At the opening of its second session, December 5, 1864, the Speaker of the Thirty-eighth Congress laid before the House the credentials of W. D. Mann, T. M. Wells, Robert W. Taliaferro, A. P. Field and M. F. Bonzano, who claimed seats as Representatives from the State of Louisiana. A petition, signed by numerous citizens of that commonwealth, protesting against the admission of these claimants, was referred at the same time on motion of Henry Winter Davis to the Committee of Elections in connection with their credentials, which had already received the same direction. On the 13th this remonstrance was ordered to be printed.

Mr. Dawes on February 11 following reported that “M. F. Bonzano is entitled to a seat in this House as a Representative from the First Congressional District of Louisiana.” Six days later he presented a report and resolutions from his committee to the effect that Messrs. Field and Mann from the Second and Third Districts, respectively, were also entitled to seats. These reports with the accompanying resolutions were laid on the table and ordered to be printed.

No further action was taken on the question of their admission, but on March 3, 1865, Chairman Dawes by unanimous consent reported from the Committee of Elections a resolution that there be paid to each of the Louisiana claimants for compensation, expenses and mileage the sum of $2,000 and a like amount to T. M. Jacks, J. M. Johnson and A. A. C. Rogers, claimants from Arkansas.

The House, however, was not nearly so unanimous as its committee. Mr. Washburne remarked that Congress, by allowing at the last session the sum of $1,500 to one gentleman who claimed a seat, had fixed a sort of rule in such cases. That amount he would, probably, not object to paying to the present applicants; but if large payments, such as the compensation proposed by the resolution, were made to men coming to the Capitol it was feared they might not soon stop.

Representative Johnson, of Pennsylvania, believed that regardless of their right to seats they should be compensated because they had been encouraged to come; they appeared at the Capitol, he asserted, with an honest expectation of getting seats, and in an honest effort to restore popular government to their States.

Mr. Dawes declared that they came not as adventurers but under what they supposed was the policy of the General Government; hence the favorable recommendation of the committee. When he demanded the previous question, Representative Brandegee moved to lay the resolution on the table. Thaddeus Stevens asked to strike out the words “claimants for seats.” To this the Massachusetts member offered no objection. “I do not want to recognize the idea,” added Stevens, “that anybody on earth thinks that these men are entitled to seats.”^[399] This request, however, was denied, and the resolution was then adopted.

It was during their three months’ sojourn in Washington that one of the claimants, A. P. Field, committed an assault upon Representative William D. Kelley, of Pennsylvania, whom he regarded as the chief obstacle to their admission. This occurrence, which took place on February 20 at the Willard Hotel, was due, no doubt, to the artificial excitement of the Louisiana claimant, but was without influence upon the action of the House.^[400]

The General Assembly of Louisiana, as previously related, had chosen Charles Smith and R. King Cutler as United States Senators. With the Representatives-elect these gentlemen also appeared in Washington as claimants for seats. On December 7, two days after Congress assembled, the president pro tempore presented certain proceedings of the Louisiana Legislature declaratory of the election of Smith and Cutler. The papers, it was announced, would lie on the table unless otherwise ordered. Just as Henry Winter Davis had done in the House, Senator Wade offered a memorial from Louisiana citizens remonstrating against their admission, and also against the reception of any electoral vote from that State. On his motion it was agreed that all documents pertaining to the subject be printed. On the following day, December 8, the credentials as well as the remonstrance were referred to the Committee on the Judiciary.

Senator Trumbull on February 17 succeeding made a report from his committee, and offered a joint resolution relative to the credentials of Smith and Cutler. At the request of Charles Sumner the resolution was read at length and was as follows:

That the United States do hereby recognize the government of the State of Louisiana, inaugurated under and by the convention which assembled on the 6th day of April, A. D., 1864, at the city of New Orleans, as the legitimate government of the said State, and entitled to the guarantees and all other rights of a State government under the Constitution of the United States.^[401]

This resolution was limited to Louisiana because the facts, while in many respects similar, were not identical with those in the case of Arkansas. Besides, when the subject first came up in committee the Arkansas case had not been presented, though it arose before Louisiana had been disposed of. Trumbull believed it the intention of the committee to act immediately upon Arkansas when the case of Louisiana had been considered.^[402]

Sumner moved, February 23, to strike out all of the joint resolution except the enacting clause, and to substitute the following:

That neither the people nor the Legislature of any State, the people of which were declared to be in insurrection against the United States by the proclamation of the President, dated August 16, 1861, shall hereafter elect Representatives or Senators to the Congress of the United States until the President, by proclamation, shall have declared that armed hostility to the Government of the United States within such State has ceased; nor until the people of such State shall have adopted a constitution of government not repugnant to the Constitution and laws of the United States; nor until, by a law of Congress, such State shall have been declared to be entitled to representation in the Congress of the United States of America.^[403]

To this amendment Senator Trumbull objected that it would put it in the power of the President, by refusing to issue his proclamation, to keep a State out forever. Sumner’s substitute was promptly defeated by a vote of 29 to 8.^[404]

Of the members of the committee Powell alone opposed the resolution offered by Mr. Trumbull. The chief object in recognizing the government of Louisiana at that time, said the Kentucky Senator, was to allow that State to vote for the proposed amendment of the Constitution; to do that effectually those favorable to the resolution desired first to admit her Senators and Representatives; their admission would be the immediate effect of its passage.

A just conclusion on that subject could be reached only by information concerning the action of the President, of the military, and of the people of Louisiana in connection with the election. He opposed the loyal government because it was not formed by the people of that State; however, he did not want to be classed with those who thought Louisiana out of the Union. He believed that something approximating a majority of her people should indicate a willingness to return to the Union, and should participate in the movement for reorganization. The formation of the existing government, he asserted, was controlled and influenced by persons who were not citizens of Louisiana, and, he added, “It is a government formed really and virtually by the military power of the United States, using as instruments delegates who were elected under and by force of the bayonet.”

Before Senators could vote for the resolution, he continued, they must maintain the doctrine announced in the President’s proclamation of December 8, 1863, when he proposed that one tenth of the loyal voters in a State who would comply with the conditions therein prescribed, could form a State government; they must further maintain that the President, of his own volition, had power by decretal order to alter the constitution of a State; that the President had power to prescribe the qualifications both of voters and candidates for office in the States; finally they must believe that not only did the President possess these powers, but that Major-General Banks, in virtue of his office, possessed them in Louisiana.

Mr. Powell proposed to show that not only did Louisiana people not act of their own volition, but that “they were coerced to do what they did.” The constitution of that State, he asserted, was not made by the free suffrage of the people.

The creation of a State government is a purely civil act; the people must act without restraint. He had never heard any Senator say that the President could legitimately exercise the power assumed in his proclamation of December 8, 1863. Mr. Powell objected to the oath which was to be taken as a condition precedent to becoming a qualified elector in one of the revolted States, especially to that portion which promised support of all future proclamations of the President on the question of slavery. “Why, sir,” he exclaimed, “the President may proclaim that the negro shall be the master and the white man the slave; that the negro shall be the voter and the white man deprived of the right of suffrage; and yet this oath requires the man taking it to swear in advance that he would support even such a measure as that....

“At the very threshold, then,” he continued, “you repudiate the great principle of republican government that majorities shall rule. Here you propose to say not that majorities, but that less than one tenth shall rule.” It was intimated by the President that when they made a constitution it must not recognize African slavery. General Banks, carrying out the suggestion of the President, as well as what had been distinctly stated to General Steele in relation to Arkansas, took it upon himself to alter the constitution of Louisiana in that respect.

Whence does the President, it was asked, derive the power to prescribe qualifications for either electors or candidates? The proclamation, the Kentucky Senator asserted, was the basis of the whole proceeding, and those who voted for the resolution endorsed the proclamation.

Mr. Powell then reviewed the acts and read the proclamation of General Banks, whose conduct he denounced for presuming to declare certain parts of the Louisiana constitution no longer applicable to any class of persons in that State, and, therefore, inoperative and void.

He further objected that Banks had no authority to call the convention, for the constitution of Louisiana could be lawfully amended in only the mode pointed out by itself. The President’s proclamation, he added, would allow only those to vote who were qualified electors under the fundamental law of the State; those in the army and navy were not, but General Banks in his ukase of February 13, 1864, allowed them to participate in the election.

He also invited attention to the action of the Department Commander in designating provost marshals to take care that the polls were properly opened, in the absence of the sheriffs, and that suitable persons were appointed judges of election and so forth. Of the 11,414 votes he asserted that 808 were cast by soldiers who under the President’s proclamation were not legal voters. The fact, added Mr. Powell, that General Banks after the inauguration of Hahn as governor continued to issue proclamations shows that the civil was controlled by the military authority.

Passing on to a discussion of the statement of Banks before the Committee on the Judiciary that the military did not interfere in the election of February 22, Senator Powell quoted the following passages from a proclamation of the Department Commander:

Those who have exercised or are entitled to the rights of citizens of the United States will be required to participate in the measures necessary for the reËstablishment of civil government.... It is therefore a solemn duty resting upon all persons to assist in the earliest possible restoration of civil government. Let them participate in the measures suggested for this purpose. Opinion is free and candidates are numerous. Open hostility cannot be permitted. Indifference will be treated as a crime, and faction as treason.

“Talk to me,” exclaimed Mr. Powell, “of freedom of election under such military orders! Why, sir, there was but one free man, in my opinion, in all Louisiana at that time, and that was Major-General Banks; and I do not know that he was free, for he was serving his master at the White House.” The fundamental law there was martial law, which is but the will of the commander-in-chief, and under that law he could have beheaded them if they did not vote.

From beginning to end, he continued, the coercive finger of the military was engaged in the establishment of that government. Under the various proclamations even Unionists, men who had always been loyal, could not vote unless they took the oath required in the President’s proclamation. There was a large class of loyal men in Louisiana, he said, who refused to take that oath, for there had been presented to the Judiciary Committee an earnest protest signed by Thomas J. Durant and thirty-one others, influential Union men of that State, against the admission of Senators and Representatives and against counting its electoral vote. Those Senators, he added toward the conclusion of his remarks, who only a few days before opposed the counting of Louisiana’s electoral vote should now vote against the resolution acknowledging the government which appointed the Senators that are claiming seats.^[405]

Sumner and Davis referred to the resolution as a shadow. To this Mr. Doolittle replied that the vote of Louisiana might be necessary to secure the constitutional amendment, and that the new constitution of that State had struck the shackles from 90,000 slaves not reached by the Emancipation Proclamation.

Mr. Henderson, who favored the resolution, secured the floor, and observed, among other things, that Louisiana and Arkansas did not claim that they were yet strong enough to maintain their governments without the military aid of the nation; but neither was Maryland, West Virginia, Kentucky or Missouri; even Ohio, Indiana or Illinois, he said, could not without national assistance maintain their State organizations for sixty days against the Confederate armies.

“If we would have State governments,” said Mr. Henderson, “we must begin somewhere and at some time.” It was nonsensical, he argued to talk of restoring the Union, while keeping the loyal people in those States for all time to come under military domination. “We must declare the right in Congress,” he added, “to make and establish these governments for the States, or permit the President, under military law, to set them up, or we must recognize such as the loyal people may set up for themselves.” If, as Madison thought, Congress cannot make them, but can only guarantee such as already exist and are found to be republican in form, it must be left with the President, under his power as the head of the army, or to the people of the respective States. If left entirely with the President he might by military force impose upon the State a constitution against the wishes of both the loyal and disloyal. The Senator frankly admitted that neither House would be under any obligation to receive members sent from a State so constituted.

“But,” he went on to say, “if the people—the loyal masses, whether a majority or a minority of the whole voting population as formerly known—participated in its creation and acquiesce in the revival of the State government, the case though inaugurated by the President in my judgment would be very different. According to the theory of our Government, and its practice in all its past time in analogous cases, it would seem that whether Congress or the President inaugurated the proceeding, the constitution can only receive its validity and authority from the approval or acquiescence of the people to be affected; and that brings me to consider how the people in the seceded States shall revive their governments, and who are the legally qualified voters for that purpose in these States.

“At the threshold of the inquiry we are met with the objection that the States are now without officers of any kind legally elected, and that of themselves they are powerless to inaugurate any movement to set up a loyal government. It is said they have no officials to superintend the election, to count the votes, and grant certificates of election. However desirable these formalities may be, it has not been the uniform practice of Congress to require them.”

In the case of California, continued Mr. Henderson, the first election was called by the military order of a subordinate officer of the army, a delegate convention was chosen, a constitution was framed by that assembly and submitted to Congress. It was accepted as republican in form, and under it a State government was inaugurated that for fifteen years had been administered with the greatest success. The territory, he said, was wholly without civil authorities recognized by the United States. Congress had passed no enabling act, had prescribed no forms of proceeding, had failed to fix the qualifications of voters, had appointed no judges of election or other officers to count and certify the votes; yet the act, however informal, was ratified because the constitution on its face was unobjectionable in form, and it was believed that the people interested acquiesced in the government it established.

If the people of Rhode Island, added Mr. Henderson, had acquiesced in the government set up under Dorr, Congress and the Executive would have recognized it as legitimate. The Senator from Kentucky contended that although a majority of the legal and qualified voters of Louisiana should acquiesce in the new constitution Congress could not admit the State. In support of his view Mr. Henderson pointed to the State government of Missouri, which was the offspring of a movement purely revolutionary.

In the States whose representatives were seeking admission to Congress but one government asked recognition, and what if these organizations were of revolutionary origin?—the revolution was on the side of loyalty. Revolutionary governments had been accepted in time of peace—governments springing up in the midst of anarchy, without the sanctions of regularity; why, he asked, should they be rejected now when they were needed to protect the loyal inhabitants of the respective States and to aid the nation in vindicating its lost authority?

The assertion that on the face of these constitutions they were republican in form Senator Sumner denied. They did not follow out the principles of the Federal Constitution. This general answer was unsatisfactory, and Mr. Henderson said that the only question with him was how could he best get these States performing their legitimate functions in the Union again. If, as the Massachusetts Senator maintained, the act of secession took the States out, why could not the act of loyal men bring them back? If secession, he argued, was potent enough to take a State out, and that was mere revolution, why could not the loyal men perfect a revolution on the side of Government as well as rebels perfect a revolution on the side of secession, outrage and wrong?

The doctrine that secession took the States out of the Union, Sumner objected to have imputed to him. A subsequent remark indicated one ground of his opposition to the government of Louisiana. “If the loyal men, white and black, recognize it, then,” he declared, “it will be republican in form. Unless that is done, it will not be.”

When asked whether Congress could interfere with the right of suffrage in one of the States, Sumner evaded a candid reply, and concealed his meaning under these words: “It is the bounden duty of the United States by act of Congress to guarantee complete freedom to every citizen, and immunity from all oppression, and absolute equality before the law.” No government that does not guarantee these things, he added, can be recognized as republican in form according to the theory of the Federal Constitution, if the United States are called upon to enforce the constitutional guaranty.

Senator Henderson, interpreting this answer in the affirmative, observed that if under the guaranty clause the national Legislature could regulate the suffrage in the States, there was no limitation except the mere discretion of Congress. In support of this position he cited Madison in No. 43 of The Federalist, and of course had this part of the argument his own way, for the test of a republican form satisfactory to the Massachusetts Senator would leave few representatives in Congress.

Mr. Henderson denied that the admission of Senators and Representatives from these commonwealths would be a precedent for other States to demand recognition, even with the institution of slavery, thus bringing back the germs of a new rebellion against the Government; because in the constitutions presented involuntary servitude was abolished. With slavery remaining any restoration would be utterly useless. It was against union with the free States that the Southern people had taken up arms, and against restoration that they continued to use them. In that struggle they would employ every moral and material force, including the slave himself, stimulated by the boon of freedom, to resist the return of their States. Whatever the future might bring, it would fail to bring to the doors of Congress seeking admission a State constitution without a positive interdict of slavery.

To the objection that a majority of the people of these States were in rebellion and that to recognize the loyal minority would be to subvert the whole republican system Senator Henderson replied that if it were strictly true that a majority in a particular community “not only shall but must govern,” then a majority of legal voters in a State desiring to secede would have the undoubted right to do so. As no principle of the General Government authorized such action, it was not true, he said, that a majority of citizens in a State can govern themselves except in strict obedience to the Constitution of the United States. If a majority proved derelict and undertook to destroy the very Government of which the State is a part, it is right that the minority, who sustain the Government in its entirety, State and national, should institute government for their protection. He admitted that General Banks did a great many things for which there was no legal authority; but the question was whether this constitution was the will of the loyal men of Louisiana. If it was, their representatives had a right to seats on the floor of Congress.

In reply to Sumner, Senator Henderson said he favored the idea that the loyal men should govern a State, and he added, if that be the government of the few it results from the voluntary disloyalty of the many. They, of their own will, had relinquished the right to govern themselves under the Constitution, and as they had no right to govern themselves otherwise they could not govern at all. As to the oligarchy of skin, to which Sumner had referred, Henderson believed that the regulation of the suffrage was a question for the consideration of the States; if they conferred the franchise on the negro, he did not object.

As to the Louisiana constitution the question was whether it embodied the will of those legally entitled to exercise the functions of the State government. If the casting of illegal votes vitiated elections, but few elections, he asserted, would be valid.

If those States were admitted, they could immediately settle all questions of suffrage, and Congress would be relieved of the difficulty in future. He put clearly the difference of opinion prevailing among Senators on this subject when he stated that Mr. Powell objected to the new constitution of Louisiana because negro soldiers were permitted to vote, while Mr. Sumner opposed it because negroes at home did not vote. Concluding this part of his speech, he declared that the Federal Government by recognizing the old organization in Rhode Island against Dorr expressed its preference for a constitution of restricted suffrage.

Without naming his authority Henderson then read from a private letter the opinion of a gentleman whom he regarded as one of the ablest jurists in the United States.^[406] The correspondent said in part:

It must be observed that the civil society, and the political society so to speak, of a State need not necessarily do [be] the same. In other words the basis of representation may be the whole population, but the basis of suffrage be property, adult years, &c. The power to choose rulers is lodged in the voters, and they may not exceed one tenth of the population.... That portion of the population in which political power is lodged, determines who shall fill the respective offices, make laws, etc. Although the members of that society may have possessed every requisite therefor, yet the moment they ceased to be citizens of the United States they ceased to belong thereto.

That rule holds good with respect to every member, and the political society may, by death, disqualification of members, &c., be reduced to a very few persons. To state an extreme case, for illustration of the principle, Massachusetts formerly had a property qualification, and although her population entitled her to, say, thirteen Representatives in the United States House, her voters may not have exceeded fifty thousand. Suppose while that qualification remained, by some financial or other disaster, only one thousand or one hundred citizens retained the necessary income or property, would not the persons chosen to Congress by the few and only remaining voters be duly elected? So with regard to any other element of suffrage, as United States citizenship, if by its loss the voters are reduced to very few in number, do not those few constitute the political or voting power? As to the policy or impolicy of restricted suffrage, we are not now concerned, but are endeavoring to reach a constitutional and legal analysis of our governmental system.

But here is encountered the startling and practical difficulty, “Shall a few persons be permitted to govern a State, despite the wishes of its inhabitants, and without giving them all a voice? Is that republican?”

But it must be remembered that the few voters, say one seventh, or one tenth of the whole population, have always been intrusted with that power. Wisdom has fixed the basis of suffrage, without regard to relative numbers; that is, it has endeavored, under our popular system, to give the right or privilege to as many citizens as were supposed competent to exercise it intelligently. The rules prescribed as to age, sex, citizenship, &c., were deemed essential, right, and proper. Whether many or few come within the rules does not affect their validity.... If persons heretofore entitled to a vote chose to commit a felony, and incur thereby, as a penalty, the deprivation of their former right of suffrage, it is not supposed that the loss of such votes is anti-republican. If, then, a majority choose to perpetrate treason, or to expatriate themselves, or in any other way become disqualified, how does that action vitiate the rule? If they, after becoming disqualified, remain in the State, are they not bound to submit to its rulers and laws? If their rulers are chosen without their voice, is it not in consequence of their own voluntary action? Indeed, it often happens that the persons elected to office receive only a meager minority of the votes which could have been lawfully polled, yet that fact has no influence upon the legal result. So a person is often chosen by a minority of the votes actually cast, and is not the majority bound to submit?

The author of this letter appears to have been more familiar with the Constitution, as it was understood by its framers, than almost any member of either House, notwithstanding the presence in Congress of many distinguished statesmen. In the following eight propositions Mr. Henderson then gave a masterly summary of the Presidential plan of reconstruction:

1. I hold that the seceded States are still in the Union and cannot get out of it except through amendment of the Constitution permitting it.

2. The seceded States being still in the Union are entitled to claim all the rights accorded to other States.

3. That each State now in the Union has the right to stand upon the form of its constitution as it existed at the time of its admission. The people of such State may change its constitution, provided they retain a republican form of government; but neither the President nor Congress can reform, alter, or amend such constitution, nor prescribe any alteration or amendment as a condition of association with the other States of the Union. The General Government may properly lend its aid to enable the people to express their will; but any attempt to exercise power constitutionally reserved to the State, beyond what may be demanded by the immediate exigencies of war, will not tend to restore the Union, but rather to destroy our whole system of government.

4. When citizens of a State rebel and take up arms against the General Government they lose their rights as citizens of the United States, and they necessarily forfeit those rights and franchises in their respective States which depend on United States citizenship.

5. If a seceded State be still in the Union, entitled to recognition as a State, and a majority of the people have voluntarily withdrawn their allegiance, the loyal minority constitute the State and should govern it.

6. Congress should not reject the governments presented because of mere irregularity in the proceedings leading to their reorganization.

7. If Congress has no right to make and impose a constitution upon the people of any State; if its power extends no further than to guaranty preËxisting republican forms of government; if the State still exists, and the loyal men are entitled to exercise the functions of its government, it follows that the only questions to be examined here are, first, is the constitution the will of the loyal men qualified to act? and, second, is it republican in form?

8. The constitutions of Louisiana and Arkansas are thought to be republican in form, and it is admitted that the loyal men of those States respectively acquiesce in them. Hence the duty of Congress to recognize them, and the duty of each House to admit their representatives.^[407]

On February 25 debate on Trumbull’s resolution was resumed. At this point Mr. Sumner offered an amendment in substance as follows:

That it is the duty of the United States at the earliest practicable moment, consistent with the common defence and general welfare, to reËstablish by act of Congress republican governments in those States where loyal governments have been vacated by the existing rebellion, and thus, to the full extent of their power, fulfil the requirement of the Constitution, that “the United States shall guaranty to every State in this Union a republican form of government.”

Sec. 2. And be it further resolved, That this important duty is imposed by the Constitution in express terms on “the United States,” and not on individuals or classes of individuals, or on any military commander or executive officer, and cannot be intrusted to any such persons, acting, it may be, for an oligarchical class, and in disregard of large numbers of loyal people; but it must be performed by the United States, represented by the President and both Houses of Congress, acting for the whole people thereof.

Sec. 3. And be it further resolved, That, in determining the extent of this duty, and in the absence of any precise definition of the term “republican form of government,” we cannot err, if, when called to perform this guaranty under the Constitution, we adopt the self-evident truths of the Declaration of Independence as an authoritative rule, and insist that in every reËstablished State the consent of the governed shall be the only just foundation of government, and all men shall be equal before the law.

Not less important is the declaration in the fourth section that “in the performance of this guaranty, there can be no power under the Constitution to disfranchise loyal people, or to recognize any such disfranchisement, especially when it may hand over the loyal majority to the government of the disloyal minority; nor can there be any power under the Constitution to discriminate in favor of the rebellion by admitting to the electoral franchise rebels who have forfeited all rights and by excluding loyal persons who have never forfeited any right.” To allow the reËstablishment of any State without proper safeguards for the rights of all the citizens, and especially without making it impossible for rebels to trample upon the rights of those who are now fighting the battles of the Union, would be, said the succeeding section, for the United States to fail in duty under the Constitution.

More directly in opposition to the resolution reported by the chairman of the Judiciary Committee, however, was the seventh section, which declared “That a government founded on military power, or having its origin in military orders, cannot be a ‘republican form of government’ according to the requirement of the Constitution; and that its recognition will be contrary not only to the Constitution, but also to that essential principle of our Government which, in the language of Jefferson, establishes ‘the supremacy of the civil over the military authority.’”

The resolutions further asserted that a government founded on an oligarchical class, even if erroneously recognized as a “republican form of government,” could not sustain itself without national support; that such an organization was not at that moment competent to discharge the duties and execute the powers of a State, and that its recognition would tend to enfeeble the Union, to postpone the day of reconciliation and to endanger the national tranquillity. The ninth section renders clear one ground of Sumner’s hostility to the recognition of Louisiana. It asserts that

Considerations of expediency are in harmony with the requirements of the Constitution, and the dictates of justice and reason, especially now, when colored soldiers have shown their military value; that as their muskets are needed for the national defence against rebels in the field, so are their ballots yet more needed against the subtle enemies of the Union at home; and that without their support at the ballot-box the cause of human rights and of the Union itself will be in constant peril.^[408]

It was agreed on motion of Mr. Sumner to have his amendment printed.

Senator Howard, of Michigan, entered at this point into the debate. Much of what he said has already been related in the preceding narration of events leading up to the reinauguration of a loyal government in Louisiana. While admitting that the President’s plan had been undertaken for patriotic ends, he could not, he said, recognize in the Executive, without the subsidiary aid of an act of Congress, any right to assure a community, composed of voters numbering one tenth of the electors who participated in the Presidential contest of 1860, that it would be recognized as a legitimate government and entitled to the constitutional guaranty. This, he said, was a stretch of authority beyond any previous attempt, and he thought it time that Congress, in whom, he believed, rested solely the authority of readmitting and reconstructing the rebellious States, “should lay hold of this subject, assert their power, and provide by some statute of uniform application for the reconstruction, as it is called, and readmission of the insurrectionary States. That is their right and their duty; that is not the right, it is not the duty of the President.”

A State he defined negatively as not “the geographical superficies,” the land, on which population resides, and positively as “a moral person, a political community, possessing the faculty of political government.” The land, he said, is the theatre on which the political community moves and acts, but is endowed with no thought, no right, no duty. The thinking beings residing upon it constitute the State.^[409]

“A State of the Union or a State in the Union is, therefore, a people yielding obedience to the laws of the Union, that is, the acts of Congress and the national treaties.... A people who have a State government which is republican in form; a people who were one of the original thirteen States which formed the United States, or a people who have, since the adoption of the Constitution, been, in the language of that Constitution, ‘admitted by the Congress into this Union’ as States upon an equal footing with the original States; for this equality of rights and powers as States is plainly implied by the language and the manifest intention of the instrument; and no other people except such original State or admitted State; none but a State which permits the laws of the Union to have full scope and force within its limits; none but a State which sends Senators and Representatives to Congress friendly to the Government itself, willing to vote men and money to support and uphold it, who believe that a person forcibly resisting its authority is a traitor and deserving of death; none but a State which is willing to bring to trial, to convict such a traitor, and to punish him for his treason; none but a State whose population is capable of furnishing both the grand jury to indict and the traverse jury to convict such a traitor; none but a State whose population and whose authorities are in favor not only of permitting the laws of the United States relating to civil rights to be executed, but who are willing that the punitive code of the nation, the code of vengeance against its enemies, shall be carried out; none but such are States of the Union....

“To be in fact a State of the Union and in the Union, this will or consent of the people must be in harmony with the Constitution, and its movements subsidiary to it. It must regard the Constitution as its highest political good; its injunctions as the highest human law, its commands as the infallible and final measure of civil duty. In short, to be in the Union is to be actively and willingly coÖperating with other States in the performance of all those acts and things without which the Federal Government cannot act or move, cannot perform the functions required of it by the Constitution; it is to elect Senators and Representatives to the Congress of the United States; to permit the courts of the United States to be held within their limits, and its citizens to act as jurors and officers of the court; to permit the judgments and sentences of the court to be executed against its citizens; to permit the United States mail to be carried through the State and its contents distributed according to law; to permit the officers of the United States to collect the Federal revenue whether derived from foreign or domestic products; to permit the United States to manage and control their own property, whether consisting of forts, dockyards, arsenals, mints, or public lands; to make such elections of Senators and Representatives freely and as the means of maintaining itself as a State in the Union; and to permit all these things willingly and freely as rights belonging to the Federal Government with which neither the State government nor the people of the State have any right whatever to interfere. In short, to be a State in the Union is to use all those powers of the State which have a relation to the Federal Government in a manner friendly to that Government, friendly to its existence and continuance, in a manner promotive of the objects of that Government; and to permit without hindrance the exercise within the State of all the powers of the Federal Government.”

Though he declined to discuss the question whether a State by omitting to send Representatives and Senators to Congress would on that account cease to be a member of the Union, he gave it as his opinion that mere failure to be represented in Congress would not be followed by such consequences; but if a State not only refused to participate in Federal legislation but went farther, and as a political community made war upon the General Government, he declared that “it would be folly, madness, to say that the State was not our enemy in every sense in which that term can be employed to describe hostile relations between independent communities.... No one will pretend that such a community is in the Union in fact, for that would be to make an admission and in the same breath to contradict it. De facto, such a community, and, if it be bounded by State lines, such a State, is as completely out of the Union as is Canada or Mexico, from the moment it assumes the attitude of hostility until it is subdued and conquered by our arms, or until it voluntarily lays down its arms, ejects its hostile government and returns in fact to its once friendly sentiments and friendly relations to the Federal Government.”

“Loyalty,” continued Senator Howard, “thus becomes the final test in solving the question, what is a State in the Union? If a State by its overt acts has shown a want of this friendship, it is no longer in the Union de facto, and cannot be treated as if it were. The Supreme Court, acting upon the soundest principles of public law, have decided the waging of war by a State, although acting under an illegitimate and revolutionary government, renders her territory enemy’s territory, and the people there resident enemies of the United States, in the sense of the laws of war. And their decision could not have been different.”

The State, he argued further, was in fact, though wrongfully, out of the Union because its actual government was disloyal and treasonable. Out of it because unsubdued rebellion made it for the time being an independent though unrecognized nation on the earth’s surface, throwing off its allegiance to its paramount Government, and assuming by the sword to assert its separate nationality.

“But we are at war with the rebel States, and are told ... that the Government, so far at least as the rebel States are concerned, is under some peculiar constitutional restraint by which its hands are tied; that we are prohibited from ‘subjugating’ those States; that all we can do, under the Constitution, is to break up the military array of the rebels, disperse their armed bands, take away their arms, and do that very indefinite duty, restore order; that thereupon our task is ended and the rebel States have a constitutional right to come back into the Union and participate in the enactment of Federal laws and the conduct of the Federal Government. And we are menaced both in Congress and out with terrible retributions if we conquer or attempt to conquer, if we subjugate or attempt to subjugate, the rebel States. It is admitted by these our critics that in an international war ... we should have all the rights and powers of other independent nations, and might rightfully conquer our adversary, ... that we might make a complete conquest of his people and his territory....

“Now, it is lawful to wage such a foreign war, for the purpose of effectuating such a complete conquest, and of course lawful to attain it; ... lawful to substitute the political authority of the United States for that of a hostile foreign nation;” otherwise, he argued, the war could not be a successful one; hence in a war with a member of the Union the United States could substitute for the authority of such hostile commonwealth its own authority. There was no difference between the two cases. The former actual hostile government should be supplanted by the Federal Government. No other government had a right to give the law. Had the conquered rebel people that right? No; for that would be to allow them at once to expel their conquerors by a popular decree, and to deny the supremacy of the Federal Government which had subdued them. Had the old State government, he asked, the once loyal government, the right to govern the conquered people? No; there was no such government. It had long since ceased to exist. “In fact, there is no government there, none at all, which can for a moment be recognized or permitted by the United States, as the party now holding the actual mastery of the country; and like every other case where the possession of a country has arisen from the use of superior force, the will of the conqueror is the law—that is, the will of the United States expressed, in the absence of acts of Congress, by the Commander-in-Chief of the Army, but by the acts of Congress after Congress has spoken.

“... No one will deny that we have a right to subdue by arms and to reduce to quietude and submission a rebel State, that is, the people of a State in insurrection. But how absurd to make this concession, and at the same time to deny to us the constitutional power to occupy and hold the territory and its people in our military grasp—an occupation just as necessary to the end in view as the firing of cannon, the charging of cavalry, or any other operation in the field.

“... The true objects of the war ... are the suppression of the rebellion, the reËstablishment of the original Federal authority within the State, and the revival of the loyalty of the people of the State as the sole foundation and condition of all its civil rights as a State of the Union and of the right of its people to be treated as friends and not as enemies. Although the United States have the full and complete right which conquest gives, for the purpose of subjecting these domestic enemies to the exercise of the powers granted by the Constitution to Congress, and for the purpose of restoring to the body-politic its vital blood, loyalty to the Government, yet those purposes, those distinct ends, are without doubt limits beyond which we cannot go. We are restrained by the manifest objects for which the national Government was formed; but restrained by no particular clause of the Constitution. The instrument contains no such clause, and the limitation and restraint are of precisely the same nature as those which any other government is under in subduing an insurrection of its own subjects or citizens; the plain object of the war in both cases being the restoration of legitimate authority and the revival of allegiance. And until this revival of allegiance there must be the same need of military occupation and repression in both cases.”

After showing that the existence of the States is indispensable to that of the Federal Government, he proceeded, “it is not permissible by mere interpretation to clothe that Government with a power permanently to abolish the State government by way of punishing or suppressing the rebellion; or to convert the States into mere Territories of the United States, that is, public domain, to be divided up afterward by lines different from those of the States, and again admitted into the Union like matured Territories, with such new geographical limits as Congress may see fit to establish.”

Article IV., Section 3, Clause 1 of the Constitution the Senator regarded as an express prohibition to change the boundaries of any State once in the Union without its consent; “its consent in its capacity as a State, freely given by its own Legislature.” He believed that the Amnesty Proclamation of President Lincoln indicated that its author held a different opinion.

He rejected the idea that the rebellious States could be converted into Territories. This term, under our system, he added, “implies land never lying in any State, land ceded to the United States either by the old States, or purchased or conquered from foreign nations. The term never has been used to describe a State or any part of a State; and it implies not only the ownership of the soil and right of disposition, but full and complete political jurisdiction in the Federal Government over the people resident there....”

The objects of the conquest being as stated above, such forcible occupation was, he continued, in its very nature temporary and ought to cease the moment those objects were attained. This could not be done without establishing a government to preserve order, life and property—a provisional government, for that is the true historic name to be applied in all cases where an old government has been overthrown; a provisional government instituted by the conqueror, and to be continued just so long as Congress deemed it necessary to continue it for the attainment, and while attaining, those high objects. The occupancy, that is, the possession of all the reins of local government by the Federal authorities would be but temporary, provisional, fiduciary. It should necessarily last until the Federal Government had done its duty in the reËstablishment of order and the revival of loyalty. Until then it was, and should continue, the omnipotent sovereign of the State, holding actually by right of conquest, though for a particular purpose, and being itself necessarily the final judge to determine when its tutelary mission had been accomplished.

He avoided, he said, a discussion of the question whether a State can commit suicide, that is, extinguish its own being by waging a rebellious war against the Federal Government; instead of presenting any such abstract question of political dialectics, the case, he declared, merely presented the usual question which arose whenever and wherever there had been a forcible revolution. What, he inquired, was the duty of the paramount and lawful government in its treatment of insurgent communities? And was not the Government doing its whole duty in punishing the ringleaders in the revolt and restoring the old and constitutional Government over those districts?

The Government, Mr. Howard proceeded, must be the final judge of the duration of this military occupation. It was bound by the plain terms of the Constitution not only to suppress the insurrection, which was done the moment it had obtained firm possession of the whole of the hostile territory, but to guarantee to the conquered State a republican form of government. To perform this high and sacred trust, time of course was necessary; likewise a great variety of means and instrumentalities, “of all which the Government of the United States must, because it has no superior, no equal in the matter, be the sole and final judge. These means may embrace acts of provisional legislation, creating private rights and duties not previously in existence, but existing by law and of a permanent nature, paramount to all subsequent State legislation because arising under the supreme authority of the nation, as, for instance, the giving freedom to slaves; or they may undoubtedly embrace conditions to be performed by the subdued States on taking their places again in the Union, such as would be an ordinance forever abolishing slavery in the State....

“Yet while thus in our military power, awaiting our action, looking to their restoration, nothing is clearer than that the citizens of the rebel States, though owing obedience to all the laws of the United States, possess no political rights under the Constitution except protection. They are not free to act, because their freedom to act would, if indulged, lead them again to draw the sword against the United States.... They have no right to send members to this body or to the House of Representatives, much less to participate in the election of President and Vice-President. They are the ward-provinces of the United States, progressing toward the maturity of revived loyalty, but not yet entitled to exercise the elective franchise or to participate in the enactment of laws.

“If I am asked what I mean by the Government of the United States, and whether I mean that the President as Commander-in-Chief has the exclusive power to establish these provisional governments, I answer, I do not. He has the right to regulate military occupation until Congress has acted upon the subject; ... but the establishment of provisional governments, the quieting of the rebellious province and the reËstablishment of legitimate authority over it, pertains to the sovereign power, that is, the law-giving power of the nation. With us that power is lodged in Congress and not in the President; and in my opinion it is the business of Congress, and Congress alone, to establish and uphold these provisional governments.... We need not doubt that whatever we see fit to enact will be approved and carried out by the President. We cannot be more truly anxious than he to fix upon a stable, firm policy for restoring peace and union; but we ought not to shut our eyes to the necessities he will continually be under, to the almost irresistible importunities he will encounter, to provide some sort of civil government for the subdued States or districts; or to the consequences of leaving such mighty questions for him to decide. It is our plain duty to establish a uniform rule on the subject, so that all may be treated alike and the same remedy be applied with a paternal but firm and resolute hand to each delinquent State.”

He opposed for two reasons the “scheme” of allowing one tenth or any other minor part of the male citizens of a commonwealth to organize a government and assume to act as a State: first, “because as against the will of an actual majority the government of such a minority must necessarily come to a speedy end and thus invite a renewal of the civil war, in that locality at least; and second, because government by a minority is of evil example and inconsistent with the genius of American liberty.... As a Republican I would sooner hazard ten slaveholders’ rebellions than risk liberty in a government by a minority.” In this connection he assigned an additional motive for his attitude toward the resolution. The will of the friendly element, he said, could prevail only by military support, and such an organization, if intended as a civil government, was not republican in the sense of the Constitution. When such aid was withdrawn the majority, he asserted, would wreak vengeance on the weakened minority.

Concluding this part of his argument, he added: “The measure now before you proposes to acknowledge eight thousand citizens of Louisiana as a State, and to give them the rights and privileges exercised by a voting population of more than fifty thousand in 1860. Eight thousand are thus to give the law or assume to give it to forty-two thousand—to more than five times their number. This they may do so long as their decrees are sustained by the presence and consent of a competent military force; but we all know, both parties there know, the world knows, and, sir, posterity will know, that it is not the eight thousand who govern the State, but the fear of the bayonet, and the fear is inspired solely by the President of the United States, as Commander-in-Chief of the Army and Navy! Disguise it, or attempt to disguise it, as we may, to this complexion doth it come at last. Yes, sir, both the eight thousand and the forty-two thousand voters are governed not by themselves, but by the bayonet! And this is at present the only government in Louisiana. The object of the present measure is to continue this hybrid, unnatural government there. It allows the meager and almost contemptible proportion of less than one sixth of the voting population to govern the whole State, and to have the influence of the whole State in our legislation here, while we know that if the military forces were withdrawn that privileged one sixth part would be swept away like chaff before the hurricane breath of the enraged majority. Sir, such a government is the merest bubble, especially if unsustained by military power. This is too obvious to need further comment.”

“All this we might possibly endure,” continued Senator Howard, “were it not that the measure before us clothes this mockery of a government, this king of shreds and patches, this mistletoe State rÉgime that falls to the earth the moment it ceases to cling around the flag-staff of the national forces, with the high attribute of voting upon and determining questions of legislation, questions of war or peace, questions of prosecuting or ceasing to prosecute the present war, in this Hall and in the Hall of the House of Representatives. This measure introduces here Senators and Representatives whose immediate friends and relatives at home have deliberately aided and assisted to put to death myriads of Union soldiers from the North, and in swelling up that vast debt of more than two thousand million dollars which now rests upon the country. Think you that such Senators and Representatives, whose constituents have already been stripped of their property by the rebel government, and brought down to the depths of poverty; a community without the habits of labor among the intelligent classes; naked, hungry, despondent and sullen; think you that their Representatives would at the present time be safe depositories of the power to tax their constituents to pay this debt? Is it not, on the other hand, the part of prudence to guard against the contingency of having that debt repudiated by such legislators and the still more disgraceful contingency of being, by their votes, aided by a Northern party, finally compelled to pay the rebel debt of $4,000,000,000? And tell me, what right has Louisiana, the majority of whose population is to-day, wherever they are, hostile to this Government and anxious for its overthrow; what right has she, upon any recognized principle of public law or justice, to be represented in Congress?”

The treatment accorded Louisiana would, he feared, be a precedent for the ten remaining States. There would be the expense of holding each for a time in military occupation to bolster up their State governments. He preferred for Louisiana and the other insurgent States a provisional establishment for regulating domestic affairs, but without representation in Congress until the mass of their people plainly perceived their error in attempting to overthrow the General Government.

Congress should, he thought, take the subject of readmission into their own hands. It was for them and not for the President to execute the important guaranty to each State of a republican form of government, and that duty became more and more urgent as the Federal armies swept on from victory to victory. In making good that guaranty the great indispensable necessity, he declared, was loyalty.^[410]

Mr. Howard was followed immediately by Reverdy Johnson, of Maryland, who to the great surprise of his fellow-Democrats argued in favor of the resolution. His remarks were introduced by a concise statement of the chief political events occurring in Louisiana between the capture of New Orleans and the ratification, in September, 1864, of the new constitution. Concluding this part of his speech he said:

“These, sir, are the facts. The Committee on the Judiciary—and in the conclusion to which they came I concurred—were of opinion that under the circumstances in which the State was at the period when these proceedings were had, she could not be recognized as a State of the United States under that constitution adopted in 1864, except by an act of Congress. The committee were of opinion that it was not in the power of the Executive under the circumstances to bring the State back under that constitution. They were of opinion, however, that it was competent for Congress to do so, and the only question before the Committee was, whether, under the circumstances under which the State was at the time, it was not the duty of Congress to bring the State back so as to have her represented in the Union.”

His objection to the conclusion of the committee was that the proceedings which led to the adoption of the constitution were instituted at the instance and under the power of the Federal military authorities. The precedent, he admitted, was really a bad one, and the proposition upon which the committee were called to decide was whether, if they were satisfied that the number of votes said to have been cast were in fact cast, and the persons voting were loyal citizens, they should be denied the privilege of being represented in the councils of the nation and subjected to a continuance of military power. Mr. Johnson added: “My impression is that, no matter how the proceedings were instituted, whether it was by the military authority, or by the coming together of the people of the State, if in point of fact the people of the State did act voluntarily and were competent to act under the original constitution, and were authorized to act by being loyal at the time they did act, it is the duty of the government of the United States to receive them back.

“Another objection was that, however true it might be that it would be in the power of all the voters of the State to adopt a constitution for themselves, or to claim the right of coming back to the Union under the constitution existing at the time of the rebellion, it was not true that it was in the power of fourteen [eleven] thousand, four hundred and fourteen voters, when the entire voting population of the State was fifty-one thousand, to take that course. As it seemed to me then, and seems now, there is no evidence to show that a single citizen of Louisiana was excluded from the right of voting.”

It was not so certain, he argued further, that the eleven thousand voters who participated were not a large majority of the actual electors in Louisiana, for the war engaged the greater part of the voting population, and nine tenths of those who entered the Confederate service had forfeited their lives upon the battlefield; of those above or below the military age many had gone elsewhere, or if they remained in the State it was as disloyal citizens.

It was not pretended, he said, in discussing the relation of the loyal minority to the General Government, that by the act of secession they ceased to be citizens of the United States. Their fidelity to the Union entitled them to Federal protection. If loyal, they had forfeited no rights belonging to them before the commencement of the rebellion. No Federal law had been violated, no constitutional obligation evaded by them. They could not ask admission into the Union, because to speak such a desire was to subject themselves to punishment; when the protection of the United States was afforded them and they could once more declare their sentiments without hazard they met at their several election polls, organized their government under existing law, and then, wishing to change it, met in convention and adopted the constitution which had been submitted to the Senate. “Why,” inquired Mr. Johnson, “should we not receive it?” The right of eleven thousand citizens to change their constitution was not denied, but their action was questioned because there were others, then in arms against the Government of the United States, who did not join them in asserting it. In examining the question who were to exercise the authority of the State, he argued: “Now, if it be true that the secession ordinance had no operation to carry the State out, and that I understand even the Senator from Massachusetts [Mr. Sumner] admitted last night; if it be true that the State is in the Union notwithstanding the ordinance, then the only question to be considered is, who are the people of Louisiana that are to exercise the sovereign authority belonging to the State of Louisiana? Are they the loyal or the disloyal? There can be but one answer to that inquiry. It must only be the loyal.”

Senator Howard admitted, continued Mr. Johnson, that it is not in the power of the United States to change the territorial limits of the States that had gone out, because the Constitution prohibits it. If he had thought for a moment he would have seen that the Constitution equally prohibits any interference on the part of the General Government with the exercise of the right of suffrage in a State. He then combated at some length the intimation of Senators Howard and Sumner that any power without a State had a right to prescribe qualifications for the exercise of the suffrage.

Mr. Powell, too, concurred in this view and asked by what authority General Banks and the President undertook to prescribe the qualifications of voters in Louisiana. The Maryland Senator replied that this question had been anticipated. The eleven thousand four hundred and fourteen voters, according to the proof before the Senate, were all loyal men and entitled to vote by the original constitution of Louisiana, no matter how they were brought together. If, coming together, they did an act which they would have been authorized to do if they had come together voluntarily they ought to be received.

Powell then inquired, what right had the Senate to presume that there may not have been twelve thousand loyal voters in Louisiana who were deprived of the right of suffrage because of this order of General Banks? As the Kentucky Senator understood it, no man could vote “unless he would go forward and take the oath prescribed by the President and swear to support and sustain all proclamations in regard to African slavery already issued and all that might afterward be issued.” Mr. Johnson acknowledged this difficulty and admitted that he had always felt it; but they had the same difficulty, he asserted, in his own State, and a much greater one; he would be sorry to think Maryland was not in the Union. “Maryland is in the Union,” said Senator Powell. “The constitution,” observed Johnson in reply, “which now makes her a State in the Union was adopted the other day. I mean the one which governs her. She has manumitted her slaves by force of that constitution. No man in Maryland seriously contests the obligation of that constitution in that particular or in any other. But it was adopted, in fact, by the exclusion of a good many men who were entitled to vote.”

Mr. Johnson at this point became engaged in an argument, not wholly relevant, with Sumner in which he gained some advantage over the Massachusetts Senator. As a specimen of the latter’s parliamentary tactics at this time it may not be irrelevant to reproduce a passage from the Congressional Globe.

Mr. Sumner. Allow me to ask the Senator [Johnson] whether, in his opinion, the Ordinance governing the Northwest Territory, prohibiting slavery everywhere throughout that Territory, and which was declared to be a perpetual compact, could be set aside by any one of the States in the Territory now.

Mr. Johnson. I certainly think they can, except so far as rights are vested.

Mr. Sumner. The Senator, then, thinks Ohio can enslave a fellow-man?

Mr. Johnson. Just as much as Massachusetts can.

Mr. Sumner. Massachusetts cannot.

Mr. Johnson. Why not?

Mr. Sumner. Massachusetts cannot do an act of injustice.

Mr. Johnson. Oh, indeed! I did not know that. [Laughter.]^[411]

Notwithstanding this claim for his native State Sumner admitted a moment later that Massachusetts had united in the Convention of 1787 with South Carolina to deny to Congress authority to prohibit the slave trade for twenty years, and he confessed that such action was unjust. His inconsistency was still further exposed by Senator Henderson, who called attention to the fact that the educational qualification imposed by the Massachusetts constitution would exclude from the franchise almost every negro in Louisiana if the provisions were applicable in the latter State.^[412]

After this colloquy, not uninteresting to the student of constitutional history, the Maryland Senator resumed his remarks:

“One word more, sir, and I have done. If Congress passes this resolution, and the State is admitted, no court will hereafter be able to decide that she is not a State in the Union, and no court therefore can call in question the validity or effect of any provision to be found in her constitution. One of the provisions of this constitution is that all the slaves of Louisiana are emancipated. Pass this resolution, admit the State, and that provision is effectual at once.”^[413]

Mr. Sumner, having in mind the fundamental condition imposed by Congress upon the admission of Missouri, offered the following amendment of the resolution from the Committee on the Judiciary:

Provided, That this shall not take effect except upon the fundamental condition that within the State there shall be no denial of the electoral franchise, or of any other rights on account of color or race, but all persons shall be equal before the law. And the Legislature of the State, by a solemn public act, shall declare the assent of the State to this fundamental condition, and shall transmit to the President of the United States an authentic copy of such assent whenever the same shall be adopted, upon the receipt whereof he shall, by proclamation, announce the fact; whereupon, without any further proceedings on the part of Congress, this joint resolution shall take effect.^[414]

Though Senator Clark favored the principle of Sumner’s amendment, he opposed it, as it stood, because it affected a resolution which proposed “to recognize the government in the State of Louisiana,” which in his judgment was still a State in the Union, “having its constitution overthrown, but desiring and attempting to establish a new” one; and he added, “I hold that we have no power to amend that constitution; and that is the reason why I shall be obliged to vote against it here.”

He spoke for the adoption of Trumbull’s resolution and, in doing so, traveled some of the ground gone over by Henderson. The government of Louisiana, Mr. Clark believed, belonged to the Union people. He was not aware that any definite number of persons was required to constitute a State, nor did he understand how the majority by going into rebellion could take away the rights of the loyal minority.

The guaranty of a republican form of government was made, he asserted, to meet precisely such a case as had arisen in Louisiana. In this view it became the duty of Congress to protect the government established by the minority.^[415]

Mr. Pomeroy, speaking to the principle of Sumner’s amendment, declared that he would vote against all measures that looked like Congressional interference with the right to vote in the States. Saulsbury interrupted him to inquire what he would have done had the President, or his Secretary of War, sent armed soldiers to the polls and imposed a test upon voters as was done in Delaware, where Democrats were chased into swamps and compelled in the night time to lie out in the snow. Pomeroy’s only reply to this was to relate his own experience under Democratic supremacy in the early days of Kansas. He resumed his remarks on Louisiana, but these had been anticipated by the speakers who preceded him. In conclusion he asserted that there were two reasons for recognizing Arkansas where there was but one in favor of Louisiana.^[416]

The Delaware Senator did not fail to call attention to Pomeroy’s evasion, and said he was glad to observe a change in the spirit of some of his Republican friends. “I think,” he said, “they begin to scent the danger in the distance; that they begin to see that if a Government of law is to be destroyed, and power is to be concentrated in Executive hands, or in the hands of Executive agents, there is an end of liberty in this country. I hail the dawn, therefore, of a better day.”^[417]

Mr. Henderson again entered into the discussion, and in the course of his remarks drew from Senator Sumner this remarkable statement concerning Louisiana: “It is in and it is not. [Laughter.] The territory is in; but as yet there is no State government that is in.” In this discussion Sumner asserted also that when the bill of his friend Senator Wade was before Congress no one questioned its constitutionality though it proposed to interfere in the suffrage and to impose a condition upon States at the time of their reconstruction. Pomeroy dissented from the doctrine that Congress could reconstruct the insurgent States, and maintained that the only question then was whether they would recognize what the people of Louisiana had done.

Reverdy Johnson pointed out to Sumner the great increase of representation in Congress which the South would acquire by an extension of the suffrage to negroes. The three fifths provision, he said, would be done away with, and he made the further observation that for years to come the entire colored vote of that section would be in the hands of a few white men. He urged recognition of both Louisiana and Arkansas, so that the constitutional amendment would become binding, for unless ratified by three fourths of all the States it would be open to doubt.

The session was drawing rapidly toward its close; it was late in the evening of February 25, and the resolution under discussion was too important to be passed without due consideration. These circumstances offered Mr. Wade, who vehemently opposed the measure, a decent pretext for demanding the “yeas” and “nays” on his motion to postpone the subject till the first Monday of December following, 1865.

Before a vote was reached on this motion, however, Powell spoke again at considerable length. In addition to his former arguments, many of which were repeated, he said that “all the loyal Union men in the State of Louisiana who refused, like supple menials and slaves, to crouch beneath the iron military power of General Banks, and take that oath were excluded from voting,” and he added, “I believe to-day there are more men of that description in Louisiana than voted to ratify this constitution.”

When asked by Mr. Henderson whether he had heard of any objection to it on the part of the loyal men of Louisiana, Powell answered that Thomas J. Durant and thirty-one others, distinguished, leading, loyal men of that State, had made earnest and powerful protest against it, and remonstrated against the admission to Congress of Senators and Representatives from Louisiana. They were also opposed to counting her electoral vote. Mr. Durant, he believed, was the first district-attorney appointed in Louisiana by the present Executive. Henderson insinuated by an inquiry that Durant was himself a candidate for office at that election and took the oath prescribed. Powell not being informed on these points, the matter was left in doubt.

The Kentucky Senator took this opportunity to characterize the manner of General Banks in his statement before the Judiciary Committee as that of a “swift witness, to make a case that he thought would cause Louisiana to be admitted.” He also called upon some advocate of the resolution to explain a support of the present measure after voting a few days before for the resolution declaring that the electoral vote of Louisiana should not be counted. If Louisiana was then a legitimate government, why, he asked, was she not entitled to cast her electoral vote? He did not then believe it a legitimate government and so opposed the counting of her electoral vote; but the Senator from Maryland [Mr. Johnson] and the Senator from Missouri [Mr. Henderson], who then voted with him, now supported the resolution.^[418]

Wade’s motion to postpone further consideration of the joint resolution till the first Monday of December was defeated by a vote of 17 to 12.^[419]

In the course of the discussions to postpone Sumner said that he would regard its passage as a national calamity. It would be the political Bull Run of that Administration, sacrificing, as it would, a great cause and the great destinies of this Republic. When Trumbull taxed him with intent to postpone discussion by dilatory motions the Massachusetts Senator admitted his opposition and declared that to defeat the measure he would employ any weapon in the arsenal of parliamentary warfare.

The friends of the Administration endeavored to press their adversaries to take final action on the resolution. The earnestness of the two factions provoked rather sharp censure of Sumner and the few Republicans who acted with him and were attempting by dilatory motions to fatigue the Senate into a postponement. Doolittle was especially severe on them, and particularly on Sumner, who replied with much asperity. He was supported by Howard and Chandler, while Trumbull, Foster and Doolittle undertook a defence of the resolution and its advocates. This wrangling appears to have delighted the Democratic members. Mr. Hendricks, indeed, made no attempt to conceal his satisfaction.

“The discordant elements of the Republican party are exhibiting themselves here,” said the Indiana Senator, “and I venture the prophecy that a like exhibition will be witnessed over the country within a very few years. But four years ago, at the Chicago Convention, when Mr. Lincoln was nominated for the Presidency a solemn pledge was made to the people of this country that that party, when it came into power, would not undertake to interfere with the institutions of the States. As soon as the disturbed condition of the country gave the pretext for it, the undertaking was commenced; and now, when, in the judgment of some, it has been accomplished, there comes up the grave question, what is to be done, and what is to be the political condition of the four million negroes when they are set free? And upon that question the real strife of to-night has been witnessed. That is the subject and it need not be disguised. It is growing out of the discordant elements of the party that now governs the country.”^[420]

Trumbull, in reply to an inquiry of Senator Wade, said that he had voted against receiving the electoral vote of Louisiana because it had not been recognized. Now he proposed to put it in a condition where it could cast electoral votes, and do all other acts belonging to a State.

To this Wade replied that “If the President of the United States, operating through his major-generals, can initiate a State government, and can bring it here and force us, compel us, to receive as associates on this floor these mere mockeries, these men of straw who represent nobody, your Republic is at an end.

“Sir, I have heard a great deal about this pretended election in Louisiana that did not come from Major-General Banks, and I pronounce the proceeding a mockery. It is not pretended that there could be drummed up from the riffraff of New Orleans and sent into the vicinity under the mandate of a Major-General more than about six thousand votes, where over fifty thousand were formerly polled.

“Talk not to me of your ten per cent. principle. A more absurd, monarchical, and anti-American principle was never announced on God’s earth——“^[421]

At this point Senator Sherman, of Ohio, interposed to obtain consideration for a revenue measure which he had in charge, whereupon his colleague changed somewhat the declamation against the resolution to a denunciation of its advocates, especially Trumbull, upon whom he retorted the charge of retarding legitimate business. Howard resented the charge of radical factiousness and denounced Trumbull with considerable warmth. Sherman suggested that enough had been said on both sides, and in the lighter skirmishing of the breathing-spell which followed, Mr. Sprague, of Rhode Island, hitherto a silent spectator of these exciting scenes, declared that he held in his possession a paper indicating the names of the members of the Louisiana Legislature, and it showed that twenty-five, or twenty-seven or thirty of those gentlemen who constituted that assembly were officeholders of the Federal Government, or the government of the State, which, he said, was the same thing.^[422]

While Sherman’s measure and Trumbull’s resolution were competing for priority of consideration Sumner remarked that during the preceding summer, 1864, he had met a distinguished gentleman just returned from Louisiana; he had been present at some of the sittings of the convention, having been in New Orleans in discharge of important public duties. This gentleman, added Sumner, said compendiously that the convention was “nothing but a stupendous hoax.”

When Reverdy Johnson inquired the name of Sumner’s informant, Senator Grimes replied that he could furnish a large number of names of persons present in New Orleans when the convention was held, and added: “If the Senate will give a committee I will undertake to prove and I will prove that the voters whose votes were polled in the outlying parishes at Thibodeaux and Placquemines, and other places, were carried in army transports to those places where they polled the votes, being discharged soldiers and persons belonging in New Orleans, and were brought back to New Orleans, and were not residents of the places where they purported to vote.”^[423]

Sumner, immediately after the uncontroverted statement of Mr. Grimes, added, with more energy than elegance: “The pretended State government in Louisiana is utterly indefensible whether you look at its origin or its character. To describe it, I must use plain language. It is a mere seven-months’ abortion, begotten by the bayonet in criminal conjunction with the spirit of caste, and born before its time, rickety, unformed, unfinished—whose continued existence will be a burden, a reproach, and a wrong. That is the whole case; and yet the Senator from Illinois now presses it upon the Senate at this moment to the exclusion of the important public business of the country.”^[424]

The urgency of the army and navy appropriation bills prevented for the time further consideration of the Louisiana question. The subject, however, was again brought before the Senate on March 2, 1865, by Mr. Doolittle, who had received and had been requested to file with the secretary of the Senate a certificate, under seal of the State of Louisiana, of the election of Michael Hahn as a Senator of the United States from the State of Louisiana for six years from March 4, 1865. Mr. Davis, of Kentucky, opposed its reception. Doolittle’s motion to have it laid on the table and filed was, however, agreed to.

Only two days of the session remained; in the temper of the Senate it was impossible that the resolution could pass at that time, and the House had not yet taken it up for discussion. In these circumstances the measure was abandoned, though very reluctantly, by its champions.