A preceding chapter has noticed the result of the Presidential election of 1864. It was thought proper, however, to reserve for separate treatment the various questions presented by the participation in that contest of Louisiana and Tennessee, two States reorganized under Executive auspices. On the introduction by Mr. Wilson of a joint resolution declaring certain named States not entitled to representation in the Electoral College, the entire subject came before the House soon after the meeting of Congress in December.

The proposed resolution was read twice and referred to the Committee on the Judiciary. On the following day, December 20, 1864, it was reported, ordered to be printed and recommitted. Under the operation of the previous question it passed the House on January 30 succeeding. Its preamble, which was favorably considered at the same time, declared that “the inhabitants and local authorities of the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas, and Tennessee rebelled against the Government of the United States, and have continued in a state of armed rebellion for more than three years, and were in a state of armed rebellion on the 8th of November, 1864.”

The joint resolution provided that these States were not entitled to representation in the Electoral College for the choice of President and Vice-President for the term of office beginning March 4, 1865, and that no electoral votes from them, relative to the choice of said officers for that term, should be received or counted.^[366]

In a modified form the measure subsequently passed the Senate, which proposed that there be stricken from the preamble the words “and were in such condition of armed rebellion for more than three years,” and that there be inserted in lieu thereof, “and were in such condition on the 8th day of November, 1864, that no valid election for electors of President and Vice-President, according to the Constitution and laws thereof, was held therein on said day.” In this amendment the House promptly concurred, February 6, 1865.

In the Senate, February 1, Mr. Trumbull asked consideration of the measure inasmuch as the electoral votes were to be counted a week later. When the amendment was under discussion, Senator Ten Eyck, of New Jersey, moved to strike out the word “Louisiana” in the preamble, and added that it was a matter of history that the State had reorganized, or at least attempted to do so, and in the opinion of many, and perhaps most, of her loyal citizens had reorganized as a State. It was matter of history that they had elected State officers and a State Legislature; that they had elected members to a constitutional convention and framed a new constitution for that State; that the Legislature passed a law authorizing the choice of electors for President and Vice-President of the United States in the last Presidential election, and that such electors had met and cast their votes. “Under these circumstances,” said Mr. Ten Eyck, “I think there is a striking distinction between the State of Virginia and the State of Louisiana.” The object of his amendment, he stated, was to afford opportunity to a loyal people who had suffered all the horrors of the rebellion, who had got the better of it, and put it under foot, of coming back and resuming their place in the councils of the nation. He did not then desire to make any further remarks.^[367]

Senator Trumbull then took up the discussion of Ten Eyck’s amendment to the amendment. The electoral votes, he said, were to be opened and canvassed a week later, and it was known to all that no rules for action had ever been adopted in that joint convention. He recalled the fact that in 1856 there arose a question over the counting of the electoral vote of Wisconsin. A severe snow storm had prevented the electors from meeting at their State capital on the day fixed by law, and it was not until the day following that they were able to cast their votes for President and Vice-President. The question was not then decided, for Buchanan and Breckenridge were the successful candidates in either event, and were so declared.

He believed a similar question was likely to arise when the electoral votes would be counted on February 8. It was a matter of public notoriety, he continued, that several of the States included in the President’s proclamation of 1861, Arkansas, Tennessee and Louisiana, had cast electoral votes. There was a question as to their authority to do so in consequence of the insurrection which prevailed there on the 8th of November, when the election took place, and the House of Representatives had passed the joint resolution declaring that the votes of certain named States should not be counted. The motion of the Senator from New Jersey would have the effect of counting the vote of Louisiana. “If we decide to receive the vote from Louisiana,” declared Mr. Trumbull, “it will be a decision by the Congress of the United States that the State of Louisiana was in such a condition as to vote for President and Vice-President on the 8th of November last.”

The alteration proposed by the Committee on the Judiciary, said he, was for the purpose of avoiding any such committal on the subject as the motion of the Senator from New Jersey brought up. If the preamble “is adopted and the resolution passed, Congress will not have decided whether Louisiana is in the Union or out of the Union, whether she is a State or not a State.” It would be time enough, he believed, to decide that question when it was presented to the Senate. No statement of facts, he asserted in reply to Senator Howe, accompanied the joint resolution from the Committee on the Judiciary; it was a House resolution, and no report accompanied it from the House Committee.

A large part of Louisiana, he added, was on the 8th of November preceding in the possession of a hostile force. In a very considerable portion of the State there was no opportunity to vote for President or Vice-President, and it might be a very serious question whether, when half a State or the third of a State was overrun by an enemy, an election held under such circumstances and under the auspices of Federal guns would be an election which would authorize the Congress of the United States, when in joint convention it came to canvass the votes for President and Vice-President, to count ballots cast under such circumstances.

In acting upon the resolution he did not mean to commit the Senate one way or another relative to the organization which had been formed in Louisiana. A decision to strike out Louisiana would be to decide that her electoral vote would be received and that on November 8th there was a State government there. That he did not believe. No evidence, he asserted, had been submitted to show how many votes were cast.

Pursuant to an act of Congress the President had declared the inhabitants of Louisiana in insurrection against the United States. That proclamation had not been recalled. “Sir,” concluded Mr. Trumbull, “until there shall be some action by Congress recognizing the organization which has been set up in Louisiana, we ought not in my judgment to count electoral votes from the State.” Whether Congress would recognize it, he could not say; that had not yet been done, and, until it had been, the electoral vote ought not to be counted. He hoped, therefore, that Ten Eyck’s amendment would not prevail.^[368]

Mr. Ten Eyck said it was with great diffidence that he undertook to propose an amendment to the resolution; but he held the doctrine that these commonwealths having taken up their lot and part with their sister States when admitted into the Union were not legally out of it; their governments had been in abeyance; they had been overrun by the feet of hostile armies, and many of their citizens, by usurpation and in violation of their duty to their fellow-men and to their God, had attempted to carry these States out of the Union.

That being his opinion, whenever these States, by the aid of the General Government, or by the efforts of their own people, or by the act of both combined, reËstablished themselves, or set their State governments in action anew, and had commenced again to revolve in their old orbits, he should feel it his duty, so far as he was concerned, to extend to them all the privileges and all the rights to which the loyal people of a loyal State were entitled at the hands of their sister States, whether upon the floor of the Senate or anywhere else. It was to exclude Louisiana from the operation of the resolution that he made his motion. As to those States manifestly in the condition described in the preamble there was propriety in passing the resolution.

In reply to an observation of the chairman of the Judiciary Committee, that the majority desired to avoid a committal on this subject, Mr. Ten Eyck suggested that it would not, perhaps, be amiss to insist that a committal should not be had against the interest of the State any more than in its favor, and if his amendment involved the question whether Louisiana was in a condition to perform all the functions of a State government and to appoint State officers and Senators and members of the national House of Representatives, the same question was involved in the resolution and it would be determined against her if the joint resolution passed as it stood; for that would decide that Louisiana was in a state of rebellion such as to deprive her of all the powers, rights and privileges of a member of the Union. He was not prepared to go to that extent.

From various memorials, papers and documents that had come into possession of the Senate, he continued, and were published by its order, as well as from information derived from other sources, it appeared that nearly, if not quite, a year before an election for State officers was held in Louisiana and a very large number of votes cast, about two thirds or approximating two thirds of the largest number that had been cast at any former election for State officers. Trumbull interrupted to remark that no such statements had been received by the committee. In those localities which voted, perhaps two thirds of the former vote had been cast, but not two thirds of that cast in the entire State. Ten Eyck replied that the vote was 11,414; it was alleged that a large number of former voters had entered the rebel army and a great many had been killed. He might be in error concerning the whole vote of the State. All these elections were free and uninterrupted and without the interference of any military power whatever. A person on the ground had declared that “no effort whatever was made on the part of the military authorities to influence the citizens of the State, either in the selection of candidates or in the election of officers, and that the direct influence of the Government of the United States was less in Louisiana than in the elections probably of any State of the Union; that the officers representing the Government, both civil and military, were divided, so far as they entertained or expressed opinions, on the question of candidates and upon the policy pursued in the organization of the government.” If any military interference was exerted it was in aid of the loyal people, and the civil authority was not at all in subordination to the military.

In view of the invitation that had been held out by the Government to all the loyal people of those States to come back and to endeavor to organize themselves anew and, when they had gained sufficient strength, to present themselves civilly and quietly at the ballot-box to choose their own State officers and to choose delegates to form a new State constitution, and when they claim the rights of other States, are they to be met by the plea that upon certain out-bounds of the State there may still be heard the tread of rebel feet? It appeared by all the testimony that the population, the business and the property of Louisiana were confined to the cities and regions of country immediately bordering upon the river, and that the residue of the State was very sparsely settled indeed. That portion not submerged was used for planting purposes. The wealth and population of the State were confined within a small space and this contracted area was chiefly under control of the United States. The Presidential electors were chosen by the State Legislature, and he did not think that method legal. That is why the vote cast in the election did not appear in the testimony submitted to the Committee on the Judiciary.

As to the withdrawal by the President of his proclamation declaring the inhabitants of Louisiana in a state of insurrection, if that were the test either the present incumbent or his successor could keep the loyal people of those States from returning to the Union during the remainder of his administration, and, if reËlected, for the following term. This even if every soul within the State were loyal and anxious to return.^[369]

Mr. Howe announced his intention of voting for the amendment of Ten Eyck, though for reasons very different from those which influenced the New Jersey Senator. His support would not be controlled by the number of citizens who participated in the choice of electors. “I am governed,” said he, “by the single fact that a statute of your own, existing at the time of that election, declared that the people of that State had the right to choose electors, and that certain of them did participate in making that choice. The Senator from Illinois [Trumbull] says but a small portion of the people of the State participated in that choice. Your statute said that all might. Does the refusal of a large portion or a small portion of the people of a State to participate in an election deprive the minority, if you please, no matter how small, of their right under your statute?” Besides Louisiana he understood that two other States had made choice of electors. He would vote for an amendment to strike them out of the resolution also.^[370]

Trumbull argued that a mere refusal to count the electoral vote of Louisiana did not settle the question against the existing organization. Wisconsin had a right to vote in 1856, and nobody supposed otherwise; but many opposed the counting of that vote. The State organization may be perfect and yet its electoral vote rejected. If the Senate had refused to count Wisconsin’s vote, it would not therefore have decided that there was no such State. Ten Eyck promptly indicated the weakness of this reasoning by pointing out that the preamble of the pending resolution declared Louisiana in such a condition of rebellion that no election could be had. Senator Trumbull then put the case of a foreign enemy having such possession of Louisiana that no election could be held throughout the State, and asked whether the Senator from New Jersey would count the electoral vote of Louisiana when not twenty men could have assembled in the State and voted for President and Vice-President. If the Senate refused to count her vote under such circumstances, would it decide that the organization of the State of Louisiana was not to be recognized, and was repudiated? Whether the organization established in Louisiana was a valid one was a question which would come before the Senate when they inquired into the right to seats of those gentlemen who had presented themselves as Senators.

Replying to an assertion of Senator Howe, who was not in his seat, Mr. Trumbull said he would like to see the statute which gave Louisiana a right to vote in the Presidential election of 1864. If any such existed it would be repealed by the act of Congress which empowered the President to declare the people of certain commonwealths in a state of insurrection.

In referring to the objection of Mr. Ten Eyck that the President, if he desired, could keep a State out during his entire administration, Senator Trumbull observed that it was only necessary for Congress to repeal the act upon which the proclamation was based and then the proclamation itself would fall.

The refusal of a State to vote when she had an opportunity to do so, said Mr. Trumbull, would be no reason for excluding her electoral vote; but the people of Louisiana did not have an opportunity unawed by hostile armies and unrestrained by military authority to vote for President and Vice-President. This, he said, was not the real point at issue; the question for the Senate to consider and determine was whether the Legislature of Louisiana was a lawful assembly, for it was by that body that electors of President and Vice-President were chosen in the election of 1864.

Mr. Trumbull believed that on November 8 about three fourths of the area of Louisiana was in possession of the Confederates. No person could have voted within that jurisdiction. Eleven or twelve thousand was the largest vote ever cast under these organizations; while the vote of the State, when all her legal voters had the privilege of going to the polls, was more than 60,000.

Mr. Ten Eyck stated that 51,000 was the highest vote ever cast, and that the average was but 34,000. Trumbull believed the Senate should concur in the House resolution and that it need not commit itself one way or the other on the Louisiana organization. The counting of the electoral vote, which pressed for settlement, should soon be determined.^[371]

Mr. Harris thought the question of counting the votes could be disposed of without committing the Senate or deciding the matter of admitting Senators, as was done in the case of Wisconsin in 1856. “If we count the votes of these States,” said he, “the number of votes for Mr. Lincoln and Mr. Johnson will be so many; if we reject these votes the number of votes will be so many; and in either case these candidates are elected.” By this or a similar declaration, the phraseology of which was suggested by the precedent of 1856, the question could be passed over. He asked the chairman of the Committee on the Judiciary why Congress had not the power to declare that New York should not vote. He opposed the preamble because he did not believe it true, and he denied that the local authorities in Louisiana, Arkansas and Tennessee were in rebellion on the 8th of November preceding.

When, on February 2, Senator Harris resumed his remarks he observed that the question as to the power of Congress to legislate in relation to the counting of votes for President and Vice-President was not considered by the committee. Reflection had led him to doubt the competence of Congress to legislate on the subject. That body could fix the time for choosing electors and specify the time when they should perform the functions of their office. That, he contended, was the extent of the power of Congress over the subject. He could find no authority in the Constitution, however, which empowered Congress to pass a law, for the resolution amounted to that, excluding any votes returned to the Vice-President. Even if Congress had the authority it was inexpedient to exercise it. Why should such extreme power be exercised when the necessity did not exist? The result, it was conceded, would be the same whether Congress counted the votes of Louisiana, Tennessee and Arkansas or not. The power was not contained in the Constitution. Those States specified in the preamble did certainly rebel, but that Louisiana, Arkansas and Tennessee were in that condition on November 8 was at least open to question.^[372]

Senator Doolittle believed that Congress by legislation could provide in advance for the manner of counting electoral votes; but that, he insisted, was very different from passing a law which declared certain votes null and void after they had been cast. That would be retroactive legislation. He doubted the power of Congress over the subject of counting the electoral votes, beyond that contained in the Constitution.

“The Congress,” he continued, quoting the fourth clause of section one of the second article, “may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.” Pursuant to this provision Congress passed the act of January 23, 1845. It was not for the president of the Senate to open such as Congress told him to open, but he should “open all the certificates” which were sent to him, “and the votes shall then be counted.” Here, said the Senator, arose the grave question whether the president of the joint convention was made the sole judge as to what votes should be counted. The question practically came up in 1856, but it was not then necessary to decide it, and it was waived as not being essential to the result. On the present occasion, 1865, it was the same, the result of the election would not be affected by the matter of counting or not counting the votes of Tennessee and Louisiana; but it was not necessary for Congress to assert a doctrine which in some future time might be the very destruction of the Government, namely, “That a political party in Congress can decide that certain votes of certain States shall be canceled and others shall be received. It will never do to set that precedent.” It would be time enough, he said in conclusion, to meet the question when it came up in the joint convention.^[373]

Mr. Hale said that he had foreseen the difficulty and at the preceding session had introduced a joint resolution directing in advance what should be done; but the pressure of other business, certainly not more important, prevented action thereon. If the result of the Presidential election had depended upon the votes of Louisiana, Tennessee and Arkansas would the party have submitted against which their votes had been cast? The rebellion then existing was caused, he believed, by nothing at all in comparison with such a question.

He denied the assertion of Senator Doolittle that Congress had no power over the counting of the electoral votes. Suppose, he argued, that, contrary to the constitutional provision, a member of Congress or any officer of the Federal Government holding an office of profit or trust happened to be an elector, would not Congress have power to say that such vote of Federal officer should not be counted?

The framers of the Constitution, he declared, made the most ample provision for just such a case. That instrument confers on Congress the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States.” Was not the power to choose a President one vested in the Government of the United States?

Mr. Hale contended that then, when action by Congress would not affect the result of the election, was the time to settle the principle, and the precedent could be pointed to showing the action and sentiment of Congress at a time when there was no inducement to anything but an honest and straightforward decision of the case.

Suppose, he went on, that Nevada while in the territorial condition had grown restless under her provincial state and had sent certificates signed by her electors, would Congress have no authority to say whether they should be counted? In Washington’s first election the vote of New York State was not counted. Now her Senator, Mr. Harris, doubted the competence of Congress either to exclude, or refuse to count, the votes of a State.^[374]

Mr. Doolittle objected to being quoted quite so strongly as to say that Congress had no power over this subject. Congress had power over the subject, but that power was limited. When the Constitution says that the States shall do certain things, such as directing the appointment of electors, that is a limitation on the power of Congress over the matter. What he maintained was that after the ballots had been cast there was no power in Congress as a legislative body to declare certain votes valid or invalid. The tribunal to which the question was referred was the president of the Senate presiding over the joint convention of both Houses. The power in the first instance was with that officer to count or not to count the votes. He was to decide whether they were from States or from Territories.^[375]

Senator Trumbull maintained that so far from being empowered to decide disputes, the president of the joint convention was not authorized to even count the votes. In the practice of the Government the Vice-President had never since the days of Washington counted the votes. The Constitution says that he shall “open all the certificates and the votes shall then be counted.” It does not state by whom, but it does state that Congress has power to pass all laws necessary to carry the instrument into effect. Congress, he said, had exercised such power from the beginning.

There was no legal difference, he asserted, between South Carolina and Louisiana. An individual trading in the latter State, except under a particular license, could be taken up and tried as a felon, and yet “we are told that we cannot determine by act of Congress that they cannot elect a President for us!”

Mr. Trumbull contended that if a question arose upon the counting of the vote of any State, the joint convention could not decide upon it. The bodies would have to separate and, by passing a concurrent resolution, each act independently. There was no popular election, he said, in the State of Louisiana, but a body assuming to be its Legislature had appointed electors of President and Vice-President. He did not know whether the new constitution of Louisiana authorized that method.

The purpose of the Senate, he continued, in amending the joint resolution of the House was to avoid declaring that the people of Louisiana were on the 8th of November in a state of armed insurrection. The preamble, even as it was amended, did not wholly satisfy him; he believed that he would be better pleased if it was altogether omitted. He was informed that Tennessee had sent a vote as well as Louisiana. The object of the committee was to settle the question before the meeting of the joint convention.^[376]

Senator Collamer thought that any law honestly intended to carry into effect the provisions of the Constitution could not be objected to. It could if it opposed or was inconsistent with that instrument. There had been legislation on the subject and additional action by Congress might be necessary. For the resolution he offered the following substitute:

That the people of no State, the inhabitants whereof have been declared in a state of insurrection by virtue of the fifth section of the act entitled “An act further to provide for the collection of duties on imports, and for other purposes,” approved July 13, 1861, shall be regarded as empowered to elect electors of President and Vice-President of the United States until said condition of insurrection shall cease and be so declared by virtue of a law of the United States.^[377]

By Mr. Howard the question was regarded as of very great importance not only as a precedent for the future, but “as indicating the opinion of Congress on the subject, to use a familiar term, of ‘reconstruction,’ or rather the rights of the States in rebellion.” He believed it clear that the Vice-President was to open the certificates and that the duty of counting devolved upon the two Houses thus assembled. The act of 1792 seemed so to construe the Constitution.

“The power of counting the votes,” he asserted, “and of rejecting votes which are void for fraud or illegality, is, under the Constitution, in the joint convention thus assembled.” There was no doubt about it, he declared, because the Houses convened for a great and protective purpose; they were exercising the tutelary authority of the people, in protecting the nation from the imposition of false and fraudulent ballots and certificates. The inhabitants of the States mentioned in the proclamation of the President were public enemies; therefore they had no political rights under the United States.

“I look upon this measure as necessary,” continued Mr. Howard, “as one form in which the sense of Congress ought to be expressed against any hasty attempt to readmit these rebellious States into the Union.” For one, he would require the loyalty and friendliness of a majority of the people of the rebellious States to be proved before readmitting any of them. “The theory of our Government,” he went on, “is different from that of almost every other government on earth. It is that the will of the majority shall govern; in common phrase, the majority of the people, but practically the majority of the voting population.”

In conclusion he declared that it was “the bounden duty of Congress, in every case, to keep out of the Union every one of these eleven seceded States until, in pursuance of our laws, passed or to be passed, it has become perfectly evident to us that there is in such a State a clear, absolute majority of its voting population friendly to the Government of the United States, and willing to proceed in the discharge of their functions as a State; and, until that is done, you may be perfectly sure, so long as I hold a seat in this body, my vote will be given against any such proposal. I never will consent to admit into this Union a State a majority of whose people are hostile and unfriendly to the Government of my country. I prefer to hold them in tutelage (for that is really the word) one year, five years, ten years, even twenty years, rather than run the risk of a repetition of this rebellion, which has cost us so much blood and treasure.”^[378]

Ten Eyck, considering Louisiana as the strongest case, mentioned it in preference to Arkansas or Tennessee, and, from a paper furnished by a gentleman who was familiar with the situation there, was able to state that “eleven thousand four hundred and fourteen votes were polled at this election. The average vote for ten years prior to the rebellion in these parishes was fifteen to sixteen thousand.” The same parishes cast their highest vote, 21,000, in 1860. He expressed a wish to save Tennessee also from the effect of the resolution, and declared that he did not see how the Vice-President-elect, an alien, could preside over the Senate. Further, a vote in favor of the resolution prejudged the case of the Senators and the legality of the Legislature which sent them.^[379]

Senator Pomeroy did not suppose that States unrepresented in either House could be represented in the Electoral College. He criticised the correctness of the preamble so far as it related to Arkansas. The rebel governor as well as the rebel legislature, he said, was driven out long ago.

“Arkansas,” he continued, “has not voted at all in the Presidential election.... Under the instructions and impressions that the members from Arkansas received here last session, they distinctly understood that States not represented in either branch of Congress would have no right to vote at the Presidential election. They returned to Arkansas and so reported, and they never had any election; there are no votes here from that State. They have been in suspense awaiting the action of Congress.” The resolution itself did not, of course, affect Arkansas, for there were no votes from that State to be counted.^[380]

Mr. Cowan, probably adopting a hint dropped by Senator Ten Eyck, noticed the fact that the proclamation of January 1, 1863, exempted from its operations thirteen named parishes of Louisiana because no rebellion existed in them. The validity of that decree had been recognized, while the proclamation of December 8 following invited the people of Louisiana and other States to resume their rights. The question was whether the arrangements of the President were to be executed in good faith.

It was the duty of the Executive, he continued, “to put down this rebellion, to relieve the people from its oppression, and to restore them precisely to where they were when the rebellion found them. If that is done, in ten days after his proclamation, eo instanti, the people resume their rights and functions; and in this case I understand they are not only in possession of the right, but are actually in the enjoyment of it, having a regularly organized government with all the machinery necessary and proper to a government.” He believed that men and money were furnished the President to sustain State governments and make them supreme within their own limits.

Concluding this portion of his remarks he said: “Mr. President, this involves a direct conflict between the Legislative and Executive bodies of this Government, and at this time I am of opinion that we cannot afford to enter into that conflict.”^[381]

Senator Powell, of Kentucky, said that when it was asserted that General Banks did not interfere in the Louisiana election the statement was not true, for there could be no greater interference in the elections of a State than to alter the qualifications of voters. He declared himself “opposed to admitting on this floor persons who are elected under the bayonet influence in any way whatever. I very well know that there was no free expression of the people of Louisiana in these elections. I know that they but obeyed the behests of the military, whatever commanders may say about it.... But for its tragical results upon republican liberty it [the election] would be the greatest of farces.”

The Kentucky member believed that the rebellious States were still in the Union, and when a majority of the people in any of them returned to loyalty, when their governments were organized, their Senators and Representatives should be received.^[382]

Cowan, entering again into the discussion, said: “We are bound by the Constitution to preserve the Union and to preserve the rights of the people under the Union; not merely the rights of a majority, but the rights of the people, of all the people, and of any number of the people however small. What are we to do? A minority of the people come forward and say, ‘If you aid us for a while we can preserve this State and keep her in the Union.’ ‘But no,’ according to the doctrine advanced here, ‘there must be a majority of you before we can recognize you as in the Union.’... That will be very poor encouragement for the loyal men of the rebel States to try and bring back their people to reason.” The Pennsylvania Senator was one of the few who adhered to the opinion that the masses of men at the South were not disloyal; that it was a leaders’ rebellion.^[383]

Sherman, of Ohio, described the scene in the joint convention of 1856 when Humphrey Marshall wanted to speak and Mr. Mason, president of the Senate, refused to recognize him. Speaker Banks, however, did recognize him; upon this, Mason and others left the convention, and confusion ensued; that, Mr. Sherman believed, was a reason why the resolution should be disposed of.^[384]

Mr. Wade said: “About a year ago Congress, anticipating that such questions as this might arise, in my judgment very wisely framed a law and passed it through both branches with the hope of settling this matter in advance. That law was made upon great deliberation in both bodies of Congress: it received a very large vote in each House. It was very proper in my judgment that Congress should fix the matter then, because everybody could anticipate that a question of the most serious danger to the Republic might arise in the then approaching Presidential election, which might endanger the stability of our Union, and which might under certain circumstances precipitate these Northern States into a civil war. Apprehending that such a question might arise, Congress wisely, in my judgment, provided against it; but the President did not agree with them, and he vetoed their bill, leaving the question open with all its dangers, which, thank God, have not arisen.”

The President, added Mr. Wade, chose to pocket the bill, “and, as I suppose, he did it in defence of the proclamation which he had put forth, declaring that whenever a tenth part of the people of a State would come back, he would recognize them as the State and as part and parcel of this Government—a proposition which, with all my respect for the Chief Magistrate, I am bound to say is the most absurd and impracticable that ever haunted the imagination of a statesman.... And I must say of that proclamation of the President that it was the most contentious, the most anarchical, the most dangerous proposition that was ever put forth for the government of a free people.

“... I had a conversation with the now Vice-President-elect of the United States on that subject, and with other gentlemen on the Union side in the Southern States, and I do not know of one of them who was not filled with the deepest apprehension that if this principle should prevail they would be annihilated by the nine tenths.”^[385]

As to permitting citizens of Louisiana who were serving in the army and navy to vote in the election of February 22, 1864, Mr. Doolittle observed: “We have done the same thing in Wisconsin, in Ohio, in Pennsylvania, in New York, all growing out of exigencies which have occurred since this rebellion began, passing laws, authorizing men, although in the Army of the United States, still to take part in the elections, providing that they should not be deprived of their rights of citizenship because they had enlisted in the Army to bear all the sacrifices which are necessary to defend their country in this struggle. And, sir, I maintain that there was nothing wrong in this.”^[386] Even if it were wrong, only 808 soldiers, he asserted, participated in the election. A separate registry of this vote had been kept by General Banks. So far, therefore, from being a military usurpation it was an attempt of the President to lay down the military power. This he was endeavoring in good faith to do.

After a somewhat excited defence of the Administration by Senator Doolittle, and severe attacks on both President Lincoln and General Banks by Mr. Powell and others, Ten Eyck’s motion to strike out Louisiana from the joint resolution was defeated, February 3, 1865, by a vote of 22 to 16.^[387] Lane’s motion immediately after to strike out the preamble, which would leave only an unmeaning resolution, was lost by a vote of 30 nays to 12 yeas.^[388]

Senator Harris proposed to amend Mr. Collamer’s substitute by resolving, “That it is inexpedient to determine the question as to the validity of the election of electors in the said States of Tennessee and Louisiana, and that in counting the votes for President and Vice-President the result be declared as it would stand if the votes of the said States were counted, and also as it would stand if the votes of the said States were excluded, such result being the same in either case.” By nearly the same majority this proposition also was voted down without much discussion.^[389]

Reverdy Johnson, who favored the House resolution as amended by the Committee on the Judiciary, did not think the rebellious States were out of the Union, and asserted that there was no power in any branch of Government to declare war against a State. Referring to the Whiskey Insurrection in Washington’s administration, he said that Congress passed no act declaring it at an end. The President declared it. It ended itself. The insurrectionists laid down their arms, and expressed willingness to yield obedience to the United States; that ended the insurrection and disbanded the Federal forces, “and that happening, the State of Pennsylvania, every part of it, stood exactly in the relation, for all purposes, in which the State and every part of it stood before the insurrection was commenced.”^[390]

Mr. Collamer said that the real point in Senator Johnson’s argument was whether Congress had anything to do in the reorganization or reËstablishment of those States. Mr. Johnson, continued the Senator from Vermont, seemed to think not. On resuming his speech, February 4, 1865, he inquired: “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. It is not enough that they stop their hostility and are repentant. They should present fruits meet 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; and before they come here to perform their duties or privileges again as members of this Union, they should place themselves in an attitude showing to us that they have truly taken that position, and we should pass upon it; and I insist that the President, making peace with them, if you please, by surceasing military operations, does not alter their status until Congress passes upon it.... I believe that when reËstablishing 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.”

The guaranty clause, Mr. Collamer asserted, implied that States were to be kept in the Union; it was inserted for the security of the minority in a State, though there might be but one man there to redeem Sodom. No one State could discharge the United States from a performance of that obligation. To keep it Congress, if it was essential to maintaining a republican form of government, could abolish slavery if that institution stood in the way of performing the guaranty. Before restoring the States, he added in conclusion, the President would need the assistance of Congress, else how could he get rid of the confiscation act.^[391]

Collamer’s substitute, which shared the fate of the amendment offered by Ten Eyck, could be construed only by an examination of the President’s proclamation to ascertain what States were in insurrection.

To the preamble, which stated that four years earlier certain designated States had rebelled, and on the 8th of November preceding were in such condition of rebellion that no valid election for the choice of electors of President and Vice-President could be held there, Senator Pomeroy objected that the rebel governor of Arkansas had been killed, and the entire disloyal government destroyed. When the election was held the real local authorities in that State were Union men. It would not be true, as the preamble declared, that these authorities were in rebellion on November 8. The terms of the disloyal officials in Arkansas had expired by limitation; the chief men in that government were not alive to exert any influence if they were disposed to do so. It was not true to say that they made war on the United States on the 8th of November, 1864, or that they were then in condition to do so. Since the rebellion began they never had but one election.

Pomeroy’s amendment to substitute for “state of rebellion” the word “condition” was carried by a vote of 26 to 13. The preamble, as thus perfected, declared that certain States had rebelled four years before, and on November 8 were in such “condition” that no valid election was held.^[392]

Mr. Lane believed that for the protection of Union men in those States a loyal government was indispensable, and that it did more to demoralize the insurgents and to close out the rebellion than any other act that could be accomplished. It would be worth more than all the victories that could be gained in the field.^[393]

Senator Howe in closing the debate observed that four days had been spent in discussing not the passage of the joint resolution, but the reason to be assigned in its preamble for excluding the vote of certain States. It belonged to the legislatures of those commonwealths, he maintained, to declare whether valid elections had been held there. He distrusted that sort of legislation, and in conclusion said: “If you will take hold of the question of the political relations of these communities, and if you will tell what is the truth, and has been the truth since 1861, that there are no State organizations there, no State governments, I am with you. When you establish that, you know what they may and what they may not do.”^[394]

By a vote of 29 to 10 the joint resolution was passed on February 4. In the record the names of Cowan, Doolittle, Harris, Howe, Lane of Kansas, Nesmith, Saulsbury, Ten Eyck, Van Winkle and Willey appear in opposition.^[395]

For the purpose of canvassing the electoral votes, both Houses assembled in joint convention four days later, February 8, 1865. The Vice-President in discharge of his duty proceeded to open and hand to the tellers the votes of the several States, beginning with Maine. No one dissenting it was agreed on a suggestion by Senator Wade to dispense with the reading of everything in the certificate except the result of the vote.

When all the votes had been recorded, Cowan said: “Mr. President, I inquire whether there are any further returns to be counted.” The Vice-President replied in the negative. To his former question Mr. Cowan then added, “And if there be, I would inquire why they are not submitted to this body in joint convention, which is alone capable of determining whether they should be counted or not.” The Vice-President acknowledged that he had in his possession returns from the States of Louisiana and Tennessee, but in obedience to the law of the land “the Chair holds it to be his duty not to present them to the convention.” The Pennsylvania Senator thereupon inquired whether the joint resolution had been signed by the President, and was informed that while the official communication of its approval had not been received by either House, the Chair had been apprised that the resolution had received the Executive approval.

Cowan then suggested that, as a motion was not in order, the votes of Louisiana and Tennessee be counted, and that the convention determine the fact. Representative Cox immediately recommended the reading of the joint rule under which both Houses were then acting. On being directed by the Vice-President the secretary complied with this suggestion.

Thaddeus Stevens did not think any question had arisen which required the two Houses to separate, for that, according to the language of the joint resolution, could only occur upon the reading of those returns which had been opened by the president of the convention.

Mr. Cowan did what he could to bring the question before the two Houses, and failing, withdrew it. The result, after some further effort to call up the returns from Louisiana and Tennessee, was then announced. The tellers reported that for President of the United States Abraham Lincoln had received 212, and George B. McClellan 21 votes; that for Vice-President Andrew Johnson had received 212, and George H. Pendleton 21 votes.^[396]

On February 10 the president pro tempore laid before the Senate the following communication from Mr. Lincoln:

The joint resolution entitled “Joint resolution declaring certain States not entitled to representation in the Electoral College” has been signed by the Executive, in deference to the view of Congress implied in its passage and presentation to him. In his own view, however, the two Houses of Congress, convened under the twelfth article of the Constitution, have complete power to exclude from counting all electoral votes deemed by them to be illegal; and it is not competent for the Executive to defeat or obstruct that power by a veto, as would be the case if his action were at all essential in the matter. He disclaims all right of the Executive to interfere in any way in the matter of canvassing or counting electoral votes, and he also disclaims that, by signing said resolution, he has expressed any opinion on the recitals of the preamble, or any judgment of his own upon the subject of the resolution.^[397]

Except for a brief speech by Reverdy Johnson this message was received in silence by the Senate. Mr. Johnson commented upon the extraordinary course of the President, whose duty, he said, was clearly to approve or to disapprove, not virtually to read a lecture to the Senate as he had done. The Maryland member did not doubt that the motives of the President were perfectly correct and patriotic, but it was not the first time, he asserted, that that had been done. The bill for the reconstruction of the seceded States passed both Houses by an overwhelming majority; but it was defeated by the President’s failure to approve, and the adjournment of Congress before ten days elapsed. In his manifesto or proclamation he approved portions and disapproved others.^[398]

Short as this paper was, however, it was entirely characteristic of the President. This little lesson in constitutional law is only another proof that Mr. Lincoln possessed in an eminent degree the faculty of seeing clearly through the most intricate question. His disposal of this difficulty as well as his reflections on Congress remind one of the facility with which he straightened out for General Butler the liquor problem at Norfolk. The succeeding chapter will describe another phase of the controversy between the political departments of the Government.