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which might possibly be acceptable; and I also distinctly protested that the Executive claimed no right"

Hearken to his language—

"that the Executive claimed no right to say when or whether members should be admitted to seats in Congress from such States. This plan was, in advance, submitted to the then Cabinet, and distinctly approved by every member of it. One of them suggested that I should then, and in that connection, apply the emancipation proclamation to the theretofore excepted parts of Virginia and Louisiana; that I should drop the suggestion about apprenticeship for freed people, and that I should omit the protest against my own power in regard to the admission of members of Congress."

Will the Senator from Pennsylvania have the goodness to listen to this language?

Such was the peculiar caution, on this mighty subject, of Abraham Lincoln. He disclaimed in the most distinct and emphatic terms both in his proclamation of the 8th of December, 1863, and in what is called his dying speech, made only a few days before his death, all authority in himself to impart to the States he was attempting to reconstruct any constitutional right to elect members of Congress, whether Senators or Representatives, in such a way as to give them a legal title to be admitted to seats. That is what he means and exactly what he means-nothing more, nothing less. That is by no means the doctrine of the present day. The claim now is that the right to elect, and consequently the legal right to have the party elected, if possessing the requisite personal qualifications, admitted to his seat in either House, has been imparted by the President's authority and under his commission, and that Congress are concluded and debarred any inquiry into the right claimed.

Again, sir, Mr. Lincoln did not confine himself to the peculiar mode of reconstruction mentioned in that proclamation. Early in July following, as the world knows, Congress with great unanimity passed a bill for the reëstablishment of the rebel States, commonly known as the "Winter Davis bill," a bill which President Lincoln did not see fit to approve; but for his omission to approve it he gives, in the proclamation he issued on the 8th of July, 1864, the following reason:

"Now, therefore, I, Abraham Lincoln, President of the United States, do proclaim, declare, and make known, that while I am, (as I was in December last, when by proclamation I propounded a plan for restoration,) unprepared, by a formal approval of this bill, to be inflexibly committed to any single plan of restoration; and while I am also unprepared to declare that the free State constitutions and governments already adopted and installed in Arkansas and Louisiana shall be set aside and held for naught, thereby repelling and discouraging the loyal citizens who have set up the same as to further effort, or to declare a constitutional competency in Congress to abolish slavery in States, but am at the same time sincerely hoping and expecting that a constitutional amendment abolishing slavery throughout the nation may be adopted, nevertheless I am fully satisfied with the system for restoration contained in the bill as one very proper plan for the loyal people of any State choosing to adopt it, and that I am, and at all times shall be, prepared to give the executive aid and assistance to any such people, so soon as the military resistance to the United States shall have been suppressed in any such State, and the people thereof shall have sufficiently returned to their obedience to the Constitution and the laws of the United States, in which cases military governors will be appointed, with directions to proceed according to the bill."

Here it is apparent that Mr. Lincoln was not willing to be bound down even to his own plan as sketched in his proclamation of the 8th of December, 1863, but that he was entirely satisfied with the bill he had omitted to approve; and he solemnly promised, in his proclamation of July, 1864, that whenever military resistance should cease in any of the rebel States, and the people in those States were willing to return to their loyalty, he would give them his executive aid by appointing a provisional governor and giving governors the authority granted by the bill. Here were his two schemes, both of them liberal, and the last, had the bill been approved, free from all constitutional objections.

Now, sir, let Mr. Lincoln be no longer quoted here or elsewhere as being the author of this enormous policy by which the whole power of Congress over the subject of reconstruction is to be absorbed into the single hand of the Executive. Do not desecrate the name of that

great and good man by imputing to him such a gross attempt to usurp the powers of Congress.

Mr. President, the honorable Secretary of State, in the prepared speech delivered by him at the Cooper Institute, in New York, on the 22d of February, simultaneously with the delivery of President Johnson's speech, to which I have alluded, speaking of the restoration of the rebel States, uses the following very strange language:

"Now, I am sure this plan is going to succeed." That is, the plan of President Johnson; the plan of immediate, unconditional readmission into Congress.

"I am sure of it, because some plan must succeed." He is perfectly sure that a particular plan is going to succeed, because he is sure some plan must succeed. When I was a school-boy, attending to my logic, had I uttered such a sentence, I think the professor would have told me it was a non sequitur. But let us proceed. The Secretary continues:

"And because this is the only plan which has ever been attempted, or which I think ever will be attempted."

The only plan! Had the honorable Secretary forgotten the plan of Mr. Lincoln, as different in principle from that of Mr. Johnson as light from darkness? He says:

"Certainly it is the only one that can be attempted with success."

Sir, we will try that issue. I make no boast; I throw out no menace and no defiance; but I say with confidence here to the friends of this policy that I will try that issue before the country. I know of nothing in it which should deter an honest man from espousing the negative; and I tell you, sir, that when this issue is fully and fairly presented to the people of the United States, when they come to understand what it is in its length and in its breadth, in its designs, in its purposes, in its enormous dangers, in its injustice, in its cruelties, and in all its deformities, you need not doubt that that honest and loyal and gallant people who have done so much to preserve the Government, to maintain its dignity and its honor, will utter a lasting and an indelible rebuke to the policy so confidently and so boastfully advocated by the Secretary of State. He says further:

"It is nearly executed already. The States are there"

Hearken to this

"The States are there, just as fully in the exercise of their State functions and powers and faculties as the State of New York is, at Albany, to-day."

What is the logical consequence of this? If the eleven rebel States are at the present time as legitimately and constitutionally in the exercise of their proper functions, and as much entitled to be represented in the two Houses of Congress as is the State of New York, and if Congress are wantonly and wickedly refusing to allow them the same privilege of representation here as is enjoyed by the State of New York, what is the consequence? What is the logical result of this position, or rather assumption, of the Secretary of State, that they are as perfectly rehabilitated, that they are as perfectly in the enjoyment of their State rights as is the State of New York?

Sir, I would not impute to the Secretary of State any unlawful intention; I do not; but I cannot read this language and fail to see that it at least squints at the possibility of an armed interference at some future day and the establishment by means of the executive sword of these reconstructed States regularly in Congress, with the full quota of Senators and Representatives. If they are constitutionally entitled to this representation, as much so as New York, it is wholly unconstitutional for us to keep them out, and clearly our sworn duty to let them in..

In short, according to the Secretary of State, the conduct of Congress upon this subject is usurpatory, tyrannical, revolutionary, and even treasonable. There is but one step between such a position and advising the employment of military force to carry out its purposes. He says: Representatives can come up and lay their hands upon the Bible and take the oath, and remain there.

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Now, I think this is going to be done. It may not be done to-day. I thought it ought to be done on the first day of this session of Congress. Others thought it better to wait and inquire-take a recess. Then I thought it had better be done when the recess was ended. Others thought it had better be postponed, to the 1st of February. Now they are talking of postponing it until they can pass some law."

It is quite apparent that the Secretary deems no law necessary to the reintroduction of the Senators and Representatives of the rebel States into these Halls; he seems to have ignored entirely the effects of the war upon the rebel States and the legislation of Congress, and looks upon them as just as much entitled at this day to be readmitted here as the State of New York is entitled to enjoy the benefits of her present representation here. This readmission, he says, is all that remains to be done:

"And it is the same plan that Abraham Lincoln projected before he was removed from his high trust, the same one that Andrew Johnson was executing for him in Tennessee. It will be done.

"Then, as the Union is to be restored some time there is to be some plan which is practicable, and if there is some one, then some one who is in favor of it can tell me what that plan is and when it is likely to be adopted. I pause for a reply. I have never seen any other plan proposed. I have seen this plan suggested at two successive Congresses, that, notwithstanding the conditions of the States, they should be legislated into the condition of Territories, and should be governed by the military arm till they had performed sufficient acts of purgation, and should be brought in at some far-off period."

I read from the speech chiefly to show what the real doctrine is, known as "my_policy;" that it is a claim on the part of the Executive that he in his decrees has reëstablished these States and put them in possession of all their functions as States, without the assistance and without the sanction of Congress, and that therefore they are entitled to be represented now; and that for Congress to wait any longer, to keep them out by any statute or any measure it may see fit to resort to, is doing a great wrong to the insurrectionary States. Sir, we are doing no wrong to the insurrectionary States. I concur with the honorable Secretary of State when he says the time will come when they will be readmitted to the Union with all their rights and privileges, with their full complement of Senators and Representatives; but I do not hold that it is the duty of Congress to admit them now and immediately. I think we ought to take time to consider, that we ought to look especially to the condition of the southern people, and ascertain to our own satisfaction whether they are in such a social and political condition as to make it safe and secure for us to readmit them.

Sir, I reject, as entirely untenable, the principle, if it can be called a principle, that whenever a disloyal State sends to Congress a loyal representative that loyal representative ought to be admitted to his seat if he has been regularly elected. Upon this point a great deal has been said both in Congress and out of Congress. We are told that if they send here loyal Senators, our duty is to admit them; if they send here loyal Representatives, the duty of the House is to admit their Representatives. Sir, I deny it. That assertion is in direct inconsistency with the essential principle of republican government. What is a representative who is sent to the Congress expected to do? What is his leading characteristic? Is he not expected to represent the interests and the feelings of the constituency who send him? Certainly. Who expects that a particular constituency will elect a man to Congress and send him here as their representative, whose principles are utterly at war with theirs, or whose interests or principles or prejudices are inconsistent with theirs? And yet the honorable Senator from Connecticut holds, I believe, that we ought to admit the loyal representatives without the slightest reference to the character of the constituency whom they represent. Sir, that is a great fallacy.

Mr. DIXON. If the Senator had taken the trouble to listen to what I said, or to read it afterward, he would have seen that I expressly stated that the constituency should be loyal as well as the representative.

Mr. HOWARD. Perhaps I mistake the

Senator's views; but certain it is that the principle has been repeatedly advocated on this floor.

Mr. DIXON. The President said the same thing in the message from which the Senator has just read. The Senator will certainly find it in one of his messages.

Mr. HOWARD. I wish the Senator would look it up for me. I have not been so fortunate as to discover it. Mr. President, it is the character of the constituency that is to be represented in Congress by the person elected, and not that of the mere representative himself. He is but their servant and agent.

Mr. DIXON. If the Senator will allow me, I can repeat from recollection what the Presi dent says. The President says that each State ought to be represented when they present themselves, not only in an attitude of loyalty and harmony, but also in the persons of representatives whose loyalty cannot be questioned under any legal or constitutional test. That is his language.

Mr. HOWARD. I shall feel better satisfied when I read the exact language of the President, a little more secure as to what Mr. Johnson actually means. But, sir, the idea of allowing a representative who swears that he is loyal to come to Congress and take his seat, for no other reason than that he swears he is loyal, while at the same time the fact is his whole constituency is disloyal, unfriendly to the Government, and indisposed to uphold it, is to me a most inexpressible absurdity. It is the character of the constituency, and the constituency alone, that is to be looked to. Only a few months ago every one of these several southern constituencies was in open rebellion against the Government. There was not a single congressional district throughout the rebellious States that did not have within its limits a large majority, and the whole community had been declared public enemies by Congress. I was very glad the other day to hear the honorable Senator from Pennsylvania, who a year or so ago had spoken so eloquently here in favor of dealing gently with our southern brethren, who told us over and over and over again that the Union element was large and strong and powerful throughout the South, and that, in order to bring the war to a successful and speedy close, our best policy was to cultivate and befriend that portion of the rebel community-I was glad to hear him, the other day, acknowledge that those Union men, once so precious and so numerous, were but rari nantes in gurgite vasto; that they were few and far between, swimming, I suppose, almost out of sight of each other in the vast and stormy gulf of the rebellion.

Well, sir, such is the fact. It is a fact, and it has been recognized for four years past-a fact recognized by the laws of the United States and by the decision of the Supreme Court-that practically the whole southern people were hostile to the United States, hostile to this Government, anxious to overthrow it, determined to overthrow it, making sacrifices beyond those ever submitted to by any other portion of the human family to overthrow, not a bad, oppressive Government, but a Government which had never been felt by them except in the benefits it conferred upon them. How vain, how idle is it to pretend that within only a few months from the close of these bloody scenes it has transpired that a large majority or any majority or any considerable portion of the people of those States have become loyal and friendly to the Government, willing to go on and act the part of good citizens in upholding it and carrying out its purposes. I have been in the way of obtaining some information on the subject, which it may not be useless to lay before the Senate. I ask leave to read, for the purpose of showing what is the actual condition of the rebel population in the South, especially in Virginia, an extract from the testimony taken before the reconstruction committee of Hon. John M. Botts. The following question was put to him:

"What is the feeling of the ex-rebels in Virginia

generally toward the Government of the United States?"

He answered:

"At the time of the surrender of General Lee's army and the restoration of peace, I think there was not only a general but an almost universal acquiescence and congratulation among the people that the war had terminated, and a large majority of them were at least contented, if not gratified, that it had terminated by a restoration of the State to the Union. At that time the leaders, too, seemed to have been entirely subdued. They had become satisfied that Mr. Lincolu was a noble, kind-hearted, generous man, from whom they had little to fear; but when he was assassinated, and Mr. Johnson took his place, they remembered Mr. Johnson's declarations in the Senate of the United States before the war, his own treatment during the war by the secession party, and his declarations after he came to Washington as the Vice President of the United States, in one or more speeches, but especially in a speech in which he declared that treason was a crime which must be punished, they felt exceedingly apprehensive for the security of their property, as well as for the security of their lives; and amorehumble, unpretending set of gentlemen I never saw than they were at that time. But from the time that Mr. Johnson commenced his indiscriminate system of pardoning all who made application, and from impositions which I have no doubt were practiced upon Mr. Johnson in pardoning the worst class of secessionists among the first, they became bold, insolent, and defiant; and this was increased to a very large extent by the permission which was immediately after the evacuation of Richmond given by General Patrick, the Democratic copperhead provost marshal of the army of the Potomac, to the original conductors of the public press before the rebellion to reëstablish their papers, I believe without restriction or limitation upon any of the proprietors; since which time I think the spirit of disloyalty and disaffection has gone on increasing day by day and hour by hour, until among the leaders generally there is as much disaffection and disloyalty as there was at any time during the war, and a hundred fold more than there was immediately after the evacuation and the surrender of the army. This is the conclusion to which my mind has been brought by the licentiousness of the press and by communications which are made to me from all parts of the State, either verbally or by letter, from the most prominent and reliable Union sources."

And such is the concurrent testimony of a great majority of all the numerous witnesses examined before that committee; the great weight of proof is, that instead of producing quietude, peace, and contentment in the insurrectionary districts, the policy of Mr. Johnson in extending pardons and amnesty almost indiscriminately has had the effect to make the rebels and their friends more defiant and more contemptuous toward the Government.

He

Mr. President, I have stated that the business of reconstructing the States belongs exclusively to Congress, and not to the Executive; that that is a thing to be done by the exercise of the law-making power only. The President of the United States cannot make laws. has no power of legislation whatever under the Constitution. On the other hand, the Constitution itself, in its first article, declares emphatically that "all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives;" leaving no residuum of legislative power to be exercised by any other functionary of the Government, but giving the whole of it, without stint and in the broadest terms, to the two Houses of Congress. Now, I ask, what power has the President by an imperial decree to reconstitute, reconstruct, or rehabilitate, or recreate a State of this Union which for four long years had forfeited its political existence as a State by turning its arms as a community against the United States? What had become of these State powers during these years of war? Mr. Johnson seems to hold that these States were never out of the Union, but always in the Union.

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Mr. SAULSBURY. Will the honorable Senator allow me to ask him a question just there? Mr. HOWARD. Yes, sir.

Mr. SAULSBURY. If the doctrine for which he now contends be true, I wish to ask the honorable Senator this question: after Tennessee had assumed to secede, and after Virginia assumed to secede, if they were out of the Union and not entitled to representation upon this floor, why did he, as a Senator, countenance the presence of the present President of the United States as a Senator on this floor from Tennessee and the Senators from Virginia as representing a State?

Mr. HOWARD. Mr. President, when I

first took my seat in this honorable body I found the two Senators from Virginia here already, but I am frank to say, in reply to the question of the honorable Senator from Delaware, that if the question had been put to me, as a Senator, after the secession of Virginia from the Union, or rather after she had taken up arms as a government against the Government of the United States, whether I would admit Senators elected by that State, no matter when, to come into the Congress I should have an swered "No."

Mr. SAULSBURY. One other question: was not the honorable Senator a member of this body when my friend on my left [Mr. WILLEY] was admitted to a seat on this floor, and when the late Senator from Virginia, since deceased, was admitted to a seat on this floor, both occurring since the war commenced?

Mr. HOWARD. I do not remember whether I was a member of the body at that time or not.

Mr. SAULSBURY. I refer to Hon. Mr. Bowden.

Mr. HOWARD. I know the precedent had already been fixed by the action of the Senate before I took my seat here. The Senators from Virginia were in their seats, and I think there was a change afterward; but the question never was raised as to the propriety of recog nizing the Senators from Virginia. It will be remembered, however, that the government of old Virginia has ever been recognized by the action of Congress. Although, as one of the results of the insurrection in that State, their civil government had become dissolved and destroyed, still there was a government, a gov ernment for the whole of Virginia, organized and in activity in western Virginia; and that government was recognized by the Congress as being the legitimate government of the State. I did not feel disposed to disturb the action of Congress on that subject. But I beg to put t the question to the honorable Senator whether he objected to it.

Mr. SAULSBURY. Yes, sir; I did.

Mr. HOWARD. I am very glad to hear it. Mr. SAULSBURY. One other question. The honorable Senator says that the General Government recognized the Legislature which sat at Wheeling as the Legislature of the whole of Virginia. Now, I wish to ask the Senator whether Virginia as a State, as a whole state, before its division into East and West Virginia, had not assured to secede from the Union, and whether the military power of Virginia was not in possession of a great part of what is now West Virginia.

Mr. HOWARD. I believe the mere historical fact was this: upon the passage of the ordinance of secession, in April, 1861, by the Virginia convention, a new government for the State of Virginia was organized in West Virginia. It was recognized as the government of that State by Congress, and we have ever since recognized that government as the government of Virginia, and recognize it to this day. I believe there has been no interregnum whatever.

Mr. President, I was speaking of the condi tion of the rebel States during the war. It is often said that it is impossible for a State to get or to be out of the Union; that these rebel States have always been in the Union; that they have tried to get out of the Union, but cannot get out of the Union; that that has turned out to be physically impossible; and the result, in the minds of some, is that they have always been in the Union and of the Union; that none of their faculties have been lost or impaired by the rebellion, and that on the cessation of the rebellion they are entitled to all the rights and privileges they ever pos sessed as members of the Union. Now, sir, what was the actual condition of the rebel States during the war is rather a barren question; but I have ever been of the opinion that the rebel States were actually out of the Union from the time they took up arms against the Government down to the time when their armies were surrendered or disbanded.

Mr. COWAN. What was the war for, then? Mr. HOWARD. I will tell you what the war was for. There is no doubt about this fact, that there was a universal condition of armed hostility on the part of the seceding States against the Government. That is admitted. There is no doubt about the further fact that for four years and more the Government was engaged in armed hostility against these seceding States. I am not going into the question as to what is the foundation of all government, but I say to Senators, and especially to the Senator from Pennsylvania, that in contests between political communities I know of no law higher than physical force. Does he? Will he answer?

Mr. COWAN. I shall be glad to answer at some length, hereafter; but I will give the honorable Senator enough to start on now to carry him through. The several States of the Union are, in my judgment, political communities

Mr. HOWARD. I beg leave to restate the question in order to avoid wandering.

Mr. COWAN. Then the gentleman does not

want an answer.

Mr. HOWARD. Yes, sir; I want an answer. The question which I put to the honorable Senator is this: do you know of any higher law than that of physical force between contending political communities?

Mr. COWAN. I have only to reply that the question in itself is nonsense; there is no sense about it; and nobody could answer it directly as a question supposed to contain a sensible proposition. I know what the gentleman means by the question, and I will answer him at the proper time, or now if he desires it; but I do not want to interrupt him.

Mr. HOWARD. I am drawing my remarks to a close. I supposed the honorable Senator would treat my query very much in that way. Mr. COWAŃ. If the Senator will allow me I will put it in shape and answer it.

Yes, sir, we have a right to proclaim that they are conquered, as much conquered as ever Gaul or Germany was conquered by the Roman arms; as much conquered as Canada was conquered by the British forces during the Seven Years' war; as much conquered as was the British Government upon this continent in the triumph of our arms-conquered, subjugated. They lay at our feet. They had no Legislatures of their own. There was no legislative authority whatever which we either recognized or were bound to recognize as the conqueror. There was no other will that could prevail, or that ought to prevail in the conquered territory but the will of the United States in Congress assembled the will of the conqueror. It was for us, and for us alone, sitting in the two Houses of Congress to give the law to the conquered, not by any means the væ victis, not a law of vengeance, destruction, or desolation, but a law which should carry out the just purposes and wishes of the American people in regard to the rebel States; a law which in the end should restore them to their original condition and functions as States of the Union; and no Union man here or elsewhere has ever, so far as I know, contemplated anything else but that, ultimately, and within a reasonable time, and in a secure manner, these conquered States shall be brought back into the Union. It is necessarily the work of law, and law arising under the Constitution itself.

It is said that these States have the right of coming back to Congress. I grant it. They have a right to return to their allegiance and to be represented in the two Houses of Congress; but that right does not accrue, and cannot accrue, until the conqueror-the Congress of the United States-has seen that it is consistent with their interests, with the interests of their people, the interest of the whole people of the United States. We hold them to-day not by their own will, not by their willing fealty to the Government, not in virtue of their fidelity to the Constitution; but solely, in my judgment, even to-day, by virtue of this highest law known to communities-physical force. What keeps your provisional governors in their seats to-day? The Federal bayonet. What preserves even old Virginia to-day from a renewal of insurrection? What to-day hinders another conspiracy, the calling together of another southern congress, the election of another southern president, and a general secession of all these States? Is it the friendliness of the rebel communities toward the Government? Is it their love of the Union of the United States and the Constitution? Is it because they respect us? No, sir. If they had the power to-day, and were not resisted or

Mr. HOWARD. Mr. President, for four years the contest between these two parties was that of force. For seven years the contest between the colonies and the mother country was a contest of force. The Declaration of Independence was just as unconstitutional an act, when construed in the light of British law, as was any of the ordinances of secession; and still the law which finally gave sanction and enduring solemnity and importance and effect to that immortal Declaration was the law of force; and the civilized world has recognized the independence of the United States as a nation from and after the 4th of July, 1776, although the contest between the parties endured for seven years after that date. Had the same results accrued in the contest between the Uni-prevented by the bayonet, I tell you that before ted States and the seceded States, the Senator from Pennsylvania will not deny that the independence of each of those States would have been recognized as having taken effect from and after the date of the ordinances of secession. For four years these States, in one form or another, either separately or combined, prosecuted a war against the United States for the purpose of upholding their ordinances of

secession.

Now, I ask the Senator from Pennsylvania, in case they had been successful, would the ordinances of secession have been void? No, sir; they would have been valid, upheld and established by this highest law between contending communities, physical force. So far as communities are concerned, so far as nations are concerned which are at war with each other, the question whether the war is right or wrong is entirely immaterial; and in our case the only question of any importance is, what was the actual condition of the rebel States during the war? Why, sir, they were as independent of the Government of the United States as is the Government of Mexico. We reconquered them, to be sure; but the States which we brought back into the Union, if we did bring back any States as such, were by no means such States as existed before the war. They were different. They were entitled to no other appellation than that of conquered country.

forty-eight hours you would see combinations, conspiracies, legislative assemblies and conventions assembling together, and you would see these southern people again asserting the right of secession, again setting up for State independence, for independence as a southern confederacy, a new nation upon the face of the earth; and, in my opinion, that is to-day the great object they most cherish at their hearts.

Sir, they look upon themselves as a separate nation; their people cherish a love for a separate nationality; and the honorable Senator from Pennsylvania and the honorable Senator from Connecticut, if they have read as attentively as I have-and I have no doubt they have-ought to be just as well convinced that such would be the result as I am. Sir, it is the bayonet, to-day, that preserves the authority of the Government in the rebel States. Remove your military pressure, take away your Freedmen's Bureau, take away the small fragments of troops that now remain in the southern States and elect as President of the United States a man who does not believe in State coercion-elect another James Buchanan, and you will have, the moment he has entered upon his office, another general secession. Mr. President, for one, I desire to guard against such a contingency, I desire to take security from the conquered; I desire to impose on them some reasonable conditions that shall save me and

my posterity, my constituents and my countrymen forever against the recurrence of the evils through which we have just passed; and I say that this great duty, a duty almost too mighty and too weighty for the best wisdom of both Houses of Congress, still pertains to the councils whom the people have constituted in these Halls, not to the President.

Sir, in the month of February, 1865, while Hon. Mr. Collamer occupied the floor, he made use of language so forcible and so clear, upon the power of Congress over the rebel States, that I must again trespass upon the Senate by reading an extract. That gentleman had reflected long, carefully, and profoundly upon this whole subject. We all know the constitution of his mind, its remarkable strength and elasticity, the clearness of his conceptions, and the accuracy of his judg ment. He gives us this as the result of his reflections. He says:

"Sir, are there not two sides and two parties to this war? It is the strangest war men ever heard of if it has but one side to it. I take it there are two parties to this war: the several States who have made it on the one side, and the national Government against whom they made it on the other; and I suppose the two parties must participate in the restoration of peace and quietness, and their restoration to their former condition, or a condition where they can perform their functions within the Government, as integral parts of the Union. It is for Congress to say when that state of things exist. Congress is not bound to receive their members or to treat them as being regular, loyal, integral members of this Union because they have surceased fighting and surceased military operations, until we have seen a return to loyalty and an obedience to their allegiance and the performance of their fealty, the true restoration of themselves to their former condition of loyalty and obedience; and that must be for Congress to decide."

If this is true, what authority has the President of the United States to decide that momentous question as to the fitness of the population of a rebel State to be reconstructed into a State, and to be represented in Congress? Can he judge of the fitness of those constituencies? Where in the Constitution does he find a warrant for passing such a judgment? Again, Mr. Collamer says:

"Sir, when will, and when ought, Congress to admit these States as being in their normal condition? When they see that they furnish evidence of it."

That is all that Congress is seeking to do now, to obtain the evidence of their fitness for restoration.

"It is not enough that they stop their hostility and are repentant. They should present meet fruits for repentance. They should furnish to us by their actions some evidence that the condition of loyalty and obedience is their true condition again, and Congress must pass upon it; otherwise we have no securities. It is not enough that they lay down their arms. Our courts should be established, our taxes should be gathered, our duties should be collected in those States," &c.

Again:

"The great essential thing now to insist upon, in my judgment, is that Congress shall do nothing which can in any way create a doubt about our power over the subject."

Weighty words, indeed, sir—that Congress should do nothing, even at that time, when the war was raging, calculated to create any doubt about the power of Congress over this whole subject.

"Indeed, it is right to assert at the proper time that we have that power; and how and when and in what manner we shall execute that power is in the discretion of Congress. I do not mean to occupy very much time with that; but one thing I have to say: 1 believe that when reestablishing the condition of peace with that people, Congress.representing the United States, has power in ending this war as any other war, to get some security for the future. It would be a strange thing if it were not true that this nation, in ending a civil as well as a foreign war, could close it and make peace by securing, if not indemnity for the past, at least some security for future peace. I do not believe that Congress is stripped of that power in relation to this or any other war; and here I do not wish to be understood as undertaking to assert the existence of such a power without some warrant in the Constitution."

And then he proceeds very learnedly and conclusively to show whence he derives the power. Now, Mr. President, as I have stated before, the great issue is, shall Congress decide the question of the right of the rebel States to readmission into this Union as they once were, or shall we tamely permit the President of the United States, without law, without our

consent, to take in his own hands this vast mass of legislative power which must necessarily be employed in their full reconstruction? C'est le premier pas qui coute-it is the first step always, that cost, in error.

If we wink at this assumption on the part of the President, good and patriotic man though he be—and I am not disposed to question his patriotism-it will be but setting a precedent for the future, and it is impossible to foresee to what extravagant extent these executive pretensions may be carried. Sir, upon a question so momentous, involving the safety and prosperity for all time of the whole United States, is it not, I ask gentlemen, becoming at least that Congress should maintain a firm, manly, and resolute stand? Call us what you may, Radicals, Black Republicans, Revolutionists, or what not; on this subject we occupy the very breach itself; we occupy the passage-way; we stand as did the three hundred Spartans when their country was invaded by the countless hordes of Persia. For one I propose to occupy this position so long as life shall last, or so long at least as I have the honor of a seat on this floor; and if I shall perish in the feeble resistance which I may be able to make to these executive pretensions; if the Constitution is to be swept away by fervor or fury, and we stripped of the just powers which the people have intrusted to us, I hope that there will be at least one of this Spartan band to survive the destruction, and who may be able to erect, as did the commonwealth of Lacedemon upon the heights overlooking that famous pass where the three hundred fell, a monument to their courage and patriotism, inscribed with these words of eternal force and duration: "Go, traveler, tell to Lacedemon that we died here in obedience to her sacred laws." I ask for no prouder monu

ment.

And if there be any persons here or elsewhere who expect to drive me, as a humble member of this body, from the position I have taken; if there be a deluded class, either here or elsewhere, who expect to intimidate Congress, or who aim to intimidate Congress into a compliance with these executive edicts; if we are to have a coup d'état, as has been recommended to the President by more than one of the leading journals of the country published in his interest; if we are to have that policy carried out which has been more than once recommended by a newspaper in this city which is supposed to speak his sentiments and by his authority; if Congress is to be expelled by the point of the bayonet, and rebel Senators and rebel Representatives thrust into these Halls in despite of our votes, I have this to say, not boasting of peculiar personal courage, come on! I ask no favors! The first hand of violence that shall be laid upon a member of this body or the other body will be a signal for such an uprising of the loyal northern masses as shall teach him, whoever he may be, who puts himself at the head of the movement, that the people of the United States have not forgotten they are still a free people, and that they are represented, and intend forever to be represented, by a free American Congress. [Manifestations of applause in the galleries.]

Mr. COWAN. Mr. President, I think, in view of the danger which portends and which has been alluded to by the honorable Senator from Michigan, that this is a good time to be brave, and a good time to say stout things; and I am glad that he has availed himself of the opportunity. I am not so well pleased that he has claimed for himself the position of Leonidas and his Spartans in the pass of Thermopylæ, in his fight. There the three hundred stood against an invading horde of foreigners who sought their country. Where is the Senator standing now? Is he standing in the breach? Ay, sir, directly in the breach; but it is in that breach which the American people desire to heal. He stands in that chasm which they would bridge over. He stands in the mouth of that wound which they would close and cicatrize. That is his true position. He stands in the very breach which prevents the

Union, the Union for which this war of which he has spoken was undertaken, and for which it was carried through in the manner in which it was carried through.

The Senator alleged that the southern States during the war were out of the Union, and he appealed to me as to whether they were not out of the Union. Admitting for the nonce his postulate, I put the question, what was the war for? That he promised to answer, but that was what he did not answer. It is the answer to that question for which the American people look from that honorable Senator and those with whom he acts. What was the war for? If the ordinances of secession, if the rebellion, if the war, if anything which occurred during that time took the eleven States in question out of the Union, what was the war for? The Union man answers, it was for the purpose of supporting and sustaining and restoring the Union; if they were out, it was to bring them back; if they were not out, it was to keep them in. Has not that been the understanding of the American people, with the exception, perhaps, of a few extremists? Sir, that was the unanimous opinion of the Congress of the United States in July, 1861. That was the almost unanimous, if not the unanimous expression of the opinion of the loyal States as to the object and purpose of the war. Was it false? Did that resolution assert a falsehood, or was it a truth? Did it assert the true intention of the people, or was it a cover for a design which they chose to conceal, and which is only developed now in the face of the people?

I say to the honorable Senator from Michigan that the war was for the Union; it was to save the Union; it was to restore it and to compel the submission of those who desired to dismember the Union to the laws and the Constitution of the country. The honorable Senator is a member of the star-chamber committee of fifteen; he is a member of that committee which carries at its girdle the keys of the Union; he was appointed to inquire into the temper of the southern people; he was appointed to inquire whether the people of those States were fit to be restored to their rights under the Union; and now I say, as I said the other day, if what he says is true, he indorses the Chicago platform. He has established himself upon the platform that the war was a failure; and he flings out broadly, into the faces of American soldiers and American citizens, that instead of restoring to the Union and to the country and to their rights under the Union the people of the South, the war was a failure; and here, in the open face of day, in the presence of the people, he says the southern people are a conquered people, and that we hold them, to use his own language, by the point of the bayonet.

Mr. President, is that so? I do not undertake to take issue with the gentleman upon the fact as to whether the condition of that people be what he represents it to be or not. It is enough for me to know that that is the ground upon which he plants himself here; and I am exceedingly glad that he has so manfully avowed it. The rebellion, then, was successful in that: it took the rebel States out of the Union; it took their people out, as a matter of course, loyal and disloyal, false and true, faithful and unfaithful; and since they have been out, and since the reconquest has been made, if you please to call it so, or since the conclusion of the war, they have remained dehors the Union, and are held as a conquered people. If that is true, say so. We will meet you in the pass of Thermopyla or at Philippi, if you please.

Mr. HOWARD. We will meet you at both places.

Mr. COWAN. Very well; we will meet you in the physical and in the spiritual. I believe the meeting in one of those cases was physical and the other spiritual.

Now, sir, I might ask here, by what title, by what right, by what authority was the honorable Senator, or anybody else, clothed in this Government to make conquests of his fellowcitizens? Is it because he appeals to what he

calls the highest law, the law of force? Does he propose to place himself upon that? He asked me, with an air of great triumph, if I knew of any higher law between contending communities than that of force. Sir, I know of no more stupid, brutal law than that of force. I know that it has to be resorted to, and I know that it is resorted to in the absence of reason, because it has obtained the name of the ultima ratio regum; or, in other words, when kings have no reason, they resort to force. Now, I was about to say, in answer to the Senator's question, but was prevented, that when communities contend, they may submit their differences to a test such as this, and then the Constitution and the laws are the highest law, and force has no place.

Mr. HOWARD. Then the use of force is unconstitutional?

Mr. COWAN. Not at all. It was perfectly constitutional and perfectly right with a just purpose in view, but perfectly unconstitutional, perfectly wrong, and without a single apology, if the end and aim and object was that which is avowed by the Senator from Michigan to-day. If the object was to compel the southern people

Mr. HOWARD. Mr. President

Mr. COWAN. I beg the honorable Senator's pardon. I will give him a chance to say any thing he pleases at the proper time.

Mr. HOWARD. I hope the Senator will not misrepresent me, as he declines to yield the floor.

Mr. COWAN. If the purpose was to compel the southern people to fulfill their constitutional obligations, and to obey the laws of the Union, then we had a perfect right to do it. Our right was as perfect as that of the sheriff when he compels the felon to surrender to him, and based upon precisely the same ground. If, on the other hand, the war was for the purpose of conquering those people, holding them as our vassals, treating them as serfs and slaves, subject to the domination of one half of the Union, then, I say, it was an outrage upon all right, all authority, and had no warrant anywhere, either in the laws of God or the laws of man; and especially on the part of those who have descended from the signers of the Declaration of Independence, it would have been an atrocity. [Manifestations of applause in the galleries.

The PRESIDING OFFICER, (Mr. POMEROY in the chair.) Order must be observed in the galleries.

Mr. COWAN. How did we justify ourselves in the first Revolution? What did we say to the mother country then and there? That every community, that every people had the right to choose their own form of government. I have heard the Declaration of Independence quoted here a thousand times over to establish absurdities which it never was intended to establish; but here is a great historical fact that no man dare deny; and that is, that the American Revolution was based upon the right of a people to govern themselves, and that nobody else had a right derived from heaven. If they had the right, whence did they derive it? From the gentleman's higher law of force? And then talk about standing in the pass of Thermopylae, and talk about building monuments there!

"They fell devoted, but undying;

The very gale their names seemed sighing:
The waters murmured of their name;
The woods were peopled with their fame;
The silent pillar, lone and grey,

Claimed kindred with their sacred clay." Why, sir, it is to desecrate that which has been sacred for three thousand years to allude to Thermopylae in such a connection. What was the struggle of Leonidas? That Greece should govern Persia? No; it was to throw back the tide of the Persians, who insisted, according to this higher law of force, that the king of kings, Xerxes, had a right to govern Greece, had a right to hold its people as a conquered people and its provinces as conquered provinces.

Mr. President, let us look at this question

coolly. I ask again, by what warrant did we make this war? Was it because, as the question was put to me the other day, there is such a thing as political dominancy, political sovereignty, by which one people have a right to dominate another people? Who will dare to avow it this floor? Our warrant was the upon Constitution and the laws. We said to the southern people: you bound yourselves, States and people, with us in that Constitution; you assisted in making those laws; and now you refuse to fulfill your obligations; now you undertake to secede and withdraw yourselves from the operations of the very law that you assisted to make under that Constitution; you provided that the Executive of the nation should swear to support the Constitution; you provided that he should see that the laws were faithfully executed; you provided that those laws should be paramount, that they should be higher than all other laws within their particular constitutional circle; you did all that, and we claim the right to compel you to stand upon them. Sir, we did. We compelled the recusants, we compelled the rebels, we compelled the traitors, if you please, to lay down their arms and yield obedience-to the Senator from Michigan or anybody? Not at all, sir. It was not by any especial virtue of his or mine; it was not on account of any superiority that we might assume over the southern people that we claimed the right to compel their surrender. We did it in the name of the Constitution and standing under the shadow of the majesty of the law. They surrendered to the law. Mr. HOWARD. They surrendered to our

arms.

Mr. COWAN. They surrendered to the law. Your arms compelled them to surrender to the law, but they surrendered to the law. The honorable Senator is a lawyer, and a good one, I should say, in many of the departments of that profession; and impressed as he is, impregnated as he is all through with the very spirit of the law, the moment that surrender was made the honorable Senator would not have dared to lift his hand to the worst rebel of them all. He would not have been guilty of the impropriety of which the Senator from Nevada [Mr. NYE] was the other day, when he said that he would have hanged Jeff. Davis without law. The honorable Senator knows that the man who would do so, the man who would violate the sanctity of the law and take a criminal out of the grasp of the law and execute his individual vengeance upon him, would be a murderer in fact and a murderer in law. The law is supreme over the American people, and it is to the law that we bow. We owe no allegiance to Presidents or to Congresses or to anybody else as the sovereigns in this country, and thank God for it! I hope the day may never come when we, as citizens of this great and free Republic, shall be held to obedience to anything but the law. Do you want to be slaves? Do you want to wear the collar and the harness of a man superior over you? If you do you are unworthy sons of revolutionary sires. I yield me to the law, but I yield to no man and no body of men and without desiring to boast at all, I will make my boast there; I will never submit to wearing the collar or the harness of any man. I am willing to pay my obeisance humbly to the law. I am willing to yield to its requirements, even when I believe it to be unconstitutional; but I will obey the law and never obey the behests of any single man or body of men unless they are enforced upon me and I cannot resist it.

The honorable Senator set out by trying to show that Mr. Lincoln's plan of reconstruction was not President Johnson's plan of reconstruction. That was his object. He proposed to set that question entirely at rest, and I can state to you in a very few words how nearly he came to it. President Johnson, in his last annual message, declared that it was for each House of Congress to determine for itself upon

the admission of members of Congress from the rebellious States. That was his phrase; and that was all. Nobody pretends that President Johnson ever undertook to say that we should admit this man or that man or the other man, or that we should reject this one or the other one. Even the honorable Senator himself did not pretend it. What did he say? He gave a legal opinion in that respect. Was it a good opinion or was it a bad one? What does the Constitution provide in that case? Does the Constitution provide that this Senate shall determine who shall be members of the Senate and who shall not, or does it confer that power jointly upon the Senate and the House? It is very expressive on that subject. It is about as clear as it can be made. The Constitution confers the power upon each House separately. Then the Senator read Mr. Lincoln's opinion on that point, and Mr. Lincoln's phrase was the "respective Houses." What does that mean? Does that mean the Houses jointly or the Houses separately. I should not think it would require a very close or accurate criticism to determine that. There is the whole of it.

Now, Mr. President a very brief statement will set all this matter right. The States are corporations; they are legal persons, having no actual physical existence, but existing in contemplation of law for the purpose of carrying out the purposes of the trust, and the citizens of the several States are corporators; and in one of its aspects, and in this aspect, a State may be contemplated precisely as you contemplate a bank or a railroad or any other corporation. The officers of these corporations, the officers of rebel States, and a certain number of the corporators, if you please-I am not here disposed to quarrel as to the number or to dispute as to the number; that can be talked of hereafter-undertook to pervert the purpose of the corporation, undertook to carry the corporation bodily away from the original intent and purpose to which it was bound by the Constitution and the laws. What was the duty of the United States under these circumstances? Was it not their bounden duty to see that the citizens, the corporators, even if there were not more than a dozen of them faithful, should not be deprived of their franchise, and that this corporation should not be carried away without their will and consent? I say that if there was one man from the rebel States who came up and protested against this perversion of the State corporate authorities and being carried away by secession, the United States Government would have been bound to listen to him and to rescue him and restore him to his rights as guarantied under the Constitution and the laws. Well, sir, that was the view the United States took of it. They took precisely the same view of it that a court of chancery takes of trusts. They were the custodian of the rights of the people, the general custodian; and they interfered that the trusts might be preserved; that the corporation might not be perverted from its original uses? What then? War resulted and the war was successful; resistance ceased. When that happened, there were two ways by which those corporations could be restored. Who could restore them? Gentlemen talk here about Congress restoring them; they talk about the President restoring them; they talk about anybody restoring them. I can say to gentlemen that in this country States are not made by Presidents, States are not made by Congress; State governments are not made by them. Neither the President nor Congress nor anybody else when this war was put down had a right to interfere in the restoration of the corporate rights of the citizens of the southern States. The question was to be referred to them. There were two ways of doing it. One was to allow the corporate officers to continue upon their profession of repentance and coming back within the purview of the original great charter.

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ance and acknowledged the Government of the Union and their obligations to the Constitution and laws just as before, what would you have done with them? You could do one of two things. You could say, "Very well, that is all right; you may go on just as you are, provided you obey the Constitution and the laws, subject, however, to our right to hang you; we have the right to hang you if we choose to enforce it, but that is a question we will not decide now; in the mean time we will hold it in abeyance over your head, and you can go on and play Governor and Legislature." That was one way, and the President had a perfect right to do that. Nobody could quarrel with him if he had chosen to take that course.

What

On the other hand, the President had the perfect right to say to these men, "You have been engaged in rebellion; you have been in complicity with treason and unfaithful to the trust committed to you by your people; you are set aside, your office is vacated." then? What would a court say in such a case, and I address some who have been judges? The court then appoint somebody to support the trust until the corporators meet together and elect for themselves.

Mr. HOWE. Let me ask the Senator where the President gets the authority to set aside the Governors and Legislatures of States.

Mr. COWAN. I should think that a man who had the power to do a thing indirectly would have power to do it directly.

Mr. HOWE. I ask the question where the President gets that power.

it.

Mr. COWAN. I will tell you where he gets He gets it as the supreme Executive of the nation. He gets it by virtue of the warrant which the American people gave him to go down there and to suppress the rebellion, and to take all that he found in armed resistance to it. Had he not that power?

Mr. HOWE. He had the power to suppress the armed forces engaged in the rebellion; but where did he get the power to depose the Governor and the Legislature of a State; and judges, and municipal officers?

Mr. COWAN. Precisely from the same source that the constable gets it, precisely from the same source that the sheriff gets it, or the marshal gets it. He gets it under and by virtue of the law. He had the right to drive these people from their places by virtue of that authority. Mr. HOWE. Then a sheriff, I understand, would have the same right as the President.

Mr. COWAN. Instead of saying to the man, "You must go out of your office," the sheriff could do it by arresting him, and why? Because if the sheriff, who has limited power, allowed the man to go out from his control, he would not be very likely to take him easily again; but the President had all these people in his net, and they could not very readily get out of it.

Mr. HOWE. Well

Mr. COWAN. I decline to yield further; I do not want any more interpolations. Í think everybody will understand me when I get through, and if not, I do not know that I can make myself any plainer.

There is the source of the authority. I do not say that was a better plan than the other plan. I have no quarrel about that. It was within the option of the President to take either of these plans. He had a right to arrest these people; he had a right to allow them to go at large on their parole, or, in other words, he had a right to admit them to bail, if you please, in that behalf; and he had a right to establish officers there to support the trust until the corporators, the citizens of the States, could come back and resume their functions and elect new officers true and faithful to their trust.

Mr. Johnson chose the latter of these courses. Where was the necessity for quarreling with it? Where did the quarrel come from? The Suppose, if you please, that Governor Brown, southern people did not complain of it. Noof Georgia, and the Legislature of Georgia, body ever heard Governor Letcher, of Virwho had been in rebellion, professed repent-ginia, or Governor Brown, of Georgia, or any

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