When Congress met in December, 1864, Mr. Lincoln, who received the electoral votes of twenty-two of the twenty-five States participating in the contest, had again been chosen President. In the struggle for power he had refrained with his usual prudence from improving his advantage over the Legislative department. The annual message omitted all reference to the controversy occasioned by his failure to sign, and his proclamation concerning, the bill of Messrs. Wade and Davis; the question of reconstruction was noticed in only the most casual manner. A statement of the satisfactory condition of foreign relations introduced the Executive communication; the subject of finance received the consideration that its importance required. The vast proportions and the efficient state of the navy were mentioned as matter of congratulation. General Sherman’s projected march of three hundred miles through hostile regions was characterized as the most remarkable feature in the military operations of the year. This with other evidences of approaching disruption in the Confederacy led logically to a summary of what had been accomplished toward reorganization in those States already wrested from insurgent armies. On this subject the message observed: “Important movements have also occurred during the year to the effect of molding society for durability in the Union. Although short of complete success, it is much in the right direction that twelve thousand citizens in each of the States of Arkansas and Louisiana have organized loyal State governments, with free constitutions, and are earnestly struggling to maintain and administer them.”^[345] Movements in the same direction, he said, more extensive though less definite, were in progress elsewhere and should not be overlooked. No plan of reconstruction was proposed, or even alluded to in the message.

Among questions beyond Executive authority to adjust was specified the admission of members to Congress. In disclaiming power over this subject he anticipated the criticism of those Senators and Representatives who later in the session ascribed to him a design to usurp important functions of the Legislative branch of Government.

From its concluding paragraphs we are enabled to collect the sentiments of the President relative to his offer, a year before, of a general pardon to designated classes upon specified terms. In this connection he said: “But the time may come—probably will come—when public duty shall demand that it [the door open to repentant rebels] be closed; and that, in lieu, more rigorous measures than heretofore shall be adopted.” This seems to establish beyond question the fact that Mr. Lincoln feared some measures more stringent than he had been hitherto pursuing might be rendered necessary by the failure of a policy of clemency to recall any large number of insurgents to their obedience to the Constitution and the laws.

He ventured to recommend a reconsideration of the proposed constitutional amendment abolishing slavery throughout the United States, which at the preceding session had passed the Senate, but failed to receive in the House the requisite two thirds vote. Though the present, he reminded them, was the same Congress and composed of nearly the same members, their judgments were, no doubt, influenced by an intervening election, which, though it imposed on them no obligation to change their views, made it reasonably certain that if they did not submit the amendment to the States the succeeding Congress would. He inquired, since its passage was merely a question of time, whether they would not agree that the sooner the better? The voice of the people, he added, had for the first time been heard on that question.^[346]

As the President believed, the House had been so far converted to his views that a joint resolution adopting the amendment was passed early in the session by a vote of 119 to 56.^[347]

When Congress assembled the public was occupied chiefly in watching the progress of naval and military operations. The sinking of the Alabama and the capture of the Florida practically ended Confederate privateering, for any expectations based upon the escape of the Albemarle were frustrated by the enterprise and daring of Lieutenant Cushing. One army had been destroyed by Sheridan, another crippled by Thomas. Tidings of telling blows inflicted by General Sherman gave something like assurance of his safety. Though not without heavy loss, Grant had forced Lee within the defences of Richmond and Petersburg. Some of the lesser Union advantages had, it is true, been offset by Southern victories; signs of disintegration within the Confederacy, however, were multiplying, and this condition forced upon Congress the inevitable question of reconstruction.

By unanimous consent of the House Thaddeus Stevens, on December 8, offered resolutions distributing the President’s message. To the Committee on the Rebellious States was referred so much of it as was alleged to relate “to the duty of the United States to guaranty a republican form of government to the States in which the governments recognized by the United States have been abrogated or overthrown.”^[348]

Nothing whatever in the message or the accompanying documents related to any such duty on the part of the United States, and the resolution assumed such a recommendation, no doubt, for the purpose of bringing the subject before Congress. One week later, Mr. Ashley, of Ohio, reported a bill, on the subject of Stevens’s resolution, which was read twice, ordered to be printed and returned to the Committee. On January 12 succeeding Representative Eliot, of Massachusetts, gave notice of his intention to offer at the proper time an amendment to the bill in charge of Mr. Ashley. No objection having been made, it was ordered to be printed. This was, in fact, a substitute for the bill reported by the Ohio member, and provided “that no State engaged in rebellion against the Government of the United States shall be allowed to resume its political relations with the Government of the United States until by the action of the loyal citizens within the limits of the same a State constitution shall be ordained and established, republican in form, forever prohibiting involuntary servitude within the State, and guarantying to all persons freedom and equality of rights before the law.” Its second section provided “that the State of Louisiana shall be permitted to renew its political relations with the Government of the United States under the constitution adopted by the convention assembled at New Orleans on the 6th of April, 1864.”^[349]

That some of the more influential among the radical members desired to avoid, if possible, a controversy with the President may be fairly inferred from a letter of Charles Sumner, written December 27, 1864, to Doctor Lieber. Among other things the Senator says: “I have presented to the President the duty of harmony between Congress and the Executive. He is agreed. It is proposed to admit Louisiana (which ought not to be done), and at the same time pass the reconstruction bill for all the other States, giving the electoral franchise to ‘all citizens’ without distinction of color. If this arrangement is carried out, it will be an immense political act.”^[350] A communication to John Bright, written a few days after the above, January 1, 1865, confirms this view. On that occasion Mr. Sumner said: “The President is exerting every force to bring Congress to receive Louisiana under the Banks government. I do not believe Louisiana is strong enough in loyalty and freedom for an independent State. The evidence on this point seems overwhelming. I have discussed it with the President, and have tried to impress on him the necessity of having no break between him and Congress on such questions. Much as I am against the premature recognition of Louisiana, I will hold my peace if I can secure a rule for other States, so that we may be saved from daily anxiety with regard to their condition.”^[351] These passages explain the amendment to the revived bill. Sumner was willing to remain a neutral spectator of the debates on the recognition of Louisiana provided the reorganization of the remaining States should be made on the lines indicated by Congress.

On January 16, Ashley’s bill was reached in the regular order of business; by direction of the Committee on the Rebellious States, it was offered as a substitute for the original measure, from which it differed in one very important particular. It expressly recognized the loyal governments of both Louisiana and Arkansas. By unanimous consent the proposed enactment, considered as an original bill, was offered for the plan submitted by Henry Winter Davis at the preceding session.

Representative William D. Kelley, of Pennsylvania, would amend the clause providing for the enrollment of “all the white male citizens of the United States” by inserting the words “and all other male citizens of the United States who may be able to read the Constitution thereof.” Mr. Eliot then introduced the amendment of which he had previously given notice. By Representative Arnold another amendment was offered to that of Eliot.

Judge Kelley opened the debate by declaring that indemnity for the past the victors in the war could not hope to obtain; they could, however, demand security for the future. In a very long speech he discussed the status of the negro in the early days of the Republic; this portion of his address was concluded with the remark that his amendment did not contemplate that the entire mass of people of African descent, degraded and brutalized by laws and customs, be immediately clothed with all the rights of citizenship, but only those so far fitted by education for its judicious exercise as were able to read the Constitution and the laws of the United States. This, indeed, he admitted, was only an entering wedge and was to be regarded as an aid to their improvement; when sufficiently advanced they were to be endowed with every right necessary to their protection. A strong plea was made to confer the suffrage on the colored man; otherwise, asked the Pennsylvania member, how will it be possible to prevent his subjugation? He would not rely on men’s abstract sense of justice, for that had not prevented outrages in the past. Justice should be embodied in laws and constitutions while it was in the power of Congress to do so. That body was to determine who should select delegates to the conventions that were to frame governments for the insurgent States. The Union minorities in the South required the political support of every loyal man in their communities. It was the power, he reminded Representatives, not the spirit of the rebellion that Federal armies were overthrowing. In conclusion he declared himself in favor of conferring the suffrage on “every man who fights or pays,” a doctrine which he ascribed to Jefferson, in whose party he said he had been trained.^[352]

Mr. Eliot, who spoke on January 17, regretted that he had not been able to support the amended bill reported from the select committee. Partly because of the interest, he said, which his friend Henry Winter Davis took in the subject he came to its consideration prepossessed in its favor. The provisions of the measure passed at the preceding session, however, were not then discussed. There were strong reasons for action at that time which no longer existed to the same extent. There was time enough on the present occasion, January, 1865, to make it more perfect and more practicable than the plan offered by the committee.

Entering upon an examination of the bill he declared that its terms were peremptory; eleven States were in rebellion, and by the first section the President was called upon to appoint for each of them a provisional governor. Such appointments were to be made when the measure became a law. Except in Louisiana, Arkansas and Tennessee these appointments would be not only useless but a needless source of expense, and though section fifteen recognized the governments established in the two former, the machinery of the bill would be applied to all the States in rebellion.

It imposed upon the several governors proposed to be appointed executive duties which they could not assume until the power of the United States had vindicated itself within those States; there were other duties which they should not be required to perform. They were to see that the laws which were in force in that section in 1860 should be faithfully executed, with no knowledge on the part of the House of the import of those laws. Why should Congress assume responsibility for enforcing the black code? Why demand the enforcement, he asked, of minute police regulations in States where complexion appointed or reduced punishment? Other laws were specified, such as those punishing the circulation of books or writings advocating human rights, laws requiring the removal from those States of free persons of color, prohibiting them from engaging in business, and punishing by the lash upon suspicion of false testimony and before conviction. There was a law, he said, in one of those States requiring the imprisonment of free colored sailors in her ports.^[353] These provisions and many others of the same tenor were contained in the statute books of those States in 1860 and had been enforced. The penalty differed according to color; offences when committed by a white man were punished in one way, and when committed by colored men in another way. The provisional governor was charged with the faithful execution of such laws.

The provision for the assessment and collection of taxes he characterized as a remarkable proposition; they were to be imposed without representation, without any persons at the national capital to enlighten Congress on the subject; they were to be laid without the knowledge of the parties concerned or the parties to be affected.

The sixth section, he continued, provided that every person who should thereafter hold certain offices in the Confederacy was “declared not to be a citizen of the United States.” That, Mr. Eliot contended, was applying the punishment before the offence had been committed. If Congress declared that a man should for a certain offence be deprived of citizenship, could he, then, be indicted for treason subsequently committed?

The question of electing delegates to constitutional conventions presented a practical difficulty. Colored soldiers and sailors in the service were made voters by the bill; but they were not enrolled, they were not registered or credited to any county or parish; they were aggregated. They had no legal local habitation. They may have belonged to men owning plantations in several districts. The bill did not designate. With the white soldier the case was different, for he was known to belong to a certain district. If colored men entitled, because of military or naval service, to participate in the choice of delegates should be out of the service before the election occurred, and others should have taken their places, which class could vote, those in the service of the Government when the election for delegates took place, or those serving when the bill passed Congress?

Whether the difficulties pointed out were inseparable from any bill on the subject, he would not undertake to say. But in his judgment it would be unsafe for Congress to permit a measure containing such provisions to become a law. “Why,” he asked, “is it not more wise to take the States as they shall present themselves for admission?” Arkansas had acted in one way, Louisiana in another, and Tennessee was proceeding in still a different manner.

Notwithstanding his objections to some features of the Louisiana constitution, he favored her recognition. From information derived from the highest sources, he had no doubt that her Legislature would supply such deficiencies. There were influences bearing on that body which he believed could not be resisted.

Thaddeus Stevens inquired, “If Louisiana and those other States are in the Union, by what authority do we legislate for their internal police?” This provoked laughter on the Democratic side of the House. “If they are in the Union,” answered Mr. Eliot, “just as Pennsylvania is, we ought not to; but the difficulty is that they are not in the Union in that sense, to that extent, thus fully. They are not out of the Union territorially, and yet rebellion has overthrown their governments for a time, and it is needful that the Congress of the United States should intervene and should legislate.” To this the Pennsylvania leader further observed, “I understand the gentleman to say that they are partly in the Union, and partly out. About how much are they in the Union and about how much out?” This keen thrust was greeted by more laughter from the Democratic members.^[354]

On his motion to postpone further consideration for two weeks Mr. Wilson demanded the previous question. Henry Winter Davis appealed to him to withdraw the motion. This Mr. Wilson declined to do, upon which the Maryland member observed, “a vote to postpone is equivalent to a vote to kill the bill.” By 103 yeas to 34 nays, however, further debate was postponed till the 1st of February succeeding.^[355]

Though Representative Washburne, of Illinois, moved on February 7 a further postponement of two weeks, the subject was before the House again on the following day, when it went over informally. Debate was not resumed till the 20th, when Mr. Dawes, of Massachusetts, took the floor.

The Thirty-eighth Congress, he said, was in the last days of its last session; a bill containing the main features of the measure under consideration, though it passed both Houses, failed at the preceding session to become a law; this circumstance led him to make a careful examination of the subject. The proposed enactment was not designed to invigorate the army, the navy or the Executive; it was intended rather to follow the army. It was intended to be applied to the condition in which the army left the State. “it is an attempt,” he said, “to gather up the ‘disjecta membra’ of those States, the broken and torn fragments of those communities, and out of the chaos, as well as the ruins and debris that are left in the march of those armies, to create a State capable of discharging the functions, exercising the authority, and invoking the recognition of this Government, and of the people under which it lives....

“... The bill proceeds upon the supposition not only that there are States still existing, but that their old constitutions and laws are still in full force and operation”; for it imposed upon the provisional governor the faithful execution of those laws in force when rebellion overthrew their State governments, with the single exception of the provision touching the enforcement of laws against slavery and the mode of trial and punishment of colored people. Two remarkable features of the bill, he asserted, were those empowering the Executive in Washington, by and with the advice and consent of the Senate, to appoint governors in every one of those States; then, no matter what provisions for their election existed in the State law, the President was authorized to appoint just as many and just as few officers as he pleased. It might be a judge of the highest court of judicature in the State; or it might be the humblest road-master; it might be any one or all of the countless corps between them. There was no provision in the bill that they should be even residents of the State. “An army of officers,” he continued, “in one paragraph of four lines, is here created, subject to the sole authority and control of the President of the United States.” In a Confederate report Mr. Dawes noticed that there were 13,000 of them in a single State.

“What,” he asked, “is the effect to be on the people over whom, from every quarter of this Union, broken-down politicians, men without place, foot-loose, are to be placed? Sir, it is a reproach to our Government at this hour that there are, about this capital and in the Northern States, men who have been appointed to the judgeships of district and other courts of the rebel States and Territories, drawing quarterly the salaries of those offices, although they have never been able, from the hour they received their commissions to the present moment to set foot in the States over whose courts they have been appointed. They could not go one rod into the State, positions in whose highest courts they have held for more than a year, without being hung on the first tree.... But my friend [Mr. Ashley] has reported a bill here which authorizes an army of thousands of these officeholders to go into those States, with commissions from this capital in their pockets, to lord it over the poor, miserable inhabitants left behind the army there. These rebel States may be thus converted into asylums for broken-down politicians.”

In the language of indignation he entered into a criticism of that policy which proposed to levy on the houseless and homeless wanderers in the South, even then only saved from starvation by the charity of the North, precisely the same amount of taxes raised in 1860 when, by comparison, the people were in a princely state. “Sir,” he declared, “there is not an army, great as our army is, that has power enough to accomplish that one single feat provided for in this bill, for the very plain reason that there is not money enough left in any one of these States outside the Government with which to pay that round sum for one single year.... This wise, efficacious policy is resorted to in this bill to hasten on, I suppose, that other day mentioned in it, when a majority of these people, molded by this process, won by its benignity ‘shall voluntarily take the oath of allegiance.’”

He asserted, as Eliot had done, that the committee were calling upon Congress to sanction all the black codes of those States, save only that part which held men in bondage, and that was allowed to enforce itself.

The omissions, he asserted, were not less remarkable than the provisions of the bill. The state of things established by it was of indefinite duration. There was no provision for the peculiar conditions existing there. “There is no attempt at any adaptation of these laws to the new state of things consequent upon the rebellion, and consequent upon our constitutional action here. Not only is there no provision for the new wants and necessities of this wasted and wretched people who have been involved in the rebellion, but for that other people who have now passed into freedom by our legislation, and by the military consequences of this rebellion, who are now without food, without subsistence, without knowledge, and without opportunity to support and maintain themselves; yes, sir, without homes, literally without where to lay their heads.” There were 3,000,000 of these people, he added, whose very existence was ignored by the bill; there was no provision for schools; no provision for even a poorhouse; no provision to teach them the arts of civilization, no provision for kindling in them hope, for holding up before them incentives to industry or securing to them its reward. Under the operations of the bill they were the objects of free plunder; they were to go forth to be hunted, despoiled and persecuted: outcasts in the land.

By the bill it was left in the discretion of the provisional governor, he asserted, to terminate the system set over them. He, as well as the army of officeholders under him, would be interested in prolonging the period until the people had sufficiently returned to their obedience. Before the initiatory steps could be taken, even if the provisional governor were willing, a majority of the people in each State must of their own choice signify their loyalty by taking the oath of allegiance. This made the matter dependent not upon the wish of the loyal, but of the disloyal persons who constituted the majority in those States.

The plan, he further stated, ignored the principle that the American people have the right to shape and alter for themselves the rules by which they are to be governed. If the matter was left in the hands of the disloyal, the time would be far distant when Union governments would be instituted in those States. The only wise policy was to establish a government among the loyal; even though it might be weak and inefficient at first, it would finally win back those who desired to be reconciled. The other numerous class, those who deserved to be hanged, were not provided for in the bill. He was opposed to the provision which would turn over to insurgents the loyal minorities in those States, and was not less opposed to prescribing a fixed iron rule by conformity to which alone out of chaos and anarchy might be made a loyal government.

Further, the bill proceeded upon the assumption that there was no power in these people, except what was conferred on them by Federal legislation, to establish State governments. This he denied, and the authors of the proposed measure, by offering to recognize the establishments otherwise organized in Arkansas and Louisiana had conceded as much. In the people, he said, and in them alone, existed the authority to form an organic law subject to the constitutional provision that the government should be republican in form. He favored a recognition of the Louisiana government not because it was formed under the guidance of General Banks, but because it was made by the loyal people of that State, was acquiesced in by them, and because under it they were building up a loyal government.

Governors Hahn and Murphy and the officials chosen in Louisiana and Arkansas who had been exercising their functions for a year would be dispossessed by foreigners sent amongst them by the President, who was empowered to do so by the bill; bickerings, heartburnings and discontent would follow any attempt to enforce this policy. Sooner or later the people of those States must be allowed to form governments for themselves, protected by the parental care of the central authority.^[356]

Fernando Wood declared that he had listened with interest and pleasure to words of conciliation for the South; little but subjugation, devastation and annihilation had thus far been heard from the party, the Administration and the people represented by Mr. Dawes.

The seceding States, Mr. Wood contended, had republican forms of government which the treason of individuals did not affect. Nor did individual crimes destroy the rights of the people to regulate their domestic institutions. The forms of government were the same as those that existed in the rebellious States six years before. Even admitting that they had not such governments in existence among them, the bill did not provide a republican form of government for those States.^[357]

He was followed in opposition to the proposed enactment by Mr. LeBlond, of Ohio, who discussed both the status of the rebellious States and their form of government. His speech on the former question added nothing of value to what Representative Pendleton had said at the preceding session, nor did he enter upon so able an examination of the clause guaranteeing a republican form of government as did Senator Carlile on that occasion.

Henry T. Blow, of Missouri, made an appeal for the admission of Arkansas and Louisiana to prevent destructive military raids into those States as well as his own. He would support any measure that would restore them and strengthen their loyal population. However, he did not favor negro suffrage. His remarks scarcely touched the measure before the House.^[358]

Joseph K. Edgerton, of Indiana, who followed in a lengthy speech in opposition, said:

The forerunner of this measure of legislation, so far as this House is concerned, may be found in the territorial bill reported by the gentleman from Ohio [Mr. Ashley] from the Committee on Territories in the Thirty-seventh Congress, in March, 1862. It was aptly termed at the time by the gentleman’s colleague from the Cincinnati district of Ohio [Mr. Pendleton] “A bill to dissolve the Union and abolish the Constitution of the United States.” The bill was summarily, if not indignantly, rejected by the House without a second reading. But, sir, men and events have since changed, if the Constitution of the United States has not changed, and the stone of revolutionary reconstruction then rejected by the master-builders in this House bids fair to become the head of the corner. Then the Constitution was not altogether repudiated as the foundation of our legislation; now revolutionary opinions and plans override it as a thing of the past. Not many are there in this Congress, and fewer there will be in the next, I fear, to do reverence to the Constitution and obey its commands.

The President’s proclamation of December 8, 1863, was then noticed, and his usurpation of authority denounced; the subject of the Louisiana government was also entered upon and fully discussed. He next referred to the introduction early in the preceding session of a resolution by Henry Winter Davis providing for the appointment of a special committee authorized to report a bill guaranteeing a republican form of government to the rebellious States. The fate of that bill, President Lincoln’s proclamation concerning it, and the protest of Wade and Davis were successively dwelt upon.

The question between the President and his two Congressional friends, Wade and Davis, was to Mr. Edgerton’s mind “one between two usurping powers, the Executive and the Legislative”; but, he continued, “I am free to say my sympathies were with the legislators and not with the President. Executive edicts have done more than acts of Congress during the last four years to sap the foundations and remove the landmarks of the Constitution.” The majority in Congress, he asserted, by consenting to recognize the governments of Louisiana and Arkansas, kissed the hand that smote them.

He opposed a recognition of the Louisiana government because of its unconstitutional origin; Arkansas, he said, differed from it in no material respect. After stating the provisions of the bill he gave the following summary of its effects:

1. To take from the people of the State all power to initiate proceedings to reorganize their own State government in harmony with the Constitution of the United States, or even to prescribe the qualifications of suffrage. The bill ignores the idea that there is any vital power in the people to restore their State government—not only taken from them by rebellion but kept from them by Federal power—....

2. The effect is to exclude from the reorganization the entire white population of the State who shall have held office or voluntarily borne arms against the United States, or who shall not take the oath of July 2, 1862.

3. To confine the right of suffrage and power of reorganization to enrolled men and Federal soldiers taking the oath; and the law affords no guaranty that even the enrollment shall embrace a majority of males over twenty-one years of age. The majority required as a basis of action is so many of enrolled persons taking the oath as, with the soldiers, shall constitute a majority of the persons enrolled; that majority, through defect or fraud in enrollment, may be not even one tenth of the males of the State over twenty-one years of age.

4. The effect is the absolute disfranchisement of eleven States and their continuance in a state of war until they accept “the abandonment of slavery,” as dictated to them by the United States, and until by organic law they declare that all persons shall have “equality of civil rights before the law” of the State; a well-seeming phrase of broad import; the precise meaning of which I do not understand. A woman is a person, a negro is a person, an alien is a person, and the right of suffrage is a civil right. Does this high-sounding phrase of the bill mean that women, negroes, and aliens shall have equal right to vote in a regenerated State with white male citizens? What does “equality of civil rights before the law for all persons” mean?

In fact and in purpose, then, the bill before the House is one to abolish slavery in the United States, and to enfranchise and elevate negroes, and to disfranchise and degrade white men; a bill to change the social and industrial systems and internal policy of eleven States; a bill to take from those States their inherent reserved constitutional right to regulate in their own way their internal policy, not inconsistent with the Constitution of the United States. It is a bill to punish treason without trial or conviction; a bill to confiscate private property without adequate compensation; in short, a bill to reconstruct States and make State constitutions, when in truth no States or their constitutions have been destroyed, or need reconstruction, unless by the voluntary action of their own people.

If this is a revolutionary Congress, you have a revolutionary power to pass this bill; but if it be, as I am bound by my oath of office to believe and assert, a Congress sitting under the Constitution of the United States, and having no powers outside of or unknown to it, then you cannot constitutionally pass this bill.

He stated further that the bill “embodies a spirit and purpose toward the Southern people which, if impolitic and vindictive one year ago, when the bill first came before the House, and when our enemy was far stronger and more defiant than now, is still more impolitic and vindictive at this time, when the minds of all good men are searching diligently for ways of reconciliation and peace.”

In conclusion he declared: “The Congress of the United States, the legislative power of the Union, and the Constitution, is asked by this bill to be the minister and executioner of the great revenge of section upon section, States North upon States South. For one, sir, I wash my hands of the deed.”^[359]

The passages quoted convey no adequate idea of the able and comprehensive character of Mr. Edgerton’s speech. It was concerned not only with the subject under discussion, but extended to a rather searching examination of Republican professions in 1861 and the revolutionary practices of a later time. It was marked throughout by perfect temper, but was not on that account less effective. Any extension of time, however, even twenty minutes, was denied him by the majority.

At this point, February 21, Ashley withdrew a motion he had previously made to recommit the bill, and by authority of his committee withdrew the measure which was the original text and, in lieu thereof, introduced another. With this substitution the pending amendments fell. Representative Wilson desired his substitute to hold its original place. Messrs. Wilson, Kelley and Eliot then modified their amendments to the measure hitherto under discussion, and Ashley explained his action in a brief address.

He referred to the bill which at the preceding session failed to receive the President’s approval. Since then he had labored earnestly to conciliate members on his side of the House who had scruples about the measure as it originally passed, and, if possible, obtain a united vote in its favor. For that purpose he consented to a compromise in providing for the recognition of Louisiana, Arkansas and Tennessee. The conditions were not such as he would prescribe if those States stood alone. But in order to secure what he thought of paramount importance—universal suffrage to the liberated black men of the South—he consented to insert in the bill which he had proposed a few days previously, a conditional recognition of existing governments in the States of Louisiana and Arkansas, and the government then being organized in Tennessee.

Disappointed in his efforts to win the coÖperation of Representatives who entertained practically the same opinions which he did in favor of universal suffrage for the colored man, and in favor of the early recognition of every Confederate State with a population sufficient to maintain a government, he now declined to offer his substitute. At the request and with the concurrence of his committee the bill of the preceding session was offered with some modifications. These alterations were to strike out all that the bill contained to which gentlemen had raised objection, in that it seemingly authorized the execution of State laws as they existed at the commencement of the rebellion. To make it perfectly clear what the committee intended, they had inserted a provision that the governor should execute only such laws as related to the protection of persons and property; that all laws inconsistent with the proposed enactment, and all laws recognizing the relation of master and slave, should not be enforced. The section which authorized the collection of taxes had been omitted. He preferred not to commit himself to a recognition of the Louisiana and Arkansas governments, unless he could secure what he thought of paramount importance in reorganizing the other States.

“It is very clear to my mind,” he asserted, “that no bill providing for the reorganization of loyal State governments in the rebel States can pass this Congress. I am pretty sure that this bill and all the amendments and substitutes offered will fail to command a majority of this House.”

The course of debate had shown on the Republican side, he said, so strong an individuality that no compromise could bring them together on the great question of reconstruction. Many on his side were capital leaders in the minority; they were good at pulling down, but not so good at leading majorities and building up. He admitted their utter inability to agree on the subject, and had consented to a conditional recognition of certain State governments because he knew they could be upheld by military power until the rebellion should be crushed. Republicans were so nearly unanimous at the preceding session, he said, that he felt the concessions embodied in his substitute would enable them to agree without much discussion or without consuming the valuable time of the House so late in the session. His remarks not only showed disappointment at the attitude of his party, but clearly revealed the existence of a schism in its ranks.^[360]

Henry Winter Davis then rose to state the case for the House. The bill, he said, to which amendments were pending was the same as that which at the preceding session received the assent of both Houses of Congress, with some modifications to suit the tender susceptibilities of gentlemen from Massachusetts: “first, the sixth section, declaring rebel officers not citizens of the United States, has been stricken out; second, the taxation clause has been stricken out; third, the word ‘government’ has been inserted before ‘trial and punishment,’ to meet the refined criticisms of the two gentlemen from Massachusetts who suppose that penal laws would be in force and operative when the penalties were forbidden to be enforced; that discriminating laws could survive the declaration that there should be no discrimination between different persons in trial or punishment. There has been one section added to meet the present aspect of public affairs; that section authorizes the President, instead of pursuing the method prescribed in the bill in reference to the States where military resistance shall have been suppressed, in the event of the legislative authority under the rebellion in any rebel State taking the oath to support the Constitution of the United States, annulling their confiscation laws and ratifying the amendment proposed by this Congress to the Constitution of the United States, before military resistance shall be suppressed in such State, to recognize them as constituting the legal authority of the State, and directing him to report those facts to Congress for its assent and ratification. With these modifications, the bill which is now the test for amendment is the bill which was adopted by this House at the last session.”

He need not be at the trouble, he said, to answer the arguments of gentlemen who at the preceding session voted for the bill, and who, in the repose of the intervening period, had criticised in detail the language and, not stopping there, had found in its substance that it violated the principles of republican government and sanctioned the enormities of those laws with which slavery had covered and defiled the statutes of every Southern State.

With increasing severity Mr. Davis proceeded:

That these discoveries should have been made since the vote of last session is quite as remarkable as that they should have been overlooked before that vote. But they were neither overlooked before nor discovered since. The vote was before a pending election. It is the will of the President which has been discovered since.

It is not at all surprising, Mr. Speaker, that the President, having failed to sign the bill passed by the whole body of his supporters by both Houses at the last session of Congress, and having assigned, under pressure of events, but without the authority of law, reasons, good or bad, first for refusing to allow the bill to become a law, and therefore usurping power to execute parts of it as law, while he discarded other parts which interfered with possible electoral votes, those arguments should be found satisfactory to some minds prone to act upon the winking of authority.

The weight of that species of argument I am not able to estimate. It bids defiance to every species of reply. It is that subtle, pervading epidemic of the time that penetrates the closest argument as spirit penetrates matter that diffuses itself with the atmosphere of authority, relaxing the energy of the strong, bending down the upright, diverting just men from the path of rectitude, and substituting the will and favor of power for the will and interest of the people as the rule of legislative action.

All I desire now to do is to state the case and predict results from one course or the other. The course of military events seems to indicate that possibly by the 4th of next July, probably by next December, organized, armed rebellion will cease to lift its brazen front in the land. Disasters may intervene; errors or weaknesses may prolong the conflict; the proverbial chances of war may interpose their caprices to defer the national triumph; but events now point to the near approach of the end. But whether sooner or later, whenever it comes, there is one thing that will assuredly accompany it. If this bill do not become a law, when Congress again meets, at our doors, clamorous and dictatorial, will be sixty-five Representatives from the States now in rebellion, and twenty-two Senators, claiming admission, and, upon the theory of the honorable gentleman, entitled to admission beyond the power of argument to resist it; for peace will have been restored, there will be no armed power but that of the United States; there will be quiet, and votes will be polled under the existing laws of the State, in the gentleman’s view. Are you ready to accept that consequence? For if they come to the door of the House they will cross the threshold of the House, and any gentleman who does not know that, or who is so weak or so wild as to suppose that any declaratory resolution adopted by both Houses as a condition precedent can stop that flood, had better put his puny hands across the flood of the flowing Mississippi and say that it shall not enter the Gulf of Mexico.

There are things, gentlemen, that are possible at one time and not possible at another. You can now prevent the rise of the flood, but when it is up you can not stop it. If gentlemen are in favor of meeting that state of things, then do as has been already so distinctly intimated in the course of this debate, vote against this bill in all its aspects; leave the door wide open; let “our brethren of the South,” whose bayonets are now pointed at our brothers’ hearts, drop their arms, put on the seemly garb of peace, go through the forms of an election, and assert the triumph of their beaten faction under the forms of political authority after the sword has decided against them. I am no prophet, but that is the history of next December if this bill be defeated; and I expect it not to become a law.

But suppose the other course to be pursued; suppose the President sees fit to do what there is not the least reason to suppose that he desires to do; suppose that after he has destroyed the armies in the field he should go further, and do, as I think he ought to do, what the judgment of this country dictates, treat those who hold power in the South as rebels and not as governors or legislators; disperse them from the halls of legislation; expel them from executive mansions, strip them of the emblems of authority, and set to work to hunt out the pliant and supple “Union men,” so-called, who have cringed before the storm, but who will be willing to govern their fellow-citizens under the protection of United States bayonets; suppose that the fruitful example of Louisiana shall spread like a mist over all the rest of the southern country, and that Representatives like what Louisiana has sent here, with such a backing of votes as she has given, shall appear here at the doors of this Hall; whose representatives are they? I do not mean to speak of the gentlemen now here from Louisiana in their individual character, but in their political relations to their constituency. Whose representatives are they? In Louisiana they are the representatives of the bayonets of General Banks and the will of the President, as expressed in his secret letter to General Banks. If you admit such representatives, you must admit, on the same basis and under the same influences, Representatives from every State from Texas to Virginia; the common council at Alexandria—which has just sent two Senators to the other House and has ratified the amendment to the Constitution abolishing slavery in all the rest of Virginia, where none of them dare put his portly person—would be entitled to send ten Representatives here and two Senators to speak for the indomitable “Old Dominion.” If the rebel Representatives are not here in December next you will have here servile tools of the Executive who will embarrass your legislation, humble your Congress, degrade the name of republican government for two years, and then the natural majority of the South, rising indignantly against that humiliating insult, will swamp you here with rebel Representatives and be your masters. These are their alternatives and there is no middle ground.

To Mr. Eliot’s objection the Maryland member replied that provisional governors “are appointed now without law, and all we propose is that they shall be under the responsibility of law and subject to the control and confirmation of the Senate.” Having in mind this condition and the Executive appointments to judicial places in Louisiana, Mr. Davis added:

Sir, when I came into Congress ten years ago, this was a Government of law. I have lived to see it a Government of personal will. Congress has dwindled from a power to dictate law and the policy of the Government to a commission to audit accounts and to appropriate moneys to enable the Executive to execute his will and not ours. I would stop at the boundaries of law. When I look around for them I seem to be in a waste; they are as clean gone as the division fences of Virginia estates from here to the Rapidan.

After explaining the efforts of Mr. Ashley and himself to remove the objectionable features of the bill as pointed out by the two members from Massachusetts [Messrs. Dawes and Eliot] he again criticised both with some severity, and continued:

Sir, my successor may vote as he pleases. But when I leave this Hall there shall be no vote from the third congressional district of Maryland that recognizes anything but the body and mass of the people of any State as entitled to govern them, and to govern the people that I represent. And they who may wish to substitute one tenth, or any other fractional minority, for that great power of the people to govern, may take, and shall take, the odium. Ay! I shall brand it upon them that in the middle of the nineteenth century, in the only free Republic that the world knows, where alone the principles of popular government are the rules of authority, they have gone to the dark ages for their models, reviving the wretched examples of the most odious governments that the world has ever seen, and propose to stain the national triumph by creating a wretched, low, vulgar, corrupt, and cowardly oligarchy to govern the freemen of the United States—the national arms to guaranty and enforce their oppressions. Not by my vote, sir; not by my vote!

If the majority of the people will not recognize the authority of the Constitution of the United States, what does the gentleman say who proposes these declaratory resolutions? That they shall come here without it? No, sir; but I would govern them for a thousand years first by the supreme authority of the Constitution which they have defied and will not acknowledge. And govern them how? Not by the uncontrolled will of this or any other President that ever lived, George Washington included. I would govern them by the laws that in the hours of their sanity they enacted, unaltered excepting so far as the progress of events require that they should be altered; to the extent that we have proposed to alter them in our bill, and no further. I leave their own rules for their government, make the President appoint, under his official and public responsibility, the officers who are to execute them; and if they do not like to be governed in that way, let us trust that the prodigal will come one day to his senses, and humbly kneeling before the Constitution that he has vainly defied, swear before Almighty God that he will again be true to it.

That is my remedy for the grievance. That is what we propose....^[361]

Though not his last word on the subject of reconstruction, this was the last great speech of Mr. Davis in Congress on the question of restoring political power to the rebellious States. His alliance with Stevens, a somewhat unnatural union, had brought him only disaster. As noticed in the preceding chapter, he had been defeated for renomination in his district. It is thought that disappointment hastened somewhat his early death, which occurred toward the close of the year, December 30, 1865. Though a touch of pathos may be discerned in his concluding remarks, his was not the craven spirit that was ready, in the words of Edgerton, to kiss the hand that smote him.

Representative Mallory, of Kentucky, on his motion to lay the bill and amendments on the table, called for the yeas and nays. The question being taken was decided in the affirmative; 91 voting to lay the bill and amendments on the table; 64 were opposed, and 27 did not vote.^[362] The Democratic members were a unit against the measure, and in a body voted to lay it on the table.

The defeat of Davis now appeared complete, but the struggle was not to be abandoned without another effort. On the following day, February 22, 1865, Mr. Wilson from the Committee on the Judiciary reported House Bill No. 740, to establish the supremacy of the Constitution in the insurrectionary States, with a substitute which provided that neither the people nor the legislature of any rebellious State should elect Representatives or Senators to Congress until the President had proclaimed that armed hostility to the United States within such State had ceased; nor until the people of such State had adopted a constitution not repugnant to the Constitution and laws of the United States; nor until by law of Congress such State had been declared entitled to representation in the Congress of the United States.

The authority for this bill he professed to find in the fourth section of Article I. of the Constitution, which reads as follows:

The Times, Places and Manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to the Places of choosing Senators.

Mr. Wilson was somewhat embarrassed in defending his bill. Dawes and Mallory exposed its weakness, and Representative Kernan, of New York, believed it would put it in the power of the Executive to say whether States should be represented in Congress. Fernando Wood observed that neither by that bill nor any other could either House of Congress be deprived of the right to pass upon the election, returns and qualifications of members.^[363]

Mr. Ashley at this point moved to amend the substitute offered by the Committee on the Judiciary by striking out all after the enacting clause and inserting the reconstruction bill that was tabled the day before. When a point of order was raised against its introduction the Speaker said that there was an important amendment; the word “white” having been inserted before the expression “male citizen,” thus restricting the class to be enrolled by the United States marshal. Mr. Kelley would amend it by striking out the word “white.” To this the Ohio member had no personal objection; indeed, he was abreast of Mr. Kelley in the matter of the suffrage: the only restriction he would impose being that of intelligence. Ashley appears, however, to have regarded himself as but the mouthpiece of his committee by whose authority he had only a few months before inserted a provision in his reconstruction bill to recognize the Louisiana and Arkansas governments, though he expressly declared on a subsequent occasion that he was opposed to such recognition.

By a vote of 80 to 65 the bill and its amendments was again laid on the table. Thirty-seven members abstained from voting; fourteen Republicans voted with the Democrats.^[364] This action was taken on the 22d of February, 1865; the session closed on the 4th of March following without any further attempt to pass the bill. Before the vote was taken Ashley stated his sentiments candidly. He wanted a record made on the question. “I do not expect,” said he, “to pass this bill now. At the next session, when a new Congress fresh from the people shall have assembled, with the nation and its Representatives far in advance of the present Congress, I hope to pass even a better bill. Sir, I know that our loyal people will never be guilty of the infamy of inviting the blacks to unite with them in fighting our battles, and after our triumph—a triumph which we never could have achieved but for their generous coÖperation and aid—deny those loyal blacks political rights while consenting that pardoned but unrepentant white rebels shall again be clothed with the entire political power of these States.”^[365] The desire to obtain negro suffrage explains the inconsistent course of Representative Ashley throughout these debates.

By a singular method of abridging history Mr. Blaine in his Twenty Years of Congress passes without observation the attempt to revive the “pocketed” bill, though it was during its discussion that there was for the first time unmistakably revealed the existence of a schism in the Republican party.