If the offices were vacated, the machine of government could not work. And now the practical question is, how this machine shall be again put in motion. Obviously, not by any power within, but by some power without.

It may be said that the new State organization is authorized by the President’s proclamation of amnesty, and that the claimant’s case stands good according to the promises of this exceptional paper. A glance is enough to dispel this pretension. True it is that the President put forward a plan for reorganizing loyal State governments in the Rebel territory, and he proffered a guaranty to these communities against domestic violence and Rebel invasion; but he neither proposed nor promised any representation in Congress or in the Electoral College. Nor would such a proposition or promise by him have possessed the slightest validity; because, by the Constitution, “each House is to be the judge of the elections, returns, and qualifications of its own members.” This provision is inconsistent with any prerogative of the President over this question, even if such prerogative were not controlled by that other provision which reserves to Congress the power to admit new States into the Union.

The Proclamation declared, that, whenever, in any of the States of Arkansas, Texas, Louisiana, Mississippi, Tennessee, Alabama, Georgia, Florida, South Carolina, and North Carolina, a number of persons, not less than one tenth in number of the votes cast in such State at the Presidential election of 1860, each having taken the particular oath prescribed by the Proclamation, and not having since violated it, and being a qualified voter by the election law of the State existing immediately before its secession, and excluding all others, should reëstablish a State government which should be republican, and in no wise contravening the Proclamation oath, it should be recognized as the true government of the State, which should receive thereunder the benefits of the constitutional provision that “the United States shall guaranty to every State in this Union a republican form of government.” Subsequently, in the same paper, the President declares “that whether members sent to Congress from any State shall be admitted to seats constitutionally rests exclusively with the respective Houses, and not to any extent with the Executive.” Nothing is said on the participation of such reorganized State in the approaching Presidential election; and the question seems left open for the judgment of Congress, to which it obviously belongs, to be settled by joint action.

It is plain, therefore, that the reorganization contemplated by the President was in nature provisional. It was not complete or permanent, but evidently looked to the action of the legislative power to determine representation, whether in Congress or in the Electoral College. Loyal governments might be established in the manner indicated for the conservation of local order, and these would be recognized and upheld provisionally by the military power. Considered from this point of view, and in the absence of Congressional action, the President’s plan of reconstruction was, to a certain extent, proper, if not necessary, and very little obnoxious to objections sometimes brought against it. A handful of persons keeping their loyalty might justly look to the military power for support against a hostile majority. Such a handful might be allowed to set up a local government for the management of local affairs, and to assist the National Government in the work of restoration. All this is natural. But the limitation is clear. Admitting it right to authorize the establishment of a local government for the benefit of a handful of loyal persons in a Rebel State, it does not by any means follow that such local government can be entitled to representation in the National Government as a loyal unit, on an equality with the loyal States of the Union. The two questions are entirely different, and the latter was wisely left untouched by the Proclamation.

Besides, the power of the President to institute this government is only as commander-in-chief of the army. It is therefore military in character. But what proceeds out of this power is, from the nature of the case, provisional or temporary, until it has received the sanction of Congress. To a certain extent, and from the necessity of the hour, military governments may be constituted by the President; but permanent civil governments, with——

Mr. Sumner. As the Senator from Vermont well suggests, “to last beyond the war,” with right of representation in Congress and in the Electoral College, cannot be constituted by the President. Such a power would be open to infinite abuse, and in the hands of an ambitious President might be employed for selfish purposes. The national safety, in harmony with republican principles, requires that it should be exercised by Congress, which must take the lead in calling the new government into being.

Against these conclusions there can be no argument founded on principle. But it may be said that the admission of Senators from Virginia constitutes a precedent. This is a mistake. The Virginia case is a precedent for nothing, unless it be to make us more careful for the future. It arose at the beginning of the troubles, before the relations of the Rebel States had become fixed by pertinacious war, and was little considered at the time. But, beyond all, it had this peculiarity,—that a large section, geographically, of Virginia, had, in fact, declined to recognize the pretension of secession, and promptly constituted a loyal government without military intervention, so that practically it had never been part of the Rebel Government. The circumstances were so exceptional, that this case cannot be cited to determine our conduct toward a State which in all its parts, throughout its whole jurisdiction, accepted the pretension of secession, and maintained it by arms. Such a State is, beyond all question, a Rebel State, with no title to a place in Congress or in the Electoral College, until readmitted to its ancient rights by a vote in both Houses of Congress.

The readmission of a Rebel State to representation is not less important than its original admission into the Union. And when it is considered that what is done for one such State will be a precedent for all, its importance is multiplied by the number of Rebel States; and this again is augmented infinitely by the disturbed condition of affairs, and the supreme duty to take every precaution for the restoration of permanent tranquillity. It is not enough, if we comply with certain forms, or constitute a State in name only. Much more must be done, and all this must be placed under fixed and irreversible guaranties. Vain is victory on the battle-field, if these guaranties are not obtained. To make these possible, our armies are now engaged in the deadly shock. That the future at least may be secure, the present is given over to blood and slaughter, to graves and epitaphs. And here is the difference between your responsibilities and those of the soldier. The latter sees only the present; but you must see the future also. The soldier meets the enemy face to face; the statesman, by wise precautions, provides that the enemy, once conquered, shall never rise again. Vain is the work of the soldier, if not consummated and crowned by the wisdom of the statesman.

For years Slavery has been claiming guaranties in States and Territories, and these chambers have echoed to the hoarse, inhuman cry. At last another voice begins to prevail, ascending from basement to cupola, filling chamber and dome with diviner echo: it is the voice of Freedom claiming guaranties. In the absence of any constitutional prohibition of Slavery, it is evident that these guaranties can be obtained only under sanction of Congress in its legislative capacity. And here we are brought again to the question of representation; for as it is clear that representation cannot be conceded, until the guaranties for Freedom have been secured, so it follows, representation can be obtained only under the sanction of Congress in its legislative capacity.

That Congress in its legislative capacity must determine this question is sustained by the necessity of the case, by reason, by authority, and by the President’s Proclamation.

1. I have already shown that guaranties for Freedom are a condition precedent to representation; so that, by the necessity of the case, the latter must be determined by the joint action of both Houses of Congress. Such is one form in which this necessity appears. But there is another.

Congress must have jurisdiction over every portion of the United States where there is no other government; but there can be no other government in the Rebel States; so that the words of Chief Justice Marshall are as applicable to a State without a loyal State government as they were originally to a Territory:—

The three things here affirmed of a Territory may all be affirmed of a Rebel State.

First. It has not the means of self-government.

Secondly. It is not within the jurisdiction of any particular State.

Thirdly. It is within the power and jurisdiction of the United States.

From these again ensues the necessity of Congressional jurisdiction.

2. It would be unreasonable, if not absurd, for each Chamber to determine the question of representation for itself. Suppose, for instance, the Senate admit claimants from Arkansas, and the House reject them. Then we should witness the anomaly of a State admitted to one Chamber and excluded from the other. This would be semi-admission into the Union. Part would be in, and part out. The Senators and Representatives of the same State would be compelled to separate, as, in Grecian mythology, one of the memorable twins, Castor and Pollux, was translated to Olympus, and the other was left upon earth. The Constitution does not contemplate the repetition of any such fable. Arkansas must stay away, until she can be received in both Houses, and be recognized as a unit, not as a fraction; but no power short of Congress can assure this equal reception in both Houses.

3. Authority is in harmony with reason. The question seems to have been anticipated by the opinion of the Supreme Court of the United States, as pronounced by Chief Justice Taney in the case of Luther v. Borden. Here are the words:—

According to these positive words, “it rests with Congress to decide what government is the established one in a State.” But Congress can decide only through joint action.

4. The Constitution, also, by positive text, seems to place the question beyond doubt. There are express words, as we have already seen, declaring that “the United States shall guaranty to every State in the Union a republican form of government.” If these words stood alone, the case would be clear; but it becomes clearer still, when we revert to the other clause, by which it is provided that “the Congress shall have power to make all laws which shall be necessary and proper for carrying into execution all powers vested by this Constitution in the Government of the United States.” Now, since the guaranty is vested in the Government of the United States, it follows that Congress has the power for carrying it into execution. In Arkansas a republican government has been overthrown by rebellion. Congress must see that such government is restored; and to this end it has all needful power. Congress, and not the President, must decide when the restoration has taken place.

5. There is also the President’s Proclamation, which, by its very terms, necessarily implies the action of Congress. We have, first, the positive declaration that “whether members sent to Congress from any State shall be admitted to seats constitutionally rests exclusively with the respective Houses, and not to any extent with the Executive.” But the language of the Proclamation and of the accompanying message plainly assumes that the Rebel States have lost their original character as States of the Union. Thus in one place the President says that “the loyal State governments of several States have for a long time been subverted.” But if subverted, they no longer exist. In another place he proposes to “reinaugurate loyal State governments.” But a proposition to reinaugurate implies a new start. In another place he proposes to “reëstablish a State government which shall be republican.” But we do not reëstablish a government continuing to exist. In another place he proposes to “set up” a State government in the mode prescribed. But whatever requires to be set up is evidently down. In another place he considers how to guaranty and protect “a revived State government.” But we revive only what is dead, or, at least, faint. There is still another place, where the President evidently looks to the possibility of a change of name, boundary, subdivisions, constitution, and general code of laws in the restored State. These are his identical words: “And it is suggested as not improper, that, in constructing a loyal State government in any State, the name of the State, the boundary, the subdivisions, the constitution, and the general code of laws, as before the Rebellion, be maintained.” Thus the President does not insist that even the name and boundary of a State shall be preserved. He contents himself with suggesting that it will not be “improper” to preserve them “in constructing a loyal State government.” Of course this suggestion of what is not improper implies necessarily that in his opinion even these great changes are within the discretion of the revived community.

I have called especial attention to the language of the President, because it constantly assumes, in a succession of phrases, that the Rebel States are in an abnormal condition, from which they are to be recovered or revived; and since such recovery or revival can be consummated only by action of Congress, it is reasonable to infer that such was his expectation. At all events, the Proclamation, by repeated assumptions with regard to the Rebel States, testifies to the necessity of Congressional action.

We have already seen that Andrew Johnson declared the State of Tennessee “vacated” of all local government which we are bound to respect; and this language obviously harmonizes with that of the President. But Arkansas was in a similar situation.

Such are some of the arguments for the power of Congress. Others might be adduced; but I have said enough. The necessity of the case, reason, the authority of the Supreme Court, the Constitution, and the President’s Proclamation, each and all, tend to the same conclusion, even without resorting to those war powers which are all within the reach of Congress. Yet if we glance at the latter, we find the power of Congress declared beyond question. There is nothing the President may do as commander-in-chief which Congress may not direct and govern, according to the authoritative words of Chancellor Kent:—

And these powers, vast as they are, when called into activity by the exigency of war or rebellion, become as constitutional as if specified precisely in a written text.

Mr. President, there is a saying of Antiquity applicable to this question: Make haste slowly. Do not fail to make haste; but let your haste be governed by wisdom and prudence. In making haste, do not sacrifice all safeguards for the future. In haste to welcome Senators from Rebel States, do not forget everything else: do not forget the principles of republican institutions, offended by the rule of a minority; do not forget the principles of justice among the States, shocked by admission of the fraction of a Rebel State to equality of power with loyal States; do not forget the disturbed condition of the Rebel States, rendering the civil authorities subordinate to the military; do not forget the necessity of a connecting link of legality between the old and the new; do not forget that commercial intercourse must be restored, and every ban of proclamation or statute removed, before representation can be allowed; and, still further, do not forget that the Rebel States, by their own acts, sustained by bloody war, have voluntarily placed themselves outside the pale of political association, until Congress shall recognize them again entitled to their original equality; but, above all, do not forget that there can be no recognition of a Rebel State, until its permanent tranquillity is assured by irreversible guaranties which no local power can disturb. Keep these things in mind, and then make haste.

Of course, when within the confines of a State the Rebellion is triumphantly subdued, and the great body of the people manifest an unmistakable loyalty,—when local elections are held according to ordinary municipal forms,—when laws, and not arms, prevail,—and when a government, republican in fact as in name, making Slavery forever impossible, under any form or pretence, is permanently established,—then will Congress, by proper legislative action, rejoice to welcome the newly constituted State to its equal share in the National Government. But such welcome must not be precipitate. It can be offered only after most careful inquiry into the actual condition of things, and the assured conviction that the Rebel State has been newly constituted in fact as in name. And this caution is needed, not only for the good of the Union, but for the good of the State itself, which must be saved from premature responsibilities beyond the measure of its present powers.

Sir, it is much to be a State in full fellowship and equality with other States represented in these two Chambers, with a voice in the election of President and Vice-President, and with a star on the national flag. To be admitted into such prerogatives and privileges, a State must be “above suspicion,” and it must be able to use well all the great powers belonging to the State. But if a State is not yet “above suspicion,” and is not strong enough to stand alone, even against domestic disturbers, it cannot expect immediate recognition. It must wait yet a little longer, until, restored at last in character and in strength, it can do all the duties of a State, and with master-hand grasp that Ulyssean bow which pretenders strive in vain to bend.

Mr. President, I conclude as I began, with my heart’s gratitude to those brave citizens who again in Arkansas lift the national banner. Let them not be disheartened. Their country is with them in all their perils and all their efforts, longing to receive them again into ancient fellowship and equality; but the time for this welcome has not yet come. Meanwhile let them remember that “they also serve who only stand and wait.”

MEANS FOR THE WAR THE TRUE OBJECT OF THE TARIFF.

Here I repeat, Sir, what I have said very often on this floor since the Rebellion began, that there is one rule which I always follow, and, by the blessing of God, will follow to the end. It is this: show me how I can best contribute to the resources of my country, enabling it to reach the end we all desire, and I shall vote for it. At this moment I know no way in which I can contribute more than by adding to the financial strength. Show me how I can most surely secure means to carry on the war and obtain its successful close, and I shall vote for it. If, therefore, by a tax at seventy cents I can promise a larger income than by a tax at sixty cents, I shall vote for seventy cents. To that extent I follow the Senator from Maine.

NO TAX ON EDUCATION.

Little money, much mischief: these are two objects that present themselves. That we shall obtain little money is obvious, when it is considered that the philosophical apparatus and instruments imported by colleges and literary institutions, particularly when exposed to this tax, will be of little value. Twenty per cent on their value will not be much for the country. The detriment will appear in the discouragement to their importation. Now, Sir, I would encourage such importations. I would encourage everything by which these associations may be benefited. Not only the associations will gain by such encouragement, but the whole land will reap the advantage. If I could have my way, I would rather lavish upon them bounties. To my mind it is clear that the education of our country would be advanced by stimulating such importations rather than by discouraging them. But there is no question now of stimulating; the proposition is to discourage. I hope it will not be imposed.

I merely wish to make one remark. I would not protract the discussion at this late hour; but I must say that to my mind the proposition is not creditable to our country, and, I think, if adopted, will be mischievous. That is the way it impresses me. I cannot see it otherwise. It is to me a tax on education, and as such odious to an extent which I am hardly willing to characterize. Because we are engaged in war, I find no reason for a tax on education. Tax luxuries, tax necessaries, tax everything else; but do not tax education. As I said this morning, if need be, rather give it a bounty.

ABOLITION OF THE COASTWISE SLAVE-TRADE.

MR. PRESIDENT,—I am sorry that the Senator objects to this amendment. It is true, his objection is of form; but I venture to say that no such objection should be made to such a proposition, especially at this stage of the session.

In moving it now on an appropriation bill, I follow approved precedents. There is no rule of order against it; nor is there any rule of usage. On the contrary, it is in conformity with both order and usage.

The Senator wishes to keep the Appropriation Bill free from extraneous matter. But this is not sufficient reason for excluding my amendment, unless the Senator is ready, for the sake of form, to sacrifice substance. If it be important that my amendment should prevail, and if at this late stage of the session it may be difficult to carry it otherwise, then am I clearly right in moving it, as I now do, and the Senator is wrong in opposing it. An appropriation bill is like a “through train,” and while its special office is to appropriate money, yet it may carry anything required by the public good.

Why, Sir, there is hardly ever an appropriation bill that is not compelled to take passengers in this way. It has been so during the present session repeatedly; and if the Senator will read the “Statutes at Large,” he will find that the usage has prevailed for years. It is no new thing. I do not begin it.

If it were necessary to furnish examples, I might point to my friend, the Senator from New Hampshire [Mr. Hale], who gained one of his proudest triumphs in this Chamber, securing to him the sympathy and gratitude especially of sailors, by moving on an appropriation bill the abolition of the lash in the naval and commercial marine of the United States. Had he been driven to wait a special act for this purpose, I fear he would have been waiting to this day. And the example of the Senator has been followed by the Senator from Iowa [Mr. Grimes], who, on an appropriation bill, moved and carried the abolition of grog in the navy.

But I am not without personal experience under this head. I trust that I shall not take too great a liberty, if I adduce it even in detail. I was chosen to the Senate for the first time immediately after the passage of the infamous Fugitive Slave Act of 1850. If I received from the people of Massachusetts any special charge, it was to use my best endeavors to secure the repeal of that act. I began the work in the first session that I was here. Disappointed in various efforts to bring the question directly before the Senate on a bill or resolution, I ventured at last—on the advice of eminent Senators who differed from me in sentiment, but who appreciated candidly the obligations of my position—to move the repeal on an appropriation bill. A debate ensued, which lasted till late in the evening. It may not be uninteresting to know that on the ayes and noes there were but four votes in the affirmative,—Mr. Chase, Mr. Hale, Mr. Sumner, and Mr. Wade. This was 26th August, 1852. Such was the weakness of our cause at that time.

But please remark, that, throughout the protracted and sometimes acrimonious debate, it was never for a moment objected that the proposition was “not germane to the bill,” or that it was not completely in order. Had any such thing been tenable, had there been the least apology for it, had it not been utterly unreasonable, be assured, Sir, it would have been made the excuse for stifling the discussion. The two political parties had just made their nomination for President. Franklin Pierce was the candidate of the Democrats, and Winfield Scott of the Whigs. Both had united on platforms declaring the Compromise measures, including the Fugitive Slave Act, “a finality” not to be opened or discussed. But they were opened and discussed on that day.

Mr. Hunter, of Virginia, was at the time Chairman of the Committee on Finance. He was in many respects a remarkable person, with a mind enlarged somewhat by study and long experience in public affairs, and with a temper not easily disturbed. Looking back upon his conduct of the business entrusted to him, there can be no question of his ability or fidelity. There was neither weakness nor indifference in that mildness of sway. He understood completely the duties of his position, was a jealous guardian of the appropriation bills, and was, moreover, a most determined thick-and-thin partisan of Slavery in all its pretensions. But I do not recollect that he interposed any objection to the time or place of my motion; and though the Fugitive Slave Bill was part of his political and social creed, I am sure that he allowed the debate to close without any criticism upon my course, or a single impatient word. All this now belongs to history, and I mention it as a precedent for the present hour.

My motion that day was discussed on its merits, and I trust my motion to-day will be discussed in the same way.

I seek to remove from the statute-book odious provisions in support of Slavery. Whoever is in favor of those provisions, whoever is disposed to keep alive the coastwise slave-trade, or to recognize it in our statutes, will naturally vote against my motion. And yet let me say that I am at a loss to understand how, at this moment, at this stage of our history, any Senator can hesitate to unite with me in this work of expurgation and purification. At all events, I trust the Senator from Ohio will not set up an objection of form to prevent the success of this good work. He must not be more severe against Freedom now than was the representative of Slavery who occupied his place when I moved the repeal of the Fugitive Slave Bill.

Of course I disagree radically with the Senator from Maryland [Mr. Johnson]. He is always willing to interpret the Constitution for Slavery. I interpret it for Freedom. And yet he is anxious lest the repeal of the two obnoxious sections regulating the coastwise slave-trade should leave it open to unrestrained practice. I do not share his anxiety.

Where will the slaves come from? Not from the Rebel States; for Emancipation is the destined law there. Not from his own State; for Emancipation will soon be the law there. But even should slaves be found for this traffic (which, thank God, cannot be the case), I am unwilling that Congress should continue to regulate the ignoble business. Our statute-book should not be defiled by any such license. Remove this license, and the Constitution, rightly interpreted, will do the rest.

Here arises the difference between the Senator and myself. He proceeds as if those old days still prevailed, when Slavery was installed supreme over the Supreme Court, giving immunity to Slavery everywhere. The times have changed, and the Supreme Court will yet testify to the change. To me it seems clear, that, under the Constitution, no person can be held as a slave on shipboard within the national jurisdiction, and that the national flag cannot cover a slave. The Senator thinks differently, and relies upon the Supreme Court; but I cannot doubt that this regenerated tribunal will yet speak for Freedom as in times past it has spoken for Slavery. And I trust, should my life be spared, to see the Senator from Maryland, who bows always to the decisions of that tribunal, recognize gladly the law of Freedom thus authoritatively pronounced. Perhaps he will wonder that he was ever able to interpret the Constitution for Slavery. If he should not, others must.

But my special purpose is to remove odious provisions, and I have contented myself with words of repeal, in the hope of presenting the proposition in such a form as to unite the largest number of votes. My own disposition has been to go further, and to add words of positive prohibition. But, at the present moment, I am willing to waive this addition, and content myself with the simple repeal, that our statute-book may no longer be degraded, trusting that the Constitution, rightly interpreted, will suffice. And yet the positive prohibition, which the Senator seems to invite or to challenge, would not only purify the statute-book, but effectually guard against the future, so that both Constitution and Law would be arrayed against an infamous traffic. Clearly this ought to be done; and if I have not presented it, do not set it down to indifference or inattention, but simply to my desire that the proposition, moved on an appropriation bill, should be limited to the necessity of the occasion. To do less than I propose would be wrong. I should be glad to do more.

I wish to make one remark on the question of power. I say nothing on the point whether Congress under the Constitution may regulate the trade in slaves between the States on the land. I waive that question. The proposition before the Senate simply undertakes to prohibit the coastwise slave-trade. Now, Sir, I hold in my hand Brightly’s Digest. Turning to that, you will find one head entitled “Coasting Trade,” containing no less than forty-eight different sections, each in the nature of a regulation by Congress on that subject. I turn next to another head, entitled “Passengers.” There I find seventeen sections, each in the nature of a regulation on that subject; and in point of fact it is well known that Congress has, by most minute regulations, determined the conditions on which passengers shall be carried in ships. It is known that those regulations are applied especially on board the California steamers, and the steamers between this country and Europe. In the one case the steamers are foreign; in the other they are domestic,—or the trade, if I may so say, is domestic. In view of this minute and ample legislation on the subject of passengers and of the coasting-trade, I submit there can be no question that Congress can go further, and, by a final regulation, declare that in our coasting-trade there shall be no such thing as the slave-trade.

I have but one observation to make. It seems to me this Congress will do wrong to itself, wrong to the country, wrong to history, wrong to the national cause, if it separates without clearing the statute-book of every support of Slavery. Now this is the last support in the statute-book, and I entreat the Senate to remove it.

OPENING OF THE UNITED STATES COURTS TO COLORED WITNESSES.