia is 
 extinct; and, secondly, that a new government 
 has been sctr up in its place. It was mj' fortune 
 to listen to one of these senators while he 
 earnestly denounced the idea that a -State gov- 
 ernment might disappear. I could not but 
 think that he strangely forgot the principle to 
 which he owed his seat in the Senate, as men 
 sometimes lorget a benefactor. 
 
 it is true beyond question, that the acts of 
 secession are all inopei'ative and void 
 against the Constitution of the United States. 
 Though matured in successive conventions, 
 sanctioned in various forms, and maintained 
 ever since by bloody war, these acts — no 
 matter by what name they may be called — are 
 are all equally impotent to withdraw an acre 
 of territory or a single inhabitant from the 
 riglitful jurisdiction of the United States. But, 
 while thus impotent against the United States, 
 it docs not follow that they were equally impo- 
 tent in the work of self-destruction. Clearly, 
 the rebels, by utmost efforts, could not impair 
 the National Jurisdiction ; but it remains to 
 be seen if their enmity did not act back with 
 fatal rebound upon those very State rights in 
 behalf ot which they commenced their trea- 
 son. 
 
 STATE SUICIDE. 
 
 It Is sometimes said that the States them- 
 selves committed suicide; so that, as States, 
 they ceased to exist, leaving their whole ju- 
 risdiction open to the occupation of the 
 United States under the Constitution. This 
 assumption Is founded on the fact, that, what- 
 ever may be the existing governments in 
 these States, they are in no respect constitu- 
 tional ; and since the State itself is known by 
 the government with which its life Is Inter- 
 twined, it must cease to exist constitutionally 
 when its government no longer exists consti- 
 tutionally. Perhaps, however. It would be 
 better to avoid the whole question of the life 
 or death of the State, and to content our- 
 selves with an Intpilry Into the condition of 
 its government. It Is not easy to say what 
 constitutes that entity which we call a State ; 
 nor Is the discussion much advanced by any 
 theory with regard to it. To my mind it 
 seems a topic fit for the old schoolmen, or a 
 modern debating society ; and yet, consider- 
 ing the part it has already played in this dis- 
 cussion, I shall be pardoned for a brief allu- 
 sion to It. 
 
 There are well-known words which ask and 
 answer the question. " What constitutes a 
 State ? " But the scholarly poet was not 
 thinking of a " State " of the American Un- 
 ion. Indeed, this term Is various in its use. 
 Sometimes It stands for civil society itself. 
 Sometimes it is the general name for a politi- 
 cal community, not unlike " nation," or 
 
18 
 
 " country," — as where our fathers, in the 
 resolution of Independen -e, which pre-eded 
 the Declaration, spoke of " the Stale of Great 
 Britain." Sometimes it stands for the Gov- 
 ernment, — as when Louis XIV., at the 
 height of his power, exclaimed, '• The State, 
 it is I ! V or when Sir Christopher Halton, in 
 the famous farce of " The Critic," ejacu- 
 lates, — 
 
 " Oh ! pardon me if my conjecture's rash ; 
 But I surmise — the State — 
 Some danger apprehends." 
 
 Among us the term is most known as the 
 technical name for one of the political socie- 
 ties wliich compose our Union. Of course, 
 when used in the latter restricted sense, it 
 must not be confounded with the same term 
 when used in a diifereut and broader sense. 
 But it is obvious that some persons attribute 
 to the one something of the qualities which can 
 belong only to the other. Nobody has sug- 
 gested, I presume, that any " State " of our 
 Union has, through reljellion, ceased to exist 
 as a cinil society, or even as a polifical commu- 
 nity. It is only as a State of the Union, arnn^d 
 with State rights, or at least as a local gov- 
 ernment, which annually renews itself, as the 
 snake its skin, that it can be called in ques- 
 tion. But it is vain to challenge lor the 
 technical " State," or for the Annual Govern- 
 ment, that immortality which belongs to civil 
 society. The one is an artificial body, the 
 other is a natural body ; and while the first, 
 overwhelmed by insurrection or war, may 
 change or die, the latter can change or die 
 only with the extinction of the commituity 
 itself whatever may be its name or its form. 
 
 It is bec^ause of confusion in the use of this 
 term that there has been so much confusion in 
 the political controversies where it has been 
 employed. But nowhere has this confusion 
 led to greater absurdity than in the pretension 
 which has been recently made in the name of 
 State rights, — as if it were reasonable to 
 attribute to a technical '' State " of the Union 
 that immortality that belongs to civil society. 
 
 From approved authorities it appears that 
 a " State," even in a broader signification, 
 may lose its life. Mr. Phillimore, in his re- 
 cent work on international law, says, " A 
 State, like an individual, may die," and among 
 the various ways, he says, " by its submission 
 and the donation of itself to another coun- 
 try." * But in the case of our rebel States 
 there has been a plain submission and dona- 
 tion of themselves, effective at least, to break 
 the continuity of government, if not to destroy 
 that immortality which has been claimed. 
 Nor can it make any difl^erence in breaking 
 this continuity, that the submission and dona- 
 tion, constituting a species of attornment, 
 were to enemies at home rather than to ene- 
 mies abroad, — to Jefferson Davis rather than 
 
 * I'hillimore's International Law, vol. i. p. 147. 
 
 to Louis Napoleon. The thread is snapped in 
 one case as much as in the other. 
 
 But a change of f.rvi in the actual govern- 
 ment may be equally effective. Cicero speaks 
 of a change so complete as " to leave no im- 
 age of a State behind." But this is precisely 
 what has been done throughout the whole 
 rebel region : there is no image of a consiiJu- 
 tional State left behind. Another authority, 
 Aristotle, whose words are always weiglity, 
 sHys, that, the form of the State being changed, 
 the State is no longer the same, as the harmony 
 is not the same when we modulate out of the 
 Dorian mood into the Phrygian. But, if ever 
 an unlucky people modulated out of one 
 mood into another, it was our rebels, when 
 they undertook to modulate out of the har- 
 monies of the Constitution into their bloody 
 discords. 
 
 Without stopping further for these diver- 
 sions, I content myself with the testimony of 
 Edmund Burke, who, in a striking passage, 
 which seems to have been written for us, por- 
 trays the extinction of a political community ; 
 but I quote his eloquent words rather for sug- 
 gestion than for authority : — 
 
 " Tn a state of rude Nature, there is no such thing as 
 a people. A number of men in themselves have no 
 collective capacity. The idea of people is the idea of 
 a corporation, it is wholly artiticial, and made, like 
 all other legal fictions, by common agreement. What 
 the particular nature of that agreement was is collected 
 from the form into which the particular society has 
 been cast. Any other is not tlwir covenant. iVlien 
 men, ilierefore, break iij) tliooi-igiiial coDipart or agree- 
 ment ivliich gives its corpoidie form and capacity to a . 
 State, tliey «re vo longer apeop'le; tliey liave no longer 1 
 <i corporate existence ; they have no longer a legal co- ^ 
 active force to bind within, nor a claim to be recog- 
 nized abroad. Tliey are a number of vague, loose in- 
 dividuals, and notliing more. With them all is to be- 
 gin again. Alas I they little know how many a weary , 
 step is to be taken before they can form themselves 
 into a mass which has a true politic personality." * • 
 
 If that great master of eloquence could be 
 heard, who can doubt that he would blast our 
 Rebel States, as senseless communities who 
 have sacrificed that corporate existence which 
 makes them living, component members of 
 our Union of States ? 
 
 STATE FORFEITUKE. 
 
 But again, it is sometimes said that the 
 States, by their flagrant treason, have forfeited 
 their rights as States, so as to be civilly dead. 
 It is a patent and indisputable fact, that this 
 gigantic treason was inaugurated with all the 
 forms of law known to the States ; that it was 
 carried forward not only by individuals, but 
 also by States, so far as States can perpetrate 
 treason ; that the States pretended to with- 
 draw bodily in their corporate capacities ; 
 that the Bebellion, as it showed itself', was by 
 States as well as in States ; that it was by the 
 governments of States as well as by the peo- 
 ple of States ; and that, to the common ob- 
 
 *^\iLxyif:^i Appeal from tlieNcv) to ttie Old Whigs. 
 
19 
 
 server, tlie crime was consummated by the 
 several corporations as well as by the individ- 
 uals of whom they were composed. From 
 this fact, obvious to ail, it is argued, that 
 since, according to Blackstone, '' a traitor hath 
 abandoned his connection with society, and 
 hath no longer any right to the advantages 
 which belbre belonged to him purely as a 
 member of the community," by the same prin- 
 ciple the traitor State is no longer to be' re- 
 garded as a member of the Union. But it is 
 not necessary, on the present occasion, to in- 
 sist on tlie application of any such principle 
 to States. 
 
 STATE ABDICATION. 
 
 Again it is said, that the States by their 
 treason and rebLdllou, levying war upon the 
 National Government, have abdicated their 
 places in the Union ; and here the argument 
 is upheld by the historic example of England, 
 at the Revolution of 1G88, when, on the flight 
 of James II. and the abandonment of his 
 kingly duties, the two Houses of Parliament 
 voted, that the monarch, " having violated the 
 flmdamental laws, and having withdrawn him- 
 self out of the kingdom, hud' ahdicatcd the 
 Government, and that the throne had tliereby 
 become vacant." * But it is not necessary for 
 us to rely on any allegation of abdication, ap- 
 plicable as It may be. 
 
 RIGHTFUL GOVERNMENT IN THE KEBEL 
 STATES VACATED. 
 
 It only remains that we should see things a^ 
 they are, and not seek to substitute theory for 
 fact. On this important c[uesdon I discard all 
 theoiy, whether it be of State suicide or State 
 forfeiture or State abdication, on the one side, 
 or of State rights, immortal and unimpeacha- 
 ble, on the otlicr side. Such discussions are 
 only endless mazes in which a whole Senate 
 may be lost. And in discarding all theory, I 
 discard also the c^uestion o{ </ejure, — whether, 
 lor instance, the Rebel States, while the Re- 
 bellion is flagrant, are de jure States of the 
 Union, with all the rights of States. It is 
 enough, that for the time being, and in the 
 absence of a loj/al Government, they can take 
 no part and perform no function in the Union, 
 so that, thctj cannot be recognized by the National 
 Government. The reason is plain. There are 
 in these States no local functionaries bound by 
 constitutional oaths, so that, in fact, there are 
 no constitutional functionaries ; and since the 
 State Government is necessarily composed of 
 such functionaries, there can be no State Gov- 
 ernment. Thus, for instance, in South Caro- 
 lina, Pickens and his associates may call them- 
 selves the governor and legislature; and in 
 Virginia, Letcher and his associates may call 
 themselves governor and legislature ; but we 
 cannot recognize them as such. Therefore to" 
 all pretensions In behalf of State Govern- 
 
 * Macaulay's History of England, vol. ii. p. 023. 
 
 ments in the Rebel States I oppose the simple 
 FACT, that for the time being no such Gov- 
 ernments exist. The broad sjiaces once occu- 
 pied by those Governments are now aban- 
 doned and vacated. 
 
 That patriot senator, Andrew Johnson, — 
 faithful among the faithless, the Abdiel of the 
 South, — began his attempt to re-orgahize Ten- 
 nessee by an address, as early as the 18th of 
 March, 18G2, in which he made use of these 
 words : — 
 
 " I find most, if not all, of the ofiicos, both State 
 anil Federal, vacntcd, either hy actual iihinnhntmeiit, or 
 tijl the action of the incumltents in (itleinpiiiiii to subor- 
 dinate their functions to a power in liostiiity to the 
 fundamental law of the State and subversive of her 
 national allegiance." 
 
 In employing the word " vacated," Mr. 
 
 Johnson hit upon the very term, which, in the 
 
 famous Resolution of 1688, was held to be 
 
 most effective in dethroning King James. 
 
 After declaring that he had abdicated the 
 
 government, it was added, " that the throne 
 
 had thereby become vacant ; " on which Ma- 
 
 caulay happily remarks : — 
 
 " The word abdication conciliated politicians of a 
 more timid scliool. To tlie real statesman the simple 
 important clause was that ivhidi declared the throne 
 vacant; and if that clause could be carried, he cared 
 little by what preamble it might be introduced." * 
 
 And the same simple principle is now in is- 
 sue.' It is enough that the Rebel States be 
 declared vacated, as in fact they are, by all lo- 
 cal government which we ar(! bound to recog- 
 nize : so that the waj' Is open to the exercise 
 of a rightful jurisdiction. 
 
 TRANSITION TO RIGHTFUL GOVERNMENT. 
 
 And here the question occm'S, How shall 
 this rightful jurisdiction be established in 
 the vacated State ? Some there are, so im- 
 passioned for State rights, and so anxious for 
 forms, even at the expense of substance, that 
 they insist upon the instant restoration of the 
 old Scate governments in all their parts, 
 through the agency of loyal citizens, who, 
 meanwhile, must be protected in this work 
 of restoration. But assuming that all this is 
 practicable, as it clearly is not, it attributes to 
 the loyal citizens of a Rebel State, however 
 few In numbers, — it may be an insignificant 
 minority, — a power clearly Inconsistent with 
 the received principle of popular government, 
 that the majority nmst rule. The seven voters 
 of Old Sarum were allowed to return two 
 members of Parliament, because this place, — 
 once a Roman fort, and afterwards a sheep- 
 walk, — many generations before, at the early 
 casting of the House of Commons, had been 
 entitled to this representation ; but the argu- 
 ment for State Rights assumed that all these 
 rights may be lodged in voters as few in num- 
 ber as ever controlled a rotten borough of 
 England.^ 
 
 Pray, admitting that an insignificant minor- 
 ity is to organize the new government, how 
 
 * Macaulay's History of England, vol. ii. p>621. 
 
20 
 
 shall it be done ? and by whom shall it be set 
 in motion ? In putting these questions, I open 
 the difficuhies. As the original government has 
 ceased to exist, and there are none who can 
 be its legal successors so as to administer the 
 requisite oaths, it is not easy to see how the 
 new Government can be set in motion with- 
 out a reso' t to some revohitionary proceeding, 
 instituted either by the citizens or by the mil- 
 itary power, — unless Congress, in the exer- 
 cise of its plenary powers, should undertake 
 to organize the new jurisdiction. 
 
 But eveiy revolutionary proceeding is to be 
 avoided. It will be within the recollection of 
 all familiar with our history, that our fathers, 
 while regulating the separation of the Colo- 
 nies from the parent country, Avere careful 
 that all should be done according to the foi-ms 
 of law, so that the thread of lec/aiity should 
 continue unbroken. To this end the Conti- 
 nental Congress interfered by a suj^ervising 
 direction. But the Tory argument in that 
 day denied the power of Congress as ear- 
 nestly as it denies this power now. IVIr. Du^ 
 ane, of the Continental Congress, made him- 
 self the mouthpiece of this denial : — 
 
 " Co)ir/re.'<s ought not to (/etermine n point of this 
 soj-i about instituting (iovernmei)t. What is it to Con- 
 gress how justice is administeiecl ? You liave ro rij^lit 
 to pass the resolution, any more than railiaraeirt has. 
 How does it appear that no favorable answer is likely 
 to be given to our petitions ? " * 
 
 In spite of this argument, the Congress of 
 that day undertook, by formal resolutions, to 
 indicate the process by which the new Gov- 
 ernments should be constituted.f 
 
 If we seek for our guidance the principle 
 which entered into this proceeding of the Con- 
 tinental Congress, we shall find it in the idea, 
 that nothing must be left to illegal or informal 
 action, but that all must be done according to 
 rules of constitution and law previously or- 
 dained. Perhaps this principle has never been 
 more distinctly or jiowcrfuUy enunciated than 
 by Mr. Webster, in his speech against the Dorr 
 Constitution in Rhode Island. According to 
 him, this principle is a fundamental part of 
 what he calls our American system, requiring 
 that the right of suffrage shall be prescribed 
 hy previous law, including its qualifications, the 
 time and place of its exercise, and the manner 
 of its exercise ; and then, again, that the results 
 are to be certified to the central power by some 
 certain rule, b;/ some known public officers, in 
 some clear and definite form, to the end that 
 two things may be done : first, that every man 
 entitled to vote may vote ; secondly, that his 
 vote may be sent forward and counted, and so 
 he may exercise his part of sovereignty, in com- 
 mon with his fellow-citizens. Such, according 
 to Mr. Webster, are the minute forms which 
 must be followed, if we would impart to the 
 result the crowning character of law. And 
 here are other positive words from him on this 
 important point : — 
 
 * John Adams's Works, vol. ii. p. 490. 
 t Ibid. vol. iii. pp. 17, 19. 45, 40. 
 
 " We are not to take the will of the people from pub- 
 lic meetings, nor lioni tumultuous assemblies, by which 
 the timid are terrilied, tlie prurient are alarmed, and 
 by whicli society is disturbed. These are not Ameri- 
 can modes of signifyinj^- the will of the people, and 
 they never were. . . . 
 
 " Is it not obvious enough, that men cannot get to- 
 gether and count themselves, and say they are so njany 
 hundreds and so many tliousands, and judge of their 
 own qualifications, and call themselves the people, and 
 set up a government ? Why, nnnther set of men, fort;/ 
 miles o//; on tin' sunn' da;/, with the smne propriety, tcit'h 
 as good quniifirniiniis, mil/ ill as large numbers, may 
 meet, and si't ii/i iniii/liir i/iirirnmevt. . . . 
 
 " When, in tlie course of linman events, it becomes 
 necessary to ascertain tlie will of tlie people on a new 
 exigency, or a new state of tilings or of opinion, the 
 legislative power pror ides for that ascertainment by an 
 ordinary act of legislation. 
 
 " What do I contend for? I say that the will of the 
 people must prevail, when it is ascertained ; but there 
 must be some legal and authentic mode of asC'rtuintng 
 that will, and then tlie people may make what govern- 
 ment they please. . . . 
 
 "All that is necessary here is that the will of the 
 people should be ascertained by some regular rule of 
 pvoceedings, ])Tescribed by j^revious lair. . . . 
 
 " But the law and tlie Constitution, the whole system 
 of American institutiots, do not contemplate a case in 
 whicli a resort will be necessary to proceeding's aliunde, 
 or outside of the law and the Constitution, for the pur- 
 pose of amending the frame of government."* 
 
 CONGRESS THE TRUE AGENT. 
 
 But, happily, we ar» not constrained to any 
 such revolutionary proceeding. The new gov- 
 ernments can all be organized by Congress, 
 which is the natural guardian of the people, 
 without any immeiliate government, and within 
 the jurisdiction of the Constitution of the United ,: 
 States. Indeed, Avith the State governments i 
 already vacated by rebellion, the Constitution 
 becomes, for the time, the supreme and only 
 law, binding alike on President and Congress, i 
 so that neitlier can establish any law or institu- i 
 tion incompatible with it ; and tiie whole reb- ' 
 el region, deprived of . all local government,* 
 lapses under the exclusive jurisdiction of Con- 
 gress, precisely as any other territory ; or, in 
 other words, the lifting of the local govern- 
 ment leaves the whole vast region without any 
 other government than Congress, unless the 
 President should undertake to govern it by mili- 
 tary power. Startling as this proposition may 
 seem, especially to all who believe that "there 
 is a divinity that doth hedge" a State hardly 
 less than a king, it will appear, on careful con- 
 sideration, to be as well founded in the Constitu- 
 tion as it is simple and natural, while it affords 
 an easy and constitutional solution to our pres- 
 ent embarrassments. 
 
 I have no theory to maintain, but only the 
 truth ; and, in presenting this argument for 
 Congressional government, I simply follow 
 teachings which I cannot control. The wis- 
 dom of Socrates, in the words of Plato, has apt- 
 ly described these teachings, when he says, — 
 
 " These things are secured and bound, even if the ex- 
 pression be somewhat too rude, with iron and adamant ; 
 and unless you or some one more vigorous than you 
 can break them, it is impossible for any one speaking 
 otherwise than 1 now speak to speak well ; since, for my 
 part, I have always the same thing to say, that I know 
 not how these things are, but that out of aU with whom 
 I have ever discoursed, as now, not one is able to say 
 otherwise, and to maintain himself." f 
 
 * Webster's Worlcs, vol. vi. pp. 225, 220, 227, 22S, 231. 
 t The Gorgias of riato. 
 
21 
 
 Show me that I am wrong, — tliat this con- 
 clusion is not founded in the Constitution, and is 
 not sustained by reason, — and I shall at once 
 renounce it ; for, in the present condition of 
 affairs, there can be no pride of opinion which 
 must not fall at once before the sacred demands 
 of country. Not as a partisan, not as an advo- 
 cate, do i make this appeal, but simply as a 
 citizen, who seeks, in all sincerity, to offer his 
 contribution to the establishment of that pol- 
 icy by which Union and Peace may be re- 
 stored. 
 
 THREE SOURCES OP CONGRESSIONAL 
 POWER. 
 
 If we look at the origin of this power in 
 Congress, we shall find that it comes from three 
 distinct fountains, any one of which is ample 
 to supply it. Tiiree fountains, generous and 
 hospitable, will be found in the Constitution 
 ready for this occasion. 
 
 First, From the necessity of the case, ex 
 necessitate rei, Congress must have jurisdiction 
 over every portion of the United States where 
 there is no other governmejit ; and since, in the 
 present case, there is no other government, the 
 whole region falls within the jurisdiction of 
 Congress. This jurisdiction is incident, if you 
 please, to that guardiansiiip and eminent do- 
 main which belong to the United States with 
 regard to all its territory and the people there- 
 of, and it comes into activity when the local 
 government ceases to exist. It can be ques- 
 tioned only in the name of the local govern- 
 ment ; but since this government has disap- 
 peared in the rebel States, the jurisdiction of 
 Congress is uninterrupted there. The whole 
 broad rebel region is tabula rasa, or " a clean 
 slate," where Congress, under the Constitution 
 of the United States, may write the laws. In 
 adopting this principle, I follow the authority 
 of the Supreme Court of the United States in 
 determining the jurisdiction of Congress over 
 the Territories. Here are the words of Chief 
 Justice Marsliall : — 
 
 " Perhaps the power of governing' a Territory be- 
 longing' to tht' United Slates, which lias not, by becom- 
 ing a State, a<'(jiiirert tlie means of self-government, 
 
 nidi/ refill f III'. ■i-.<sii.rili/ from tliefiicts that it is not witli- 
 in ihf jii ritiilirlioii ()/' inn/ pnrticiilar State, and is with- 
 in the iiowcr :iiid jurisdiction of the Unfted States. 
 The 1 ight to g'overn may be the natural consequence 
 of the rijjht to acquire territory." * 
 
 If the right to govern may be the natural 
 conserpience of the right to acquire territory, 
 surely, and by much stronger reason, this right 
 must be the natural consequence of the sover- 
 eignty of the United States ■wherever there is 
 no local government. 
 
 Seconilly, This jurisdiction may also be de- 
 rived from the rights of war, which surely are 
 not less abundant for Congress than for the 
 President. If the President, disregarding the 
 pretension of State rights, can appoint milltai-y 
 governors within the rebel States to serve a 
 
 * American Insurance Company vs. Carter, 1 1'eters, 
 p. Hi'i. 
 
 temporary purpose, who can doubt that Con- 
 gress can exercise a similar jurisdiction ? That 
 of the President is derived from the war-pow- 
 ers ; but these are not scaled to Congress. If 
 it be asked where in the Constitution such pow- 
 ers are bestowed upon Congress, I reply, that 
 they will be found precisely where the Presi- 
 dent now finds his powers. But it is clear that 
 the powers to " declare war," to " suppress in- 
 surrections," and to " support armies," are all 
 ample for this purpose. It is Congress that 
 conquers ; and the same authority that conquers 
 must govern. Nor is this authority derived 
 from any strained construction ; but it spring* 
 from the very heart of the Constitution. It is 
 among those powers, latent in peace, which 
 war and insurrection call into being, but which 
 are as intrinsically constitutional as any other 
 power. 
 
 Even if not conceded to the President, these 
 powers must be conceded to Congress. Would 
 you know their extent? They will be found 
 in the authoritative texts of public law, — in 
 the works of Grotius, Vattel, and Wheaton. 
 They are the powers conceded by civilized so- 
 ciety to nations at war, known as the Rights of 
 War, — at once multitudinous and minute, vast 
 and various. It would be strange if Congress 
 could organize armies and navies to conquer, 
 and could not also organize governments to 
 protect. 
 
 De Tocqueville, who saw our institutions 
 with so keen an eye, remarked, that since, in 
 spite of all political fictions, the preponderating 
 power resided in the State governments, and 
 not in the National Government, a civil war 
 here " would be nothing but a foreign war in 
 disguise."* Of course the natural consequence 
 would be to give the National Government in 
 such a civil war all the rights which it would 
 have in a foreign war. And this conclusion, from 
 the observation of the ingenious ])ubliclst, has 
 been practically adopted by the Supreme Court 
 of the United States in those recent cases 
 where this tribunal, after the most learned ar- 
 gument, followed by the most careful consid- 
 eration, adjudged, that since the Act of Congress 
 of July 13th, "1861, the National Government 
 has been waging " a territorial civil war," in 
 which all property afloat, belonging to a resident 
 of the belligerent territory, is liable to capture 
 and condemnation as lawful prize. But surely, 
 if the National Government may stamp upon 
 all residents in this belligerent territory the 
 character of foreign enemies, so as to subject 
 their ships and cargoes to the penalties of con- 
 fiscation, it may jierform the milder service of 
 making all needful rules and regulations for the 
 government of this territory under the Consti- 
 tution, so long as may be requisite for the sake 
 of peace and order; and, since the object of 
 war Is "indemnit}- for the past and security for 
 the future," it m;iy do every thing necessary to 
 make these effectual. But it will not be enough 
 
 * Democracy in America, vol. ii. cli. ^5, p. 34o. 
 
22 
 
 to crush the Rebellion. Its terrible root must 
 be exterminated, so that it may no more flaunt 
 in blood. 
 
 Thirdly, But there is another source for this 
 jurisdiction which is common alike to Congress 
 and the President. It Avill be found in the 
 constitutional provision that " the United States 
 shall ouarantee to every State in this Union a 
 republican foi-m of government, and shall pro- 
 tect each of them against invasion." Here, be 
 it observed, are words of guaranty and an obli- 
 gation of protection. In the original concession 
 to the United States of this twofold power, there 
 was an open recognition of the ultimate respon- 
 sibility and duty of the National Government, 
 conferring jurmliction above all pretended State 
 rights; and now the occasion has come for the 
 exercise of this twofold power thus solemnly 
 conceded. The words of twofold power and 
 corresponding obligation are plain, and beyond 
 question. If there be any ambiguity, it is only 
 aS to what constitutes a republican form of gov- 
 ernment. But for the present, this question does 
 not arise. It is enough that a wicked rebellion 
 has undertaken to detach certain States from 
 the Union, and to take them beyond the jn-o- 
 tection and sovereignty of the United States, 
 with the menace of seeking foreign alliance and 
 support, even at the cost of every distinctive 
 institution. It is well known that Mr. Madi- 
 son anticipated this precipe danger from slavery, 
 and upheld this precise grant of power, in order 
 to counteract this danger. His words, which 
 will be found in a yet unpublished document 
 produced by Mr. Collamer in the Senate, seem 
 prophetic. 
 
 Among the defects which he remarked in the 
 old Confederation was what he called "want 
 of guaranty to the States of their constitutions 
 and laws against internal violence." In show- 
 ing why this guaranty was needed, he says, 
 that, " according to republican theory, right 
 and power, being both vested in the majority, 
 are held to be synonymous; according to fact 
 and experience, a minority may, in an a])peal 
 to force, be an overmatch for the majority;" 
 and he then adds, in words of wonderful pre- 
 science, " Where slavery exists, the repuhlican 
 theory becomes still more fallacious." Tliis was 
 written in April, 1787, before the meeting of 
 the convention that formed the National Con- 
 stitution. But here we have the origin of the 
 very clause in question. The danger which 
 this statesman foresaw is now upon us. When 
 a State fails to maintain a republican govern- 
 ment ?o;VA officers sworn according to the reqidre- 
 ments of the Constitution, it ceases to be a con- 
 stitutional State. The very case contem]ilatcd 
 by the Constitution has arrived, and the Na- 
 tional Government is invested with plenary 
 powers, whether of peace or war. There is 
 nothing in the storehouse of peace, and there is 
 nothing in tlie arsenal of war, which it may not 
 employ in the maintenance of this solemn 
 guaranty, and in the extension of that protec- 
 
 tion against invasion to which it is pledged* 
 But this extraordinary power carries with it a 
 corresponding duty. Whatever shows itself 
 dangerous to a republican form of government 
 must be removed without delay or hesitation ; 
 and, if the evil be slavery, our action will be 
 bolder when it is known that the danger was 
 foreseen. 
 
 In reviewing these three sources of power, I 
 know not which is most complete. Either 
 would be ample alone ; but the three together 
 are three times ample. Thus out of this triple 
 fountain, or, if you please, by tliis triple cord, 
 do I vindicate the power of Congress over the 
 vacated rebel States. 
 
 But there are yet other words of the Consti- 
 tution which cannot be forgotten : "New States 
 may be admitted by the Congress into this 
 Union." Assuming that the rebel States are 
 no longer de facto States of this Union, but 
 that the territory occupied by them is within 
 the jurisdiction of Congress, then these words 
 become completely applicable. It will be for 
 Congress, in such way as it shall think best, to 
 regulate the return of these States to the Union, 
 whether in time or manner. No special form 
 is prescribed. But the vital act must proceed 
 from Congress. And here again is another 
 testimony to that Congressional power, which, 
 under the Constitution, will restore the Repub- 
 lic. 
 
 UNANSWERABLE REASONS FOR CONGRES- 
 SIONAL GOVERNMENTS. 
 
 Against this power I have heard no argu- 
 ment which can be called an argument. There 
 are objections founded chiefly in the baneful 
 pretension of State rights ; but these objec- 
 tions are animated by prejudice rather than 
 reason. Assuming the imi)eccability of the 
 States, anij openly declaring that States, 
 like kings, can do no wrong, '\yhilo, like kings, 
 they wear the " round and top of sovereignty," 
 politicians treat them with most mistaken for- 
 bearance and tenderness, as if these rebel coi'- 
 porations could be dandled into loyalty. At 
 every suggestion of rigor. State rights are in- 
 voked ; and we are vehemently told not to de- 
 stroy the States, when all that Congress pro- 
 poses is simply to recognize the actual condition 
 of the States, and to undertake their temporary 
 government by providing for the condition of 
 ])olitical syncope into which they have fallen, 
 and, during this interval, to substitute its own 
 constitutional pow(^rs for the unconstitutional 
 powers of the Rebellion. Of course, therefore. 
 Congress will blot no star from the flag, nor 
 will it obliterate any State liabilities ; but it 
 will seek, according to its duty, in the best way, 
 to maintain the great and real sovereignty of 
 the Union by upholding the flag unsullied, and 
 by enforcing everywhere within its jurisdiction 
 the supreme law of the Constitution. 
 
 At the close of an argument already too long 
 drawn out, I shall not stop to array the consid- 
 
23 
 
 erations of reason and expediency in behalf of 
 this jurisdiction ; nor shall I dwell on the inev- 
 itable influence that it must exercise over Sla- 
 very, which is the motive of the Rebellion. To 
 my mind nothing can be clearer, as a proposi- 
 jion of constitutional law, than that, everywhere 
 yithin the exclusive jurisdiction of the National 
 Government, slavery is impossible. The argu- 
 nent is as brief as it is unanswerable. Slavery 
 ij so odious that it can exist only by virtue of 
 psitive law, plain and unec|uivocal ; but no 
 sich words can be found in the Constitution : 
 tlerefore slavery is impossible within the ex- 
 chsive jurisdiction of the National Govern- 
 mmt. For many years I have had this convic- 
 tic^i, and have constantly maintained it. I am 
 glal to believe that it is implied, if not ex- 
 ,pr(*;sed, in the Chicago Platform. Mr. Chase, 
 am^ng our public men, is known to accept it 
 sincerely. Thus slavery in the Territories is 
 uncjinstitutional ; but if the rebel territory 
 falls under the exclusive jurisdiction of the 
 Natbnal Government, then slavery will be im- 
 possible there. In a legal and constitutional 
 senst, it will die at once. The air will be too 
 purt^ for a slave. I cannot doubt that this 
 grea} triimiph has been already won^ The 
 monjCnt that the States fell, slavery fell also ; 
 so"" tiat, even without any proclamation of the 
 Preadent, slavery had ceased to have a legal 
 and constitutional existence in every rebel 
 Stati'. 
 
 But even if we hesitate to accept this im- 
 ]-)ortant conclusion, which treats slavery within 
 the rebel States as already dead in law and 
 Constitution, It cannot be doubted, that, by the 
 extension of the Congressional jurisdiction 
 over the rebel States, many difficulties will be 
 removed. Plolding every acre of soil and 
 every inhabitant of these States within its 
 jurisdiction. Congress can easily do, by proper 
 legislation, whatever may be needful within 
 rebel limits in order to assure freedom and to 
 save society. The soil may be divided among 
 patriot soldiers, poor whites, and freedmen ; 
 but, above all things, the Inhabitants may be 
 saved from harm. Those citizens in the rebel 
 States, who, throughout the darkness of the 
 Rebellion, have kept their faith, will be pro- 
 tected, and the freedmen will be rescued from 
 hands that threaten to cast them back into 
 slavery. 
 
 But this jurisdiction, which is so completely 
 I practical, is grandly conservative also. Had it 
 been early recognized that slavery depends 
 exclusively upon the local government, and 
 that it falls with that government, who can 
 doubt that every rebel movement would have 
 been checked ? Tennessee and Virginia would 
 never have stirred ; Maryland and Kentucky 
 would never have thought of stirring ; there 
 would have been no talk of neutrality between 
 the Constitution and the Rebellion ; and every 
 border State would have been fixed In its loy- 
 alty. Let it be established in advance, as an in- 
 separable incident to every act of secession, 
 
 that it is not only impotent against the ConstI 
 tution of the United States, but, that, on its 
 occurrence, both soil and inhabitants will lapse 
 beneath the jurisdiction of Congress, and no 
 State will ever again pretend to secede. The 
 word " territory," according to an old and 
 quaint etymology, is said to come from terreo, 
 to terrify, because it was a bulwai-k against the 
 enemy. A scholiast tells us, '■'■ Territorlum est 
 qulcquid Jwslis terrendl cmtsd conslitulum" " A 
 territory Is something constituted In order to 
 terrify the enemy ; " but I know of no way in 
 which our rebel enemy would have been more 
 terrified than by being told that his course 
 would inevitably precipitate him into a territo- 
 rial condition. Let this principal be adopted 
 now, and it will contribute essent'ally to that 
 consolidation of the Union which was so near 
 the heart of Washington. 
 
 Tlie necessity of this principle Is apparent as 
 a restraint upon the lawless vindlctlveness and 
 inhumanity of the rebel States, whether 
 against Union men or against freedmen. Union 
 men In Virginia already tremble at the thought 
 of being delivered over to a State government 
 wielded by original rebels pretending to be 
 patriots; but the freedmen, who have only 
 recently gained their birthright, are justified 
 in a keener anxiet}-, lest It should be lost as 
 soon as won. Mr. Saulsbury, a senator from 
 Delaware, with most instructive frankness, has 
 announced, in public debate, what the restored 
 State governments will do. Assuming that 
 the local governments will be preserved, he 
 predicts that in 1870 there will be more slaves 
 in the United States than there were In 1860, 
 and then unfolds the reason as follows, all of 
 which will be found In the " Congressional 
 Globe : " * — - 
 
 " By your acts you attempt to free the slaves. You 
 will not have tlieiu among you. You leave them where 
 they are. Then what is to be the result ? 1 presume 
 that local State governments will be preserved. It 
 they are, if the people have a right to make thiir own 
 laws, and to govern themselves, they will not only 
 re-enslave every person that you attempt to set free, 
 but they will re-enslave the whole race." 
 
 Nor has the horrid menace of re-enslavement 
 proceeded irom the senator from Didaware 
 alone. It has been uttered even by Mr. Wii- 
 ley, the mild senator from Virginia, s])eaking 
 in the name of State rights. JS^ewsjiapers 
 have taken up and repeated the revolting strain. 
 That is to say, no matter what may l)e done 
 for emancipation, whether by proclamation of 
 the President, or by Congress (nen, the State, 
 on resuming its place In the Union, will, In the 
 e.xerclse of Its sovereign power, re-enslave every 
 colored person within its jurisdiction ; and this 
 is the menace from Delaware, and even from 
 regenerated Western Vii-ginia ! I am obliged 
 to senators for their frankness. If I needed 
 any additional motive for the urgency with 
 which I assert the power of Congress, I should , 
 find It In the pretensions thus savagely pro- 
 claimed. In the name of Heaven, let us spare 
 
 * Thirty-seventh Congress, Second Session, 'iiX 3Iay, 
 1802, part iii. p. l!)i.'3. 
 
24 
 
 no effort to save the country from this shame, 
 and an oppressed people from this additional 
 outrage ! 
 
 " Once free, always free." This is a rule of 
 law, and an instinct of humanity. It is a self 
 evident axiom, which only tyrants and slave- 
 traders have denied. The brutal pretension 
 tiuis flamingly advanced, to re-enslave those 
 who have been set free, puts us all on our 
 uuard. There must be no chance or loop-hole 
 for such an intolerable. Heaven-defying iniquity. 
 Alas ! there have been crimes in human his- 
 tory ; but I know of none blacker than this. 
 There have been acts of baseness ; but I know 
 of none more utterly vile. Asjainst the possi- 
 bilitv of such a sacrifice, we must take a bond 
 wliich cannot be set aside ; and this can be 
 ibund only in the powers of Congress. 
 
 Congress has already done much. Besides 
 its noble Act of Emancipation, it has provided 
 that every person guilty of treason, orof incit- 
 ing or assisting the Rebellion, " shall be dis- 
 (jualified to hold any office under the United 
 States ; " and, by another act, it has provided 
 that every person elected or appointed to any 
 office of honor or profit uniler the Government 
 of the United States, shall, before entering 
 upon its duties, take an oath " that he has not 
 voluntarily borne arms against the United" 
 States, or given aid, countenance, counsel, or 
 encouragement to persons engaged in armed 
 liostility thereto, or sought or accepted, or at- 
 tempted to exercise, the functions of any office 
 Avhatever under any authority, or pretended 
 authority, in hostility to the United States." * 
 This oath will be a bar against the return to 
 7iational office of any who have taken part 
 with the rebels. It shuts out in advance the 
 whole criminal gang. But these same persons, 
 rtyected by the National Government, are left 
 free to hold office in the States; and hei'e is 
 another motive to further action by Congress. 
 The oath is well as far as it goes : more must 
 be done in the same spirit. 
 
 But enough. The case is clear. Behold 
 the rebel States in arms against that paternal 
 government to which, as the supreme condition 
 of their constitutional existence, they owe duty 
 and love ; and behold all legitimate powers, 
 executive, legislative, and judicial, in these 
 States, abandoned and vacated. It only re- 
 viains that Congress should enter and qssume the 
 proper jurisdiction. If we are not ready to 
 exclaim with Burke, speaking of revolutionary 
 France, " It is but an empty space on the po- 
 litical map," we may at least adopt the response 
 hurled back by Mirabeau, that this empty 
 space Is a volcano red with fianies and over- 
 flowing with lava-floods. But whether we deal 
 with it as " empty space " or as " volcano," the 
 jurisdiction, civil and military, centres in Con- 
 gress, to be employed for the happiness, wel- 
 fare, and renown of the American people, — 
 changing slavery into freedom, and present 
 
 * Act of Congress, July 2, 1S02, ch. 123.. 
 
 chaos into a Cosmos of perpetual beauty and 
 power. 
 
 §2. 
 
 MAKE HASTE SLOWLY; IKREVERSI- 
 BLE GUARANTIES NEEDED. 
 
 Speech in the Senate of the United 
 States, June 13, 1864. 
 
 The question arose on the reference of the credentials 
 of Mr. Flsnr.A^'K, as senator of Arkansas, to the 
 Committee of the Judiciary. 
 
 Mu. SuMXER. — Mr. President, I begin Ir 
 expressing my sympathy with every loyal cha^ 
 acter in a rebel State. Knowing avcII. Iron 
 long experience, the cruel rule and dominatim 
 of slavery, even in this Chamber, I cannot \e 
 indifferent to the trials of loyalty anywhere m 
 these latter days. Show me a man who ii a 
 rebel State has stood faithful to the natioial 
 cause, and I go forth to meet him with ny 
 heart in my hand. To have been true a. a 
 time when truth was disowned is enough for 
 honor as well as thanks. But the merits of in- 
 dividuals cannot determine the rights of States. 
 
 The case is too important. If indlvicual 
 merits, universally recognized, could lave 
 j saved a State to present rights in the Unon, 
 Tennessee would not now be a self-con denned 
 e*xile. There are few anywheyj who have 
 been so entirely true as Andrew Johnson, jnd 
 not one in all the rebel States who so bravely 
 encountered the Rebellion face to face. In 
 himself he was more than ten men ; and en 
 men might have saved Sodom. Besides, he 
 was a senator on this floor when the State 
 which he represented took its place in the reuel 
 confederacy and joined in war against flie 
 National Government; but he staid beliind 
 with his country, and kept his seat here. Pur- 
 sons ignorant of parliamentary law have some- 
 times argued from the latter circumstance that 
 rebel Tennessee was still entitled to her ancient 
 rights in the Union ; but they forgot two ^trin- 
 ciples — in England, the original home of par- 
 liamentary law — fixed long ago, beyond all 
 question : first, that the power once conferred 
 by an election to Parliament is irrevocable, so 
 that it is not aflected by any subsequent change 
 in the constituency; and, secondly, that a 
 •member, when once chosen, is a niemher for 
 the whole kingdom, becoming thereby, according 
 to the words of an early author, not merely 
 knight or burgess of the county or borough 
 which elected him, but knight or burgess of Eng- 
 land (Cushing's " Parliamentary Law," page 
 284). If these two principles are not entirely 
 discarded in our political system, then the seat 
 of Andrew Johnson was not in any respect 
 affected by the subsequent madness of his State, 
 nor can the legality of his seat be any argu- 
 ment for the ancient rights of his State. Nor, 
 again, can the fact that Andrew Johnson has 
 been selected by the convention of a powerful 
 political party as a candidate for the Vice-Pres- 
 idency be any argument for these ancient 
 
25 
 
 rights. It is not necessary that a candidate for 
 President or Vice-President slioukl belong to a 
 State. It is enongh, under the Constitution, 
 that he is a " citizen of the United States." 
 He ma}' be of the District of Cohunbia, or of 
 a Territory, or of a rebel State ; for these are 
 all ei{U(Uhj ivlthiii the rightful Jurisdiction of the 
 Waited Stales, and this is enough. The Jurisdic- 
 tion of the United States is permanent and inde- 
 feasible. Therefore, I repeat again, we must 
 look, on the present occasion, beyond the virtues 
 of individuals. Not all the virtues under heaven 
 can suffice to make a State of this Union, or to 
 give any claim for restoration to ancient rights, 
 wiiere there is a fiillure to comply with essen- 
 tial requirements. 
 
 The question under consideration is of mo- 
 mentous interest. It concerns primarily the 
 claim to a seat in the Senate ; but it involves 
 also the right of the State of Arkansas to share 
 at this moment in the National Govei nment by 
 a representation in Congi'ess, and also the 
 other right of participating in the approaching 
 Presidential election. And behind this great 
 question looms that other question, " How shall 
 we treat the rebel States '? " This (jucstion has 
 already been answered by the House of Repre- 
 sentatives in a bill which has been passed by 
 that body ; but it has not yet been decided by 
 the Senate. 
 
 Unexpectedly the great question and all the 
 subordinate questions are now presented for de- 
 cision. Not only Arkansas, but Louisiana, and 
 ^ every other rebel State, will await your judg- 
 ment. No question of equal importance has 
 been presented since it was determined to meet 
 the Rebellion by arms. 
 
 For the present I forbear all minute discus- 
 sion, either of history or principle. It will be 
 enough if I state the case, and exhibit the cjues- 
 tions involved. 
 
 William M. Fishback, a citizen of Ai-kansas, 
 appears before the Senate of the United States, 
 and claims membership therein. He asserts 
 that he has been duly chosen to fill the unex- 
 pired term of Senator Sebastian, who was ex- 
 pelled in 18G1 for complicity with the RebeUion ; 
 and he produces a certificate purporting to be 
 signed by the Governor of Arkansas. 
 
 Shall this claimant be admitted to a seat in 
 the Senate ? Such is the immediate question. 
 But I have said that there are other questions, 
 of the most far-reaching character, which must 
 be considered now and here, for they all enter 
 into the present case. If we now admit the 
 present claimant, we must also now admit that 
 other claimant, Avho has presented himself with 
 like credentials, as a colleague. The question 
 is not, therefore, Shall Arkansas have one vote 
 in this Senate ? but, Shall it have two ? 
 I But if Arkansas is now to be fully represent- 
 ed in this Senate, does it not follow that it is to 
 be represented with equal fulness in the House 
 of Representatives V If represented in that 
 Chamber, such representation must be under 
 the existing apportionment act, which assigns 
 
 to Arkansas two representatives, who are to 
 be chosen by districts, without reference to the 
 number of votes polled in either. 
 
 One privilege will draw after it another. 
 To him that hath it shall be given. If Arkan- 
 sas is admitted to an immediate rej)resentation 
 in the National Government, this rebel State, 
 which has overthi-own the Constitution within 
 its borders, and assumed the fiont of war, can 
 participate in the approaching election of Pres- 
 ident and Vice-President by organizing an 
 electoral college ; and, in case the election of 
 either of those great ofiicers should devolve 
 upon Congress, it can give a vote efi'ecting the 
 result as weighty as that given by Massachu- 
 setts, New York, or Illinois ; for in such case 
 the vote in the Senate is^>e?' capita, and in the 
 House it is by States. 
 
 Therefore, sir, I repeat, the decision of the 
 question now before us rules all the questions 
 which can arise iqjon the representation of Ar- 
 kansas in the Congress of the United States, • 
 and also the other question of the participation 
 of Arkansas in the election of President and 
 Vice-President for the term of four years next 
 ensuing. The importance of such a subject 
 cannot be exaggerated. It is important con- 
 stitutionally. It is important practically. It 
 is important also to the peace of the country. 
 It ought to be discussed fully and carefully, 
 especially when it is considered that we are on 
 the eve of a Presidential election which may 
 possibly be affected by our decision. 
 
 Mr. President, I am against the admission of 
 Arkansas to representation in the ' National 
 Government, at this time and under existing cir- 
 cumstances. There may be a time, and there 
 may be circumstances, when such representa- 
 tion will be proper; but clearly at this moment 
 it is improper, unreasonable, and dangerous. 
 The reasons are obvious. 
 
 First, The proposed representation is that 
 of a minority not only of the people, but even 
 of the ancient electors of Arkansas. It is su- 
 perfiuous to say that such representation is in- 
 consistent with republican principles, and can 
 be vindicated only by an overruling necessity. 
 But this point becomes of peculiar importance 
 when it is considered that the minority, asking- 
 representation in the National Government, 
 has accpiiesced in rebellion, and, still further, 
 that some of those comprising this minority 
 have actively assisted the public enemy. Look 
 at the facts. 
 
 The authority and jurisdiction of tlie United 
 States were wholly overthrown and subverted 
 in Arkansas. By the action of the State Leg- 
 islature, and of a convention called by this 
 Legislature, followed by a popular vote, the 
 State was made de facto a member of the 
 rebel confederacy. However much we may 
 deny the rightfulness or the h'gality of the pro- 
 ceeding, there can be no question with regard 
 to the fact. This at least is undeniaJde, and 
 constitutes an essential circumstance in the ease. 
 As a fact it must be recognized, whatever may 
 
26 
 
 be tlie consequences, precisely as truth is 
 recognized. But this unquestionable fact was 
 followed by a general acquiescence of the peo- 
 ple of Arkansas, so that this State became, in 
 point of fact as in name, a rebel State', linked 
 with other rebel States arrayed in arms against 
 the National Government. 
 
 At last, after much bloodshed, and various 
 vicissitudes, through the exertion of the military 
 power of the United States, a portion of the 
 territory of this State has been rescued from 
 rebel domination, and brouglit within the lines 
 of our army. Tlie rest will follow, in process 
 of time, and after further bloodshed, until 
 eventually the whole State will be rescued 
 from rebel domination, and brought Avithin the 
 lines of our army. Even theii we shall be 
 obliged to wait for the tokens of returning loy- 
 alty also. But at the present moment the pos- 
 session of the State is still contested by oppos- 
 ing forces, and a minority only has signified an 
 adhesion or re-adhesion to the National Gov- 
 ernment. This objection, of course, may be 
 removed by time ; but it existed in full force 
 at the election of the claimant, and is decisive 
 upon the question before us. 
 
 _ Unqviestionably, it is accorded to the ge- 
 nius of our government that the majority 
 should rule. A majority is the natural base of 
 a repul)lic. To found a republic on a minor- 
 ity is scarcely less impracticable than to stand 
 a pyramid on its apex. 
 
 Secondly, The proposed representation of 
 Arkansas in the Senate is unjust and inequi- 
 table in its relation to the representation oi 
 other loyal States ; and, if it be extended to 
 representation in the House of Representa- 
 tives and in the electoral colleges, it will be- 
 come still more unjust and inequitable. By 
 the original terms of union, the other States 
 have agreed that the wAo/e/>eo/j/e of Arkansas 
 shall have two senatoi-s, and representatives 
 according to a fixed proportion ; and also elec- 
 toral votes for President and Vice-President, 
 according to the number of their senators and 
 representatives. Now, it would be manifestly 
 wrong toward all other loyal States, if not a 
 fraud upon their rights, to assign such repre- 
 sentation and such privilage to a. fraction of the 
 people of Arkansas, constituting a. small minor- 
 ity ; so that on all questions of legislation, or of 
 treaties, or of a]ipointments, in the discharge 
 of legislative, diplomatic, and executive trusts, 
 this small minority would wield in the Senate 
 all the power of a loyal State, while in the 
 choice of President and Vice-President it might 
 turn the scale. 
 
 Thirdly, The miUtary ocrnipation of Arkan- 
 sas, and the unsettled condition of the commu- 
 nity there, cannot be forgotten when we are 
 considering whether to admit the representa- 
 tives of a newly organized civil government in 
 that State. Military occupation is practically 
 inconsistent with civil government. Even if 
 the former does not absolutely exclude the lat- 
 ter, yet it is evident that it must exercise a 
 
 controlling influence in political affairs. It is 
 impossible in time of war to preserve the con- 
 ditions of peace, especially in time of civil 
 war. Military power, when engaged in sub- 
 duing rebellion, cannot be insensible to po- 
 litical forces. It must win what it cannot over- 
 come. From the nature of the case, ordinary 
 political conditions are disturbed or subverted, 
 and electoral power loses its essential charac- 
 ter, so as to be no longer entitled to that pecu- 
 liar respect which it enjoys under American 
 institutions. These observations I apply solely 
 to a theatre of war ; and I insist, that, so ap- 
 plied, they are true, just, and indisputable. 
 
 But, in point of fact, there is another and 
 kindred force, which conspires with the former 
 to disturb sufFrage in Arkansas. I mean that 
 which proceeds from the incursions and hos- 
 tile operations of the enemy. These prevent 
 elections in some parts of the State, and ren- 
 der them partial in others ; and this unhappy 
 condition must continue so long as war pre- 
 vails in that region. That I do not exagger- 
 ate these perils, let me quote the testimony of 
 General Gantt, a citizen of Arkansas, who 
 participated in the recent election. " Thou- 
 sands," says he " when they started to the 
 polls in the morning, felt that at nightfall, 
 when they returned, it might be to a mass of 
 charred and smoking ruins and to a beggared 
 and impoverished family ; and yet other thou- 
 sands knew that the knife of the murderous 
 crew of Shelby, Marmaduke, and others, was 
 whetted for their throats, and might do their 
 execution before the polls were reached ; and 
 all knew, that, should the tide of war surge 
 backward over our State, instead of being 
 simply ordered out of the lines, bankruptcy, 
 dungeons, chains, and an ignominious death, 
 awaited them." This picture, Avhich is un- 
 questionably authentic, while it interests us for 
 the heroic sufferers, testifies conclusively how 
 incapable Arkansas is at this moment to bear 
 the burdens and discharge the trusts of a 
 State. 
 
 Fourthly, The present organization in Ar- 
 kansas, which seeks representation on this 
 floor, is without that legality of origin which is 
 required by the American system of govern- 
 ment. It Is revolutionary in its character. 
 Nay, more, it may all be traced to a military 
 order. Clearly this Incongruity will not be 
 tolerated. A new civil government, to be rec- 
 ognized as a State of this Union, cannot be lorn 
 of the mili'ary power. Congress has jurisdic- 
 tion over all those States in which loyal gov- 
 ei-nments have been overturned; and this ju-. 
 risdiction furnishes a natural, obvious, and 
 constitutional origin for the new government. 
 Without it, I am at a loss to see how the con- 
 necting link of legality can be preserved be- 
 tween the old and the new. This is not the first 
 time In our national history that Congress has 
 stood between the old and the new. Such is its 
 natural place and function. At the separation 
 of the colonies from the mother country, It in- 
 
27 
 
 terfered by formal resolution to indicate the 
 process by -which the new oovernments should 
 be constituted, although the Tories of that day 
 doubted the power. According to this ex- 
 ample, sustained by congenial principles, Con- 
 gress must now set the new government in 
 motion, and infuse into it that vital force which 
 is found in liberty regulated by law. 
 
 Fifthly, Arkansas is at this moment shut 
 out from commercial ■intercourse with the loyal 
 States, under the proclamation of the President 
 of 16th August, 1861, made in pursuance of 
 the act of Congress of 17th July, 1861. By 
 this proclamation, it is placed on the list of 
 States in " insurrection against the United 
 States; and all commercial intercourse between 
 the same and the inhabitants thereof and the 
 citizens of other States and other parts of 
 the United States is unlawful until such insur- 
 rection shall cease, or has been suppressed ; " 
 and all goods, chattels, wares, and merchandise 
 coming from any of the enumerated States and 
 proceeding to any other State by land' or water 
 are made liable to forfeiture (12 Statutes at 
 Large, 1262). And yet Arkansas, while still 
 under the ban of a Presidential proclamation 
 and a Congressional statute establishing non-in- 
 tercourse with other States, asks representation 
 in the National Government. Disqualified for 
 ti'ade with other States, it asks to govern them. 
 The old practice is to be reversed. Tlius far 
 in history, trade has preceded political power; 
 now political power is to precede trade. Ar- 
 kansas cannot send her merchants into the 
 loj-al States to buy and sell. Can she send 
 her representatives into this Chamber to vote ? 
 Can she send her electors into the electoral 
 college to choose a President ? 
 
 Such, Mr. President, are five distinct rea- 
 sons, obvious to the most superficial observer, 
 against the recognition of anj' representation, 
 at this time, from Arkansas : first, because the 
 representation is founded on a minority ; sec- 
 ondly, because any such repre.sentation, unjust 
 in itself, is es])ecially unjust toward the loyal 
 States ; thirdly, because the military occupa- 
 tion of Arkansas, and its exposed condition, are 
 inconsistent with civil government ; fourthly, 
 because the present organization of Arkansas 
 is without that legnlity of oririin which is re- 
 quired by American institutions; and, fiftlily, 
 because it is absurd to arhnit a State to r(']ii-e- 
 sentation, which is still, l)y solemn proclamation, 
 shut out from commercial intercourse with the 
 loyal States. 
 
 The argument thus far applies to the present 
 case, without touching that other question, 
 sometimes discussed, whether, in point of fact, 
 Arkansas is still a State of this Union. In- 
 deed, it is evident that Arkansas may have 
 preserved her place in the Union, and yet not 
 be entitled, at this moment, to representation 
 in the National Government. She may be a 
 State, but in a condition of ])olitical syncope 
 or suspended animation. Or she may be under 
 such abnormal influences as to render her, for 
 
 the time being, incompetent to perform the 
 functions of a State. 
 
 But if Arkansas, by reason of her ordinance 
 of secession and her open participation in the 
 war agg,inst us, has lost hei- place in the Union, 
 it is manifest that the Senate cannot now 
 admit the claimant to a seat as one of its 
 members; nor can it admit him at all, until 
 Congress, by a joint vote, has restored the 
 State to its original position. The power to 
 admit States into this Union, and, by conse- 
 quence, the power to re-admit them, are vested 
 in Congress, to be exerted by joint resolution 
 or bill, to which the concurrence of both 
 Chambers, and the approval of the President, 
 are necessary. Here I content myself with a 
 statement. For the present T waive all con- 
 sideration of the status of the seceded States. 
 j The argument is complete without it. 
 
 It is my desire to pres^ent this question on 
 
 I the facts, and not on any theory or hypothesis. 
 
 i I say nothing, therefore, on the question, what 
 
 ! constitutes a State Government in this Union ; 
 
 ] whether a State, by a process o[' suicide, may not 
 
 i cease to exist ; whether a State may not by for- 
 
 I feilure lose its rights as a Slate ; or whether, 
 
 j when the loyal government is overthrown, a 
 
 ! State does not lapse into the condition of a Ter- 
 
 1 ritory under Congressional jurisdiction, to be 
 
 ' treated like other national territory. All these 
 
 questions I put aside. I choose to present the 
 
 case of Arkansas on facts which nobody can call 
 
 in question. 
 
 It is enough that the loyal authorities were 
 overthrown, and that there were no functionaries 
 holding office under the State government^ who 
 were bound by oath to su}>port the Constitution of 
 the United States ; and since a State government 
 is necessarily composed of such functionaries 
 thus bound by the oath, there tvas no State govern- 
 ment tvhich we could recognize. Sir, does any 
 senator recognize the rebel governor of Arkan- 
 sas ? Does any senator recognize the rebel 
 functionaries who held the offices of the State ? 
 Of course not. It follows, then, that the offices 
 were empty. And this was the practical con- 
 clusion of Andrew Johnson when he began to 
 re-or£anize Tennessee by an address as early as 
 18th March, 1862. Here are his words : — 
 
 " I find most, if imt all, of the offices, both Stnte and 
 Federal, vacated, either bv actual abandonment, or by 
 the action of the incumbents in attempting to subor- 
 dinate their functions to a power in hostility to the 
 fundiimental law of tlie State, and subversive of her 
 national allegiance." 
 
 But if the offices were vacated, the machine 
 of government cotild not work. And now the 
 practical question is, how this machine shall be 
 again put in motion. Obviously, not 'by any 
 power within, hut by some power rcithout. 
 
 But it may be said that the new State or- 
 ganization in Arkansas is authorized by the 
 President's Proclamation of amnesty, and that 
 the claimant's case stands good according to 
 the promises of this exceptional paper. _ A 
 glance is enough to dispel this pretension. 
 True it is that the President put forward a 
 
28 
 
 plan for re-orsanizing loyal State <rovernments 
 ill the rebel territory ; and he proffered a gua- 
 ranty to these communities against domestic 
 violence and rebel invasion ; but he neither 
 proposed nor promised any representation in 
 Congress or in the electoral college. Nor 
 would such a proposition or promise by him 
 have possessed the sliglitest validity ; because, 
 by the Constitution, " each house is to be the 
 judge of the elections, returns, and qualifica- 
 tions of its own members." This provision is 
 inconsistent with any prerogative of the Presi- 
 dent over this question, even if such preroga- 
 tive were not controlled by that other provision 
 which reserves to Congress the power to admit 
 " new States into the Union." 
 
 The Proclamation declared that whenever in 
 an)- of the States of Arkansas, Texas, Louisiana, 
 Mississippi, Tennessee, Alabama, Georgia, Floi'- 
 ida, South Carolina, and North Carolina, a 
 number of persons not less than one-tenth in 
 number of the votes cast in such State at the 
 presidential election of 1860, each having taken 
 the particular oath prescribed by the Procla- 
 mation and not having violated it, and being a 
 qualified voter by the election law of the State 
 existing immediately before its secession, and 
 excluding all others, should re-eMahlisU a State 
 government which should be re])ublican, andin 
 no wise contravening the Proclamation oath, it 
 should be recognized as the true government 
 of the State, which should receive thereunder 
 the benefits of the constitutional provision 
 which declares that " the United States shall 
 guarantee to every State in this Union a repub- 
 lican form of government," &c. But subse- 
 quently in the same paper the President de- 
 clares " that whether members sent to Congress 
 from any State shall be admitted to seats con- 
 stitutionally rests exclusively with the respective' 
 houses, and not to any extent with the Execu- 
 tive." Nothing is said in this paper on the 
 participation of such re-organized State in 
 the approaching Presidential election ; and the 
 question seems to have been left open for the 
 judgment of Congress, to which It obviously be- 
 longs, to be settled by joint action. 
 
 It is plain, therefore, that the re-organization 
 contemplated by the President was in its nature 
 provisional. It was not complete or permanent 
 in itself, but evidently looked to the action of 
 the legislative power to determine representa- 
 tion, whether in Congress or in the electoral 
 college. Loyal governments might be estab- 
 lished in the manner indicated for the conser- ' 
 vation of local order, and these would be 
 recognized and upheld provisionally by the 
 military power. Considered from this point of 
 view, and in the absence of Congressional ac-' 
 tion on the subject, the President's plan of re- 
 construction was, to a certain extent, proper, if 
 not necessary, and very little obnoxious to the 
 objections sometimes brought against it. A 
 handful of persons keeping their loyalty might 
 justly look to the military power for support 
 against a hostile majority. Such a handful 
 
 might be allowed to set up a local government 
 for the management of their local affairs, and 
 to assist the National Government in the work 
 of restoration. All this was natural. But the 
 limitation was clear. Admitting that it was 
 right to authoi'ize the establishment of a local 
 government for the benefit of a handful of loyal 
 persons in a rebel State, it does not by any 
 means follow that such local government can 
 be entitled to representation in the National 
 Government as a loyal unit, on an equality 
 with the loyal States of the Union. The two 
 questions are entirely different, and the latter 
 was wisely left untouched by the Pi-oclamation. 
 
 Besides, the power of the President to insti- 
 tute this Government is only as Commander- 
 in-Chief of the Army. It is therefore military 
 in its character. But what proceeds out of 
 this power is, from the nature of the case, pro- 
 visional or temporary until it has received the 
 sanction of Congress. To a certain extent, and 
 from the necessity of the hour, military govern- 
 ments may be constituted by the President ; 
 but permanent civil governments ivith — 
 
 Mr. CoLLAMER. — To last beyond the war. 
 
 Mr. Sumner. — As the senator from Ver- 
 mont well suggests, " to last beyond the war," 
 tvilh a right of representation in Congress and 
 in the electoral college, cannot he constituted hy 
 the President. Such a power would be open 
 to infinite abuse, and in the hands of an am- 
 bitious President might be employed for selfish 
 purposes. The national safety, in harmony 
 with republican principles, requites that it 
 should be exercised by Congress, which must 
 take the lead in calling the new government 
 into being. 
 
 Against these conclusions there can be no 
 argument founded on principle. But it may 
 be said that the admission of senators from 
 Virginia constitutes a precedent applicable to 
 the present case. This is a mistake. The Vir- 
 ginia case is a precedent for nothing, unless it 
 be to make us more careful for the future. It 
 arose at the beginning of tlie troubles, before 
 the relations of the rebel States had become 
 fixed by pertinacious war, and it was little con- 
 sidered at the time. But, beyond all, it had this 
 peculiarity, that a large section, geographically, 
 of Virginia, had, In point of fact, declined to 
 recognize the pretension of secession, and had 
 promptly constituted a loyal government with- 
 out military intervention, so that practically it 
 had never been a part of the rebel government. 
 The circumstances were so exceptional, that 
 this case cannot be cited to determine our con- 
 duct toward a State which in all its parts, 
 throughout its Avhole jurisdiction, accepted the 
 pretension of secession, and maintained it by 
 arms. Such a State Is, beyond all cjuestion, a 
 rebel State, with no title to a place in Congress 
 or in the electoral college until re-admission to 
 its ancient rights by a vote to both houses of 
 Congress. 
 
 Surely the re-admission of a rebel State to 
 representation is not less important than its 
 
29 
 
 original admission into the Union. And, when 
 it is considered that what is done for one such 
 State will be a jirecedent for all, its importance 
 is multiplied by the number of rebel States ; 
 and this again is augmented infinitely by the 
 disturbed condition of affaiis, and the supreme 
 duty to take every precaution for the restora- 
 tion of permanent tran([uillity. It will not be 
 enough if we comply with certain forms or con- 
 stitute a State in name only. Much more must 
 be done, and all this nuiatbe placed under 
 fixed and irreversible guarantTe?T''"''^TW' will Tie 
 victory on the battle-field if these guaranties 
 are not obtained. It is to make these possible 
 that our armies are now engaged in the deadly,' 
 shock. It is in order that the future at least 
 may be sevure, that the present is given over 
 to blood and slaughter, — to graves and epitaphs. 
 And here is the difference between yonr re- 
 sponsibilities and tiiose of the soldier. T^ lat- 
 ter sees only the present ; but you must gee the 
 i future also. The soldier meets the enehiy face 
 'to "face. The statesman, hij wise precautions, 
 provides that the enemy, once confjylered, shall 
 never rise again. Vain is the work of the 
 soldier if it be not consummated and crowned 
 by the wisdom of the statesman. 
 
 For years, slsvery has been claiming its 
 guaranties in States and Territories, and these 
 chambers have echoed to the hoarse, inhuman 
 cry. At last another voice has begun to pre- 
 vail, sounding from basement to cupola, filling 
 chamber and dome with another echo : it is the 
 voice of Freedom claiming guaranties. But in 
 the ajbsence of any constitutional prohibition 
 of slavery, it is ewlent that these guaranties 
 can be obtained only under the sanction of 
 Congress acting in its legislative capacity. And 
 here we are brought again to the question of 
 representation ; for it is clear that representation 
 cannot be conceded until the guaranties for 
 freedom have been secured. Therefore, repre- 
 sentation can be obtained only under the sanc- 
 tion of Congress in its legislative capacity. 
 
 That Congress in its legislative capacity must 
 determine this question is sustained by the ne- 
 cessity of/the case, by reason, by authority, 
 and by the President's Proclamation itself. 
 
 1. I have already shown that guaranties for 
 freedom are a condition, precedent to represen- 
 tation ; so that by the necessity of the case the 
 latter must be determined by the joint action of 
 both houses of Congress. Such is one form in 
 which this necessity appears. But there is 
 another. 
 
 Congress must have, jurisdiction over every 
 portion of the United States where there is no 
 other government; but there can be no other 
 government in the rebel States, so that the 
 words of Chief Justice Marshall are as applica- 
 ble to a State without a loyal State government 
 as they were originally to a Territory : — 
 
 " I'crlinps tlie power of governinfr a Territory be- 
 longing to tlie Tnited Stati'.s, wliicti has not by becom- 
 ing a State acquired the means of self-i/overnmeiit, may 
 result necessarily from the fact tliat it is not within the 
 
 jurisdiction of any particular State, ANn is within 
 
 THE I>OWEK AND JUKISDIOTION OK TUl'; UnITKD 
 S't.VTKS." — American Insuratict Compavy \s. Carter, 
 1 reters, 5:5-2. 
 
 The three things which are here affirmed by 
 a Territory may all be affirmed of a rebel 
 State. 
 
 First, It has not the means of self-govern- 
 ment. 
 
 ,' Secondly, It is not within the jui'isdiction 
 of any p'Urtlcular State. 
 
 Thirdly, It is within the power and juris- 
 diction of the United States. 
 
 From these again the necessity of Congres- 
 sional jurisdiction ensues. 
 
 2. It would be unreasonable, if not absurd, 
 for each chamber to determine the question of 
 representation for itself Suppose, for instance, 
 that the Senate admit claimants from Arkan- 
 sas, and the House reject them. Then we 
 should witness the anomaly of a State admitted 
 to one chamber, and excluded from the other. 
 This would be a case oi' semi-admission into the 
 Union. Part would be in, and part out. The 
 senators and re])rcsentatives of the same 
 State would be compelled to separate, as, in 
 Grecian mythology, one of the inseparable 
 twins. Castor and Pollux, was translated to 
 Olympus, and the other was left npon earth. 
 
 I Surely the Constitution does not contemplate 
 I the repetition of any such fable. Arkansas 
 
 must stay away until she can be received in 
 ! both houses, and can be recognized as a unit, 
 I and not as a fraction ; but no power short of 
 
 Congress can assure this equal reception in 
 j both houses. 
 
 3. Authority is in harmony with reason. 
 I This question seems to have been anticipated 
 [ by the opinion of the Supreme Court of the 
 
 United States as pronounced by Chief Justice 
 Taney in the case of Luther vs. Borden (7 How- 
 ard's Reports, 42). Here are the words : — 
 
 " Tlie fourth section of the fourtli article of the Con- 
 stitution of tlie United States provides that the United 
 States shall guarantee to every .State in the Union a re- 
 publican form of government, and shall protect each 
 of them against invasion, and, on the application of the 
 Legislature or of the Executive (when tlie Legislature 
 cannot be convened), ag:iiust domestic violence. 
 
 •' Under thin (irtUlc if the ('inist/tiition, it rests with 
 Congress to decide irhut //arernynent is the est(ditished 
 one in a State. For, as the United States i/nnrantee 
 to each State a repnbiican government, Con;//' .is must 
 necessarily decite what government is establUhed in the 
 State before it can determine trhether it is rejiiihtican or 
 not. And when the senators and representatives of 
 a State are admitted into the councils of the Union, 
 the autliority of the government under whicli tliey 
 are appointed, as well as its republican character, 
 Is recognized by the proper constitutional authority. 
 And its decision is binding on every otiier department 
 of the government, and could not be questioned in a 
 judicial tribunal." 
 
 According to these positive words, " it rests 
 with Congress to decide what government is 
 the established one in a State." But Congress 
 can decide only through joint action. 
 
 4. The Constitution also, by a positive text, 
 seems to place the question beyond doubt. 
 There are express words, as we have already 
 seen, declaring that '' the United States shall 
 
30 
 
 truarantee to every State in the Union a repub- 
 lican form of government." If "these words 
 stood alone, the case would be clear; but it 
 becomes clearer still when we revert to the 
 other clause, by which it is provided that "the 
 Congress shall have power to make all laws 
 which shall be necessary and proper for carry- 
 ing into excculion all powers vested by this Con- 
 stitution ill the Government of the United States." 
 Now, since the guaranty is vested in the gov- 
 ernment of the United States, it follows that 
 Congress has the power for carrying it into 
 execution. In Aikansas, a republican govern- 
 ment has been overthrown by rebellion. Con- 
 gress must see that such government is restored ; 
 and to this end it has all needful power. Con- 
 gress, and not the President, must decide when 
 the restoration has taken place. 
 
 5. There is also the President's Proclamation, 
 which, by its very terms, necessarily implies 
 tlie action of Congress in the restoration of a 
 State to the Union. There is first the positive 
 declaration that " whether members sent to 
 Congress from any State shall be admitted to 
 seats constitutionally, rests exclusively with the 
 respective houses, and not to any extent with 
 the Executive." But the language of the 
 Proclamation and of the accompanying message 
 plainly assumes tiiat the rebel States have lost 
 their original character as States of the Union. 
 Thus in one place the President says that " loyal 
 State governments have ibr a long time been 
 suhrerted." But if subverted, they are no longer 
 States. In another place he proposes to " re- 
 inaugurate loyal State governments." But a 
 proposition to re-inaugurate implies a new start. 
 In another place he proposes to ^'re-establish a 
 State government which shall be republican." 
 But we do not re-establish a government which 
 continues to exist. In another place he pro- 
 poses to " set up " a State government in the 
 mode prescribed. But vi^hatever requires to be 
 set lip is evidently down. In another place 
 he seeks to guarantee and protect a " revived 
 State government." But we revive only what 
 is dead^ or, at least, faint. There is still another 
 l)lace, where the President evidently looks to 
 the possibility of a change of name, boandary, 
 subdivision, constitution, and general code of 
 laws, in the restored State. These are his iden- 
 tical words: "And it is suggested as not im- 
 proper, that, in constructing a loyal State gov- 
 ernmei t in a State, the name of the Slate, the 
 boundar;/, the subdivisions, the constitution, and 
 the general code of laws, as before the Rebel- 
 lion, be maintained." Thus the President does 
 not Insist that even the name and boundary of 
 a State shall be preserved. He contents him- 
 self with suggesting that it will not be " improp- 
 er " to preserve them "in constructing a loyal 
 State government." Of course this suggestion 
 of what is not improper implies necessarily that 
 in his opinion even these great changes were 
 within the discretion of the revived community. 
 
 I have called especial attention to the lan- 
 guage of the President, because it constantly 
 
 assumes, in a succession of phrases, that the 
 rebel States are in an abnormal condition, from 
 which they are to be recovered or revived ; and, 
 since such restoration or revival can be consum- 
 mated only by the action of Congress, it is 
 reasonable to infer that such was his expecta- 
 tion. At all events, the Proclamation, by its 
 repeated assumptions with regard to the rebel 
 States, testifies to the necessity of Congressional 
 action. 
 
 We have already seen that Andrew Johnson 
 had declared the State of Tennessee " vacated " 
 by all local government which we are bound 
 to respect; and Arkansas was in a similar situ- 
 ation. But this language obviously harmonizes 
 with that of the President. 
 
 Such are some of the arguments for the 
 power of Congress over this question. Others 
 might be adduced ; but I have said enough. 
 The necessity of the case, reason, the au- 
 thority of the Supreme Court, the Constitu- 
 tion, and the President's Proclamation, — each 
 and all tend to the same conclusion, eve?i loilh- 
 out resorting, to those tear powers which are all 
 within the reach of Congress. But, if we glance 
 at the latter, we shall fnd the power of Congress 
 declared beyond question. There is nothing 
 which the President may do as Commander- 
 in-Chief which Congress may not direct and 
 govern, according to the authoritative words 
 of Chancellor Kent : — 
 
 " Though the Constitution vests the executive power 
 in the President, and dec^lares him Commander-in- 
 Cliief of the Army and Navy of tlie United States, 
 these poioers must necessnrlty be sii.lwrdiiuite to tlie Irg- 
 is lative power in Congress." — KenVs Cominentaries, 
 vol. i. p. 202, note 5. 
 
 And these powers, vast as they may be when 
 called into activity by the exigency of war or 
 rebellion, become as constitutional as if speci- 
 fied precisely in a written text. 
 
 Mr. President, there is a saying of antiquity 
 which is applicable to this question ; MaJ:e 
 haste slowly. Do not fail to make haste ; but 
 let your haste be governed/ by wisdom and 
 prudence. In making haste, do not sacrifice 
 all safeguards for the future. In your haste 
 to welcome senators from rebel States, do not 
 forget every thing else ; do not forget the prin- 
 ciples of republican institutions, which are 
 otiended by the rule of a minority ; do not 
 forget the principles of justice among the 
 States, which will be shocked by the admission 
 of a fraction of a rebel State to an equality 
 of power with loyal States ; do not forget the 
 disturbed condition of the rebel States, ren- 
 dering the civil authorities subordinate to the 
 military ; do not forget the necessity of a con- 
 necting link of legality between the old and the 
 new ; do not forget that commercial inter- 
 course must be restored, and every ban of 
 proclamation or statute must be removed, be- 
 fore representation can be allowed ; and still 
 further, do not forget that the rebel States, by 
 their own acts, sustained by bloody war, have 
 voluntarily placed themselves outside the pale 
 of political association, until Congress shall 
 
31 
 
 rt'cognize them again as entitled to tln-ir 
 oi-i<;inal ecjiiality ; and, above ail, do not tbr- 
 o-et^that there can be no recognition of a rebel 
 State until its permanent tranciuijlity has been 
 assured by irreversible guaranties whieh no 
 local power can disturb. Keep these tilings in 
 mind, and then make haste. 
 
 Of course, when, within the confines of a 
 State, the Reboilion is trimnijhantly subdued, 
 and the great body of the people testifies an 
 unmistakable loyalty ; when local elections can 
 be held according to the ordinary municipal 
 forms ; when the laws and not arms prevail ; 
 and when a government, republican in fact as 
 in name, making slavery forever impossible, 
 under any form or pretence, has been perma- 
 nently established, — then will Congress, by 
 proper legislative action, rejoice to welcome 
 tiie newly constituted State to its eijual share 
 in the National Government. But such wel- 
 come must not he ]}recipi(ate. It can be offered 
 only after a most careful inquiry into the 
 actual condition of things, and the assured 
 conviction that the rebel State has been newly 
 constituted in fact as in name. And this cau- 
 tion is needed not only for the good of the 
 Union, but for the good of the newly consti- 
 tuted State, which must be saved from prema- 
 ture responsibilities beyond the measure of its 
 present powers. 
 
 Sir, it is much to be a State in full fellow- 
 ship and equality with other States repre- 
 sented in this Chamber and in the other 
 Chamber, with a voice in the election of Presi- 
 dent and Vice-President, and with a star on 
 the national flag. To be admitted into these 
 prerogatives and privileges, a State must be 
 " above suspicion," and it must be able to use 
 well all the great powers which belong to a 
 State. But if a State is not yet " above sus- 
 picion," and if it is not sti'ong enough to stand 
 alone, even against domestic disturbers, it can- 
 not expect immediate recognition. It must 
 wait yet a little longer, until, restored at last 
 in character and in strength, it can do all 
 the duties of a State, and with master-hand 
 grasp that Ulyssean bow which pretenders 
 strive in vain to bend. 
 
 ■ Mr. President, I conclude as I began, with 
 my heart's gratitude to those brave citizens 
 who again in Arkansas have lifted the national 
 banner. Let them not be disheartened ! Their 
 country is with them in all their perils and all 
 their efforts, longing to accept them agftin into 
 ancient fellowship and e(|uality; but the time 
 for this welcome has not yet come. Mean- 
 while let them remember that " they also 
 serve who only stand and wait." 
 
 § 3. 
 
 AN OLIGARCHY OF THE SKIN INCON- 
 SISTENT WITH A REPUBLICAN 
 GOVERNMENT. 
 
 From the debate on the Recognition of the 
 State Government of Louisiana in the Senate, 
 March 24, 1865. 
 
 Mr. HENDERSOisr. — The senator from Ken- 
 tucky thinks the Constitution of Louisiana is 
 the offspring of military usurpation ; but he does 
 not say that the Constitution itself is anti-re- 
 publican. 
 
 Mr. Sumner. — I do. 
 Mr. Henderson. — You do ? 
 Mr. Sumner. — Certainly. 
 Mr. Henderson. —The senator from Mas- 
 sachusetts says that these State Constitutions 
 are not republican in tbnn. Will he tell me in 
 what respect '? 
 
 Mr. Sumner. — Because they do not follow 
 out the principles of the Constitution of the 
 United States. 
 
 Mr. Henderson. — I should like to know 
 in what particular. The answer is a very gen- 
 eral one indeed. He refuses, then, to specify. 
 The senator can answer more particularly 
 hereafter if he chooses. He says these Consti- 
 tutions do not follow the Constitution of the 
 United States. I have looked o\er them, and 
 I find no objection to them. The senator from 
 Massachusetts says the act of secession took the 
 States out. In the name of sense, cannot the 
 act of the loyal men bring them back ? 
 
 Mr. Sumner. — Does the senator refer to 
 me as having ever said that the act of secession 
 took a State out ? 
 
 Mr. Henderson. — I understand the sen- 
 ator to claim that these States are in a territo- 
 rial condition ; that they are not States ; that, 
 by losing their State governments in the act of 
 secession, they lose their specific identity as 
 States. 
 
 Mr. Sumner. — I would rather the senator 
 should use my language than his own wdien he 
 undertakes to state my position. I have never 
 stated that any act of secession took a State 
 out. 1 have always said Just the contrary. No 
 act of secession can take a State out of this Union ; 
 hut the State continues under the Constitution of 
 the United States, subject to all its requirements 
 and hehestSj including especially the guaranty of 
 a repuhlican form of government. The govern- 
 ment of the State is subverted by secession. The 
 senator does not recognize it as legal or con- 
 stitutional, I beheve, any more than I do. 
 Where, then, is the difTerence between us ? 
 There is no government which he or I recog- 
 nize ; but Ave do hold that the whole region, 
 the whole territor}', is under the Constitution 
 of the United States, to be protected and 
 governed by it. 
 
 Mr. Henderson. — The senator then ad- 
 mits that the States are in the Union. Now, I 
 
32 
 
 ask him if we can restore the Union without 
 restoring State governments in the seceded 
 States. 
 
 Ml!. Sumner. — That is the desire I have 
 most at heart, to restore State governments in 
 those States. 
 
 Mr. Henderson. — Tlien I desire to ask 
 the senator if the loyal men in one of those 
 States acquiesce in the Constitution presented 
 here, are they not entitled to govern the State 
 under it. 
 
 Mr. Sumner. — If the loyal men, iclrite and 
 black, recor/nize it, then it will be republican m 
 form. Unless that is done, it will not be. 
 
 Mr. Henderson. — Now, Mr. President, I 
 desire to ask the senator if the Congress of 
 the United States can interfere with the ritjht 
 of suffrage in one of the American StatesTof 
 this Union. I put the question to him as a 
 constitutional lawyer. 
 
 Mr. Sumxer. — I answer at once as a con- 
 stitutional lawyer, that at the present time, under 
 the words of the Constitution of the United 
 States, declaring that the United States shall 
 guarantee to every State a republican form of 
 government, it in the houndenduty of the United, 
 States by act of Congress to (fuaranlee complete 
 freedom to every citizen, and immunity from oil 
 oppression, and absolute equality before the laic. 
 No government that fails to guarantee these 
 things can be recognized as republican in form 
 according to the theory of tlie Constitution of 
 the United States, lohen the United States are 
 called to enforce the constitutional guaranty. 
 
 After further discussion, the following passage 
 occurred : — 
 
 Mr. Henderson. — To secure national 
 supi-emacy, you must have the aid of State 
 authority. For legitimate State authority, you 
 must rely upon the loyal voters. 
 
 Mi{. Sumner. — There is where I agree pre- 
 cisely with the senator; and I should like to 
 hold him to that. He says the loyal me'n must 
 form the government, and we should recognize 
 that government ; and yet he insists upon a 
 mere oligarchy forming it, and an oligarchy of 
 the skin. 
 
 Mr. Henderson. — The senator says he 
 agrees with me in my position, but insists that 
 I am in fovor of an oligarchy. If I am in 
 favor of an oligarchy, and he agrees with me, 
 then he also wants an oligarchy. [Laughter.] 
 
 Mr. Sumner. — The senator plays upon 
 words. 
 
 Mr. Henderson continued his argument at 
 length, replying to various objections brought 
 against the Louisiana State Government on ac- 
 count of the irregularity of the proceedings. 
 Upon his statement, that the failure of the reb- 
 els to vote did no liarm to the great principles 
 of republicanism, the following interruption took 
 place : — 
 
 _ Mr. Sumner. —It was the failure of loyal 
 citizens to vote that did the damage. 
 
 Mr. Henderson. — I answer that by asking 
 what loyal men did Gen. Banks prevent from , 
 voting. 
 
 Mr. Sumner. — All the colored race. 
 
 In the Senate, Feb. 27, the same ques- 
 tion was still under eonsidetation, when Mr. 
 Sumner spoke as follows : — 
 
 Mr. President, I remember last summer that 
 good fortune threw me in the path of a distin- 
 guished gentleman just returned from Louisi- 
 ana. I think he had been present at the sit- 
 tings of the convention whose work finds such 
 an advocate in my friend from Illinois. At any 
 rate, he had been in New Orleans at the time, 
 in the discharge of important public duties. In 
 reply to an inquiry witli regard to that conven- 
 tion, he said, compendiously, that it was "noth- 
 ing but a stupendous hoax," — yes, sir, nothing 
 but a stupendous hoax. 
 
 Here Mr. Sumner was interrupted by Mr. 
 Grimes of Iowa, who said, that, if the Senate 
 would give him a committee, he would show 
 fraudulent voting in Louisiana. 
 
 Mr. Sumner. — I doubt not that my friend 
 from Iowa is right. In my opinion the proposi- 
 tion which the senator from Illinois is so earn- 
 estly pressing upon the Sertate, when we con- 
 sider its origin and character, is in itself very 
 little different from a stupendous hoax. I say 
 nothing about the convention, for I was not 
 there. I did not see it. On that point, I sim- 
 ply cite the testimony of another. But the 
 proposition of the senatc^r is before us, and we, 
 are familiar with its nature. Every moment 
 gives us new glimpses of the violence and fraud 
 with which it is associated. Perhaps this ex- 
 pression I have quoted is hardly grave enough 
 in speaking of such a proposition, where mili- 
 tary power and injustice to a whole race have 
 been enlisted in forming the constitution of a 
 State, in defiance of the self-evident truths of 
 the Declaration of Independence. The United 
 States are bound by the Constitution " to guar- 
 antee to every State a republican form of gov- 
 ernment." Now, when called to perform this 
 guaranty, it is proposed to recognize an oli- 
 garchy of the sivin. The pretended State Gov- 
 ernment in Louisiana is utterh' indefensible, 
 whether you look at its origin or its character.. 
 To describe it, I must use plain language. It 
 is a mere seven-months' abortion, begotten by 
 the bayonet in criminal conjunction with the 
 spirit of caste, and born before its time, rickety, 
 unformed, unfinished, whose continued exist- 
 ence will be a burden, a reproach, and a wrong. 
 That is the whole case ; ancl yet the senator 
 from Illinois now presses it upon the Senate at 
 this moment, to the exclusion of the important 
 public business of the country. 
 
i 
 
il 
 
 LiBRARV OF CONGRESS 
 
 013 744 797 6