A previous chapter, in relating the military events which succeeded the disaster at Chickamauga, noticed a suggestion of the defeated Federal commander as well as Mr. Lincoln’s reply relative to the publication at that time of a declaration of amnesty to those in arms against the Government.^[309] The double victory of Mission Ridge and Lookout Mountain, following the removal of Rosecrans, confirmed the President in his purpose of offering a general pardon to those who would lay down their arms and return to their obedience to the laws. The Proclamation of December 8, 1863, followed promptly and brought the subject of reconstruction before the Thirty-eighth Congress at its first session. The preceding pages have alluded to the universal favor with which that announcement was received. Though opposition to Executive measures was hushed for the time, it appears only to have gathered strength in this brief interval of silence. One short week introduced into the House of Representatives a resolution the subsequent progress of which brought the dominant party in Congress to the support of a measure hostile to that submitted by the President. Its interesting history may be collected from the pages of the Congressional Globe.

On December 15, from the Committee of Ways and Means, Thaddeus Stevens reported among other resolutions one to refer so much of the President’s message as was contained in the Proclamation, and as related to the condition and treatment of rebellious States, to a special committee of nine to be appointed by the Speaker. Henry Winter Davis inquired whether Mr. Stevens would accept for that resolution an amendment pointing more directly to the purpose in view. This substitute read as follows:

That so much of the President’s message as relates to the duty of the United States to guarantee a republican form of government to the States in which the governments recognized by the United States have been abrogated or overthrown, be referred to a select committee of nine, to be named by the Speaker, which shall report the bills necessary and proper for carrying into execution the foregoing guaranty.^[310]

Stevens offering no objection, Representative Davis remarked that the language of the resolution was general, and, he believed, would cover the whole war; the committee, he supposed, intended to point to what, in the very inaccurate phraseology of the day, was known as the question of reconstruction; but believing there had been no destruction, he carefully avoided the use of that term.

The Government of the United States, continued Mr. Davis, was engaged in two operations: the suppression of armed resistance to the supreme authority of the nation and a very delicate, and perhaps as high a duty—to see, when armed resistance should be overcome, that governments republican in form should be restored in all those States. His substitute directed the investigations of the committee to that one point. It was not intended as a peremptory instruction to the committee to report any particular measure, but to take such action as their wisdom should recommend.

Democratic feeling on this subject appears in an inquiry by Representative Brooks, of New York, as to whether republican governments had not been abrogated and overturned north as well as south of the Potomac since the revolution began.^[311]

The amendment of Mr. Davis prevailed, and of the special committee appointed he was made chairman. On January 18, 1864, he asked unanimous consent to report a bill to guarantee certain States a republican form of government. Objection having been made, he moved a suspension of the rules; but failing to receive the necessary two thirds vote his motion was lost. On February 15 succeeding, when he brought the measure before the House again and requested a postponement of its consideration for two weeks, it encountered Democratic opposition. The bill was then read a first and second time, ordered to be printed, and returned to the committee.

On March 22 the bill came before the House on the question of ordering it to be engrossed and read a third time. In its support Mr. Davis made an able address in which he analyzed the plan proposed by the Executive and emphasized its deficiencies. He said:

The bill which I am directed by the Committee on the Rebellious States to report is one which provides for the restoration of civil government in States whose governments have been overthrown. It prescribes such conditions as will secure not merely civil government to the people of the rebellious States, but will also secure to the people of the United States permanent peace after the suppression of the rebellion.

The bill challenges the support of all who consider slavery the cause of the rebellion, and that in it the embers of rebellion will always smoulder; of those who think that freedom and permanent peace are inseparable, and who are determined, so far as their constitutional authority will allow them, to secure these fruits by adequate legislation.

... It is entitled to the support of all gentlemen upon this side of the House, whatever their views may be of the nature of the rebellion; and the relation in which it has placed the people and States in rebellion toward the United States, not less of those who think that the rebellion has placed the citizens of the rebel States beyond the protection of the Constitution, and that Congress, therefore, has supreme power over them as conquered enemies, than of that other class who think that they have not ceased to be citizens and States of the United States, though incapable of exercising political privileges under the Constitution, but that Congress is charged with a high political power by the Constitution to guarantee republican governments in the States, and that this is the proper time and the proper mode of exercising it. It is also entitled to the favorable consideration of gentlemen upon the other side of the House, who honestly and deliberately express their judgment that slavery is dead. To them it puts the question whether it is not advisable to bury it out of our sight, that its ghost may no longer stalk abroad to frighten us from our propriety.

It does not address itself to that class of gentlemen upon the other side of the House, if there be any, nor to that class of the people of the country who look for political alliance to the men who head the rebellion in the South....

It purports, sir, not to exercise a revolutionary authority, but to be an execution of the Constitution of the United States, of the fourth section of the fourth article of that Constitution, which not merely confers the power upon Congress, but imposes upon Congress the duty of guaranteeing to every State in this Union a republican form of government. That clause vests in the Congress of the United States a plenary, supreme, unlimited political jurisdiction, paramount over courts, subject only to the judgment of the people of the United States, embracing within its scope every legislative measure necessary and proper to make it effectual; and what is necessary and proper the Constitution refers, in the first place, to our judgment, subject to no revision but that of the people. It recognizes no other tribunal. It recognizes the judgment of no court. It refers to no authority except the judgment and will of the majority of Congress, and of the people on that judgment, if any appeal from it.

[Secession he described as] the act of the people of the States, carrying with it all the consequences of such an act. And therefore it must be either a legal revolution which makes them independent, and makes of the United States a foreign country, or it is a usurpation against the authority of the United States, the erection of governments which do not recognize the Constitution of the United States, which the Constitution does not recognize, and, therefore, not republican governments of the States in rebellion. The latter is the view which all parties take of it. I do not understand that any gentleman on the other side of the House says that any rebel government which does not recognize the Constitution of the United States, and which is not recognized by Congress, is a State government within the meaning of the Constitution. Still less can it be said that there is a State government, republican or un-republican, in the State of Tennessee, where there is no government of any kind, no civil authority, no organized form of administration except that represented by the flag of the United States, obeying the will, and under the orders of the military officer in command. It is the language of the President of the United States in every proclamation, of Congress in every law on the statute-book, of both Houses in their forms of proceeding, and of the Courts of the United States in their administration of the law. It is the result of every principle of law, of every suggestion of political philosophy, that there can be no republican government within the limits of the United States that does not recognize, but does repudiate, the Constitution, and which the President and the Congress of the United States do not, on their part, recognize. Those that are here represented are the only governments existing within the limits of the United States. Those that are not here represented are not governments of the States, republican under the Constitution. And if they be not, then they are military usurpations, inaugurated as the permanent governments of the States, contrary to the supreme law of the land, arrayed in arms against the Government of the United States; and it is the duty, the first and highest duty, of the Government to suppress and expel them. Congress must either expel, or recognize and support them. If it do not guarantee them, it is bound to expel them; and they who are not ready to suppress them are bound to recognize them.

“In the famous Rhode Island cases,” he continued, the Supreme Court of the United States by the mouth of Chief Justice Taney, declared “that a military government, established as the permanent government of a State, is not a republican government in the meaning of the Constitution, and that it is the duty of Congress to suppress it. That duty Congress is now executing by its armies. He [Justice Taney] further said in that case that it is the exclusive prerogative of Congress—of Congress, and not of the President—to determine what is and what is not the established government of the State; and, to come to that conclusion, it must judge of what is and what is not a republican government, and its judgment is conclusive on the Supreme Court, which cannot judge of the fact for itself, but accepts the fact declared by the political department of the Government.”

Mr. Davis resumed:

We are now engaged in suppressing a military usurpation of the authority of the State government. When that shall have been accomplished, there will be no form of State authority in existence which Congress can recognize. Our success will be the overthrow of all semblance of government in the rebel States. The Government of the United States is then, in fact, the only Government existing in those States, and it is there charged to guarantee them republican governments.

... The duty of guaranteeing carries with it the right to pass all laws necessary and proper to guaranty.... It places in the hands of Congress the right to say what is and what is not, with all the light of experience and all the lessons of the past, inconsistent, in its judgment, with the permanent continuance of republican government; and if, in its judgment, any form of policy is radically and inherently inconsistent with the permanent and enduring peace of the country, with the permanent supremacy of republican government, and it have the manliness to say so, there is no power, judicial or executive, in the United States, that can even question this judgment but the People; and they can do it only by sending other representatives here to undo our work. The very language of the Constitution and the necessary logic of the case involve that consequence. The denial of the right of secession means that all the territory of the United States shall remain under the jurisdiction of the Constitution. If there can be no State government which does not recognize the Constitution, and which the authorities of the United States do not recognize, then there are these alternatives, and these only: the rebel States must be governed by Congress till they submit and form a State government under the Constitution; or Congress must recognize State governments which do not recognize either Congress or the Constitution of the United States; or there must be an entire absence of all government in the rebel States; and that is anarchy. To recognize a government which does not recognize the Constitution is absurd, for a government is not a constitution; and the recognition of a State government means the acknowledgment of men as governors, and legislators, and judges, actually invested with power to make laws, to judge of crimes, to convict the citizens of other States, to demand the surrender of fugitives from justice, to arm and command the militia, to require the United States to repress all opposition to its authority, and to protect it from invasion—against our own armies; whose Senators and Representatives are entitled to seats in Congress, and whose electoral votes must be counted in the election of the President of a Government which they disown and defy!! To accept the alternative of anarchy as the constitutional condition of a State is to assert the failure of the Constitution and the end of republican government. Until, therefore, Congress recognize a State government, organized under its auspices, there is no government in the rebel States except the authority of Congress. In the absence of all State government, the duty is imposed on Congress ... to administer civil government until the people shall, under its guidance, submit to the Constitution of the United States, and, under the laws which it shall impose, and on the conditions Congress may require, reorganize a republican government for themselves, and Congress shall recognize that government.

... Is it yet time to reorganize the State governments? or is there not an intermediate period in which sound legislative wisdom requires that the authority of Congress shall take possession of and temporarily control the States now in rebellion until peace shall be restored and republican government can be established deliberately, undisturbed by the sound or fear of arms, and under the guidance of law?

After referring to the condition of the rebellion, Mr. Davis declared: “We have occupied a vast area wrested from its power, but to this day we have not expelled the rebels from any State they ever held.” In no portion of those States could military power “be withdrawn for a moment without instant insurrection”; and he added, “There is no rebel State held now by the United States enough of whose population adheres to the Union to be intrusted with the government of the State. One tenth cannot control nine tenths. Five tenths are nowhere willing to undertake the control of the other five tenths.” In West Virginia, he said, such a condition existed and had been recognized. “In no other State—the only one in respect to which a doubt can exist is Tennessee—in no other State is there such a portion of territory held, or any such portion of population under our control, or any such portion of it which is in our control inspired by such sentiments toward the Government of the United States, so free from fear of the returning wave of rebel invasion, so assured of the continued supremacy of the United States, that we ought to be willing to trust them with this power. You can get a handful of men in the several States who would be glad to take the offices if protected by the troops of the United States, but you have nowhere a body of independent, loyal partisans of the United States, ready to meet the rebels in arms, ready to die for the Republic, who claim the Constitution as their birthright, count all other privileges light in comparison, and resolve at every hazard to maintain it.”

Concerning the loyal masses of the South, of whom so much was heard at the beginning of the war, he remarked:

It is the most astounding spectacle in history that in the Southern States, with more than half of the population opposed to it, a great revolution was effected against their wishes and against their votes, without a battle, a riot, or a protest in behalf of the beneficent Government of their fathers—a revolution whose opponents hastened to lead it, without a martyr to the cause they deserted except the nameless heroes of the mountains of Tennessee, or a confessor of the faith they had avowed save the illustrious Petigru of South Carolina!

... There is no fact that any one has stated on authority at all reliable that any respectable proportion of the people of the Southern States now in rebellion are willing to accept any terms that even our opponents on the other side of the House are willing to offer them.

What, then, are we to do with the population in these States? To make “confusion worse confounded” by erecting by the side of the hostile State government a new State government on the shifting sands of that whirlpool, to be supported by us while we are there and to turn its power against us when we are driven out? That would be to erect a new throne where

In my judgment, it is not safe to confide the vast authority of State governments to the doubtful loyalty of the rebel States until armed rebellion shall have been trampled into the dust, until every armed rebel shall have vanished from the State, until there shall be in the South no hope of independence and no fear of subjection, until the United States is bearded by no military power and the laws can be executed by courts and sheriffs without the ever-present menace of military authority. Until we have reached that point, this bill proposes that the President shall appoint a civil governor to administer the government under the laws of the United States in force in the States respectively at the outbreak of the rebellion, subject, of course, to the necessities of military occupation.

When military opposition shall have been suppressed, continued Mr. Davis, then call upon the people to reorganize their governments in their own way, “subject to the conditions that we think essential to our permanent peace, and to prevent the revival hereafter of the rebellion....”

To establish republican forms of government that the people of the United States would agree to, three modes were indicated: “One is to remove the cause of the war by an alteration of the Constitution of the United States prohibiting slavery everywhere within its limits. That, sir, goes to the root of the matter, and should consecrate the nation’s triumph. But there are thirty-four States—three fourths of them would be twenty-six. I believe there are twenty-five States represented in this Congress, so that we, on that basis, cannot change the Constitution. It is, therefore, a condition precedent in that view of the case, that more States shall have governments organized within them.”

He next noticed the calculation based on three fourths of the States then represented in Congress, a construction held by Thaddeus Stevens, but even that view was not without its difficulties. The States of New Jersey, Kentucky, Maryland and Delaware were named as doubtful. If such an amendment were adopted it still left “the whole field of the civil administration of the States prior to the recognition of State governments, all laws necessary to the ascertainment of the will of the people, and all restrictions on the return to power of the leaders of the rebellion, wholly unprovided for.” The constitutional amendment met his hearty approval, but it was not a complete remedy.

Relative to the Administration policy, he observed:

The next plan is that inaugurated by the President of the United States in the proclamation of the 8th of December, called the amnesty proclamation. That proposes no guardianship of the United States over the reorganization of the governments, no law to prescribe who shall vote, no civil functionaries to see that the law is faithfully executed, no supervising authority to control and judge of the election. But if, in any manner, by the toleration of martial law, lately proclaimed the fundamental law, under the dictation of any military authority, or under the prescriptions of a provost marshal, something in the form of a government shall be presented, represented to rest on the votes of one tenth of the population, the President will recognize that, provided it does not contravene the proclamation of freedom and the laws of Congress; and, to secure that, an oath is exacted.

Now you will observe that there is no guarantee of law to watch over the organization of that government. It may combine all the population of a State; it may combine one tenth only; or ten governments may come competing for recognition at the door of the Executive mansion. The executive authority is pledged; Congress is not pledged. It may be recognized by the military power and may not be recognized by the civil power, so that it would have a doubtful existence, half civil and half military, neither a temporary government by law of Congress nor a State government, something as unknown to the Constitution as the rebel government that refuses to recognize it.

In examining the operation of the Executive proclamation on the existence of slavery, Mr. Davis asked, how does it accomplish the reorganization of the government on the basis of universal freedom? and added:

The only prescription is that the government shall not contravene the provisions of that proclamation. Sir, if that proclamation be valid, then we are relieved from all trouble on that score; but if that proclamation be not valid, then the oath to support it is without legal sanction, for the President can ask no man to bind himself by an oath to support an unfounded proclamation or an unconstitutional law even for a moment, still less till it shall have been declared void by the Supreme Court of the United States.... If, therefore, he shall have taken the oath, he can, in good conscience as well as in good law, disregard it the next moment; so that, in point of fact, the law leaves us where the proclamation does; it adds nothing to its legality, nothing to its force.

But what is the proclamation which the new governments must not contravene? That certain negroes shall be free, and that certain other negroes shall remain slaves. The proclamation therefore recognizes the existence of slavery. It does just exactly what all the constitutions of the rebel States prior to the rebellion did; ... and, therefore, the old constitutions might be restored to-morrow without contravening the proclamation of freedom. Those constitutions do not say that the President shall not have the right, in the exercise of his military authority, to emancipate slaves within the States.... They do not even establish slavery.... They merely recognize it just as the proclamation recognizes its existence in parts of Virginia and in parts of Louisiana. So that the one tenth of the population at whose hands the President proposes to accept and guarantee a State government, can elect officers under the old constitution of their State in exactly the same terms and with exactly the same powers existing at the time of the rebellion, and may, under his proclamation, demand a recognition.... So soon as the State government is recognized, the operation of the proclamation becomes merely a judicial question. The right of a negro to his freedom is a legal right divesting a right of property, and is to be enforced in the courts; and then the question is what the courts will say about the proclamation. Is it valid or invalid? Does it of itself confer a legal right to freedom on negroes who were slaves? Is it within the authority of the Executive?... How local State courts, created by the Southern people, will decide such a question no one can doubt.... It is, therefore, under the scheme of the President, merely a judicial question, to be adjudged by judicial rules, and to be determined by the courts.... I do not desire to argue the legality of the proclamation of freedom. I think it safer to make it law.... Under the act of 1862 the President is authorized to use the negro population for the suppression of the rebellion; while the rebellion lasts, his proclamation in law exempts the slave from the duty of obeying his master, but after the rebellion is extinguished, the master’s rights are in his own hands, subject only to the opinion of the courts on the legal effect of the proclamation, without a single precedent to sanction it, and opposed by the solemn assertions of our Government against the principle worked to authorize it. Gentlemen are less prudent or less in earnest than I am if they will risk the great issues involved in this question on such authorities before the courts of justice.

By the bill we propose to preclude the judicial question by the solution of a political question. How so? By the paramount power of Congress to reorganize governments in those States, to impose such conditions as it thinks necessary to secure the permanence of republican government, to refuse to recognize any governments there which do not prohibit slavery forever. Ay, gentlemen take the responsibility to say, in the face of those who clamor for speedy recognition of governments tolerating slavery, that the safety of the people of the United States is the supreme law; that their will is the supreme rule of law, and that we are authorized to pronounce their will on this subject—take the responsibility to say that we will revise the judgments of our ancestors; that we have experience written in blood which they had not; that we find now, what they darkly doubted, that slavery is really, radically inconsistent with the permanence of republican governments; and that, being charged by the supreme law of the land, on our conscience and judgment, to guarantee, that is, to continue, maintain, and enforce, if it exist, to institute and restore when overthrown, republican governments throughout the broad limits of the republic, we will weed out every element of their policy which we think incompatible with its permanence and endurance.... It [the bill] adds to the authority of the proclamation the sanction of Congress....

Gentlemen must deny the jurisdiction of Congress over the States where there are no recognized governments, or place a bound or limit to the discretion of Congress....

And if the sentiments of State pride and State rights be touched by the assertion of this wide discretion, which men may deny but cannot expunge, I would admonish those who dislike it that it is a jurisdiction which nothing but the dereliction of the States can wake into activity, and they who wish to exclude it from their limits have only not to give occasion for its exercise by renouncing obedience to the Constitution and pulling down their own State governments. But now the jurisdiction has attached in all the rebel States. Until Congress has assented, there is no State government in any rebel State, and none will be recognized except such as recognize the power of the United States; so that we come down to this: whether we—and when I say we, I mean we upon this side of the House, who are firmly, thoroughly, and honestly convinced that the time has come not merely to strike the arms from the hands of the rebels, but to strike the fetters from the arms of the slaves, and remove that domineering and cohesive power without which we could have had no rebellion, and which now is its animating spirit, and which will die when it dies—....

And if it be time [for Congress to assert its authority] then all I ask in conclusion is, that gentlemen will go and read that great argument of Daniel Webster in the Rhode Island case ... where he met this semi-revolutionary attempt to count heads and call that the people, and maintained—and so the Supreme Court judged when it refused to take jurisdiction of the question—that the great political law of America is that every change of government shall be conducted under the supervising authority of some existing legislative body throwing the protection of law around the polls, defining the rights of voters, protecting them in the exercise of the elective franchise, guarding against fraud, repelling violence, and appointing arbiters to pronounce the result and declare the persons chosen by the people.... He [Webster] maintained it to be the great fundamental principle of the American government that legislation shall guide every political change, and that it assumes that somewhere within the United States there is always a permanent, organized legal authority which shall guide the tottering footsteps of those who seek to restore governments which are disorganized and broken down.

The bill, he asserted in conclusion, was an effort to apply this great principle of American law.^[312]

Representative Scofield, of Pennsylvania, said, April 29, 1864, when the subject was again before the House, that the continuity of constitutional government in the seceded States had been broken, the regular transmission of political power interrupted. How, he inquired, should the severed thread be joined? By the unconstrained action of the people themselves, say the gentlemen in opposition. He indorsed that sentiment, and added that when the people of those States should ground the arms of their rebellion, and uncoerced take upon themselves the easy yoke and light burden of the ever gentle Federal Government it would mark a glad day in those uncheerful years of our history.

For those States from which hostile armies had been excluded Congress should legislate or leave the people in the rough hand of military law. The bill designed to discharge that duty was generally acceptable to any one who conceded the propriety of Congressional action, its three prohibitions being probably the only debatable points,—that is the assumption of Confederate debts, the prevention of Confederate officers from voting and the prohibition of involuntary servitude.

To assume the rebel debt, he asserted, would be to offer a high bounty for future rebellions; if rebel officers were permitted to vote, upon what principle of comparative justice could the privilege be denied to ordinary criminals? These officers were guilty of the highest crime against government. As to the third prohibition he had more to say.

“If God shall give us victory,” continued Mr. Scofield, “and enable us to subdue or scatter the army of the enemy, is a voluntary reunion of the States possible? I say voluntary because I suppose nobody desires a Union always to be maintained by force; and I use the word reunion because nobody proposes a form of government different from our present system of State brotherhood. I am not now speaking of the several plans of reconstruction, for they are designed only as temporary devices, looking to a reunion.... My question looks beyond the battle and beyond reconstruction. When the victory is won, if won it shall be, and the transition over, will the insurgent States willingly stay where they have been forcibly put in their old places in the old Union?... Our own liberties could not survive their permanent subjugation. When the Federal Government becomes strong enough to hold eleven States as colonies, it will be too strong, I fear, for the people’s liberties.” All motives for those States ever to depart should be removed.

Similarity of ideas he characterized as the bond of nationality, and named Ireland, Hungary and Poland to show the opposite. In the United States slavery was the one subject of estrangement. Could North and South be brought to think alike on that subject? The theory that each side could hold its own opinions on slavery and no evil consequences follow was somewhat to blame. That theory failed in practice and for that failure each side blamed the other.

The fathers, he said, lived under that theory, that slavery and freedom could coexist, but they expected that the institution would soon become extinct. Hence they only tolerated it. Slavery was to recede slowly and freedom to follow steadily. Upon that basis they got along very well and so could their descendants. Instead of consenting to go, slavery demanded expansion and perpetuity. This was reversing the compromise of the fathers; this change had to be discussed, the slave power took umbrage and secession followed. If one sentiment must prevail, then slavery, which could not stand discussion, must yield if there was to be a reunion. To live in peace together the North must embrace slavery or the South must abandon it.

To adopt slavery would mean the adoption by 20,000,000 people of sentiments favorable thereto, whereas the institution never had any friends in the North. Those in that section so considered were only its apologists. If, three years ago, slavery had no real friends in the North, who would advocate it when it had attempted to destroy the most beneficent of governments? To reconcile the free States would necessitate a change of opinion—to adopt freedom as the dominant idea would require simply a change of investment in the sections. For the present extinguish the conflagration, for the future remove the inflammable material from which it was kindled. For the present seize the mad revolutionists of the South, for the future destroy the virus that poisoned their blood.

All who favored emancipation he favored as co-workers for a voluntary and peaceful reunion of the States; slavery was presented merely as an element of discord and disunion and as such he asked for its removal.^[313]

Mr. Williams said that the war was inaugurated on the theory that the States were in, whereas the great fact of war was a proclamation that they were out. Northern Democrats were willing to accept the fact that they were out, without war—to adopt the principle of the laissez nous faire of the rebel authorities and to treat with them upon the idea of a reconstruction; peaceful secession with reconstruction by treaty. The severance of the States was complete, though the hope of recovery remained. By releasing the crews of their privateers, by blockading their ports the Federal authorities had recognized them as a de facto government; Federal legislation had put them under the ban as alien enemies. In the minds of the framers of the Constitution the theory of an indissoluble Union referred to the right, to its organic law. They did not mean that it could not be ruptured by violence. If the governments of the States were dissolved “they must, of course, be reconstructed under the auspices of the conquering power, and that not by the Executive, but by the Legislature of the Union, whose sword he bears, and which only, consistently with the genius of our institutions, the past practice of the Government, and the letter as well as spirit of the Constitution, can venture to determine what use shall be made of the territories conquered by it, and when and upon what terms they shall be readmitted into full communion as members of this Government.... To permit any executive officer to declare its law, and set it in motion, and place it under the control of a minority—a mere tithe of its citizens—with power to send delegates to Congress with representation unimpaired and unaffected—even though he should reenact a part of its abrogated Constitution—would be, as I think, a monstrous anomaly, a violation of fundamental principles, and a precedent fraught with great danger to republican liberty.... To come back into the Union, it must either be born anew or come back with all its rights unimpaired, except those material ones which have been destroyed in the progress of the war. There is, I think, no middle ground, as there is no power either here or elsewhere to prescribe terms which shall abridge the rights or privileges of a State that has not been out of the Union, or returns to it in virtue of its original title.” The rebellious States, he declared, “are in the Union for correction, not for heirship.” In point of fact they were out.

Replying to an observation of Fernando Wood, Mr. Williams said: “We are in favor, at all events, of preserving all that is left of it [the Union], and intend, with the blessing of God, to win back the residue, and pass it through the fire until it shall come out purged of the malignant element that has unfitted it for freedom.

“... Say that they [the rebellious States] are in the Union as before, and all your sacrifices have been idle, and all the blood spilled by you has sunk into the earth in vain.”

The confiscation and distribution of the great baronial possessions of rebel leaders were in his judgment an essential element in any feasible plan of reconstruction. He deduced from passages in Bynkershoek and Barbeyrac that “everything belonging to the offending party is confiscated.... Indemnity, security, and punishment are all, therefore, means of self-defense which may be legitimately used.”

Is the forfeiture, he asked, of the estates and property of traitors, whether they consist of lands or slaves, required for these purposes? “Vae Victis” is not the maxim of a humane conqueror. Though he would not exclude the idea of mercy, he was not clear as to “the wisdom of a proclamation of amnesty in advance as a measure of pacification, without limits as to time, and where submission after conquest, and when it is no longer a virtue but a necessity, is to be rewarded with the same impunity as a voluntary return to duty before that time.”

Speaking of the nature, cause and fury of the war, he continued: “Its suppression has become impossible without removing the cause of the strife, and disabling our enemy by liberating his slaves, and arming them against him.”

No reparation was adequate for the injury inflicted; for, said he, “there can be no punishment, except in the divestiture of the rights and the seizure of the estates of the guilty leaders. There is no security except in the distribution of the latter.” From these he would carve out inheritances for the widow and the helpless offspring of the Northern soldier.

For eighteen months, he observed in conclusion, the war was conducted upon the principle of inflicting as little injury as possible upon the enemy.^[314]

The speech of Mr. Williams was marked by considerable fluency as well as great elegance of diction; it was the effort of a scholar, though not confined strictly to the question before the House. He introduced with directness and vigor the ideas of indemnity, security and punishment; these, it may be remarked, became important elements in determining the mode of reinstatement that finally emerged from the chaos of resolutions and plans submitted to Congress.

Representative Baldwin, of Michigan, believed the bill “to be an utter subversion of the Constitution”; even a latitudinarian construction of that instrument would not justify it. It embraced a plan that could be enforced by only the military arm. It was the precursor of the establishment of a despotism. That measure, as well as the President’s plan, was fraught with danger.

He lamented interference with the elective franchise and the denial of the privileges of the writ of habeas corpus. For eighteen months the war had been waged for the destruction of the South, not for the restoration of the Union. Did not wisdom, he asked, suggest that all plans of reconstruction which tended only to intensify hate and postpone the day of peace be abandoned? Speaking of the effect of Mr. Lincoln’s policy he observed: “That it was intended that the amnesty proclamation of last December would hasten the end of this strife, I do not believe. We are told that nearly every Southern paper published it, and it only nerved them to the performance of more earnest deeds.” The President’s plan as well as that of Congress, he believed, were designed to perpetuate the present dominant party by the vote of reconstructed States. A considerable portion of his remarks was devoted to criticism of the Administration.^[315]

Mr. Thayer, of Pennsylvania, believed that the powers delegated by the people of the United States to the national Government were sufficient for the great work of reconstruction, and added: “That the time has come in which Congress, in the exercise of the great powers conferred upon it, should settle and authoritatively declare the terms and conditions upon which the people of the rebellious districts should be restored to their State privileges and resume their just relations to the national Government, does not admit of doubt.” People occupying territory wrested from the rebellion should be restored with the least possible delay to the privileges of representative government. “Congress alone can enact the laws which are to reconstruct the political societies in which the fundamental principle of loyalty to the national Government and obedience to its laws and respect for its authority have been obliterated by the violence of rebellion. The President of the United States cannot enact these laws, and it is in my opinion a reproach to Congress that by its inaction up to the present time it has rendered it necessary that the national Executive should be obliged by a sense of obligation to the public welfare to resort to temporary expedients for the preservation of public order and the assertion of national supremacy in those districts and States which the valor of our soldiers has redeemed from the insulting domination of the rebel army.”

Executive action, he asserted, was suggested by necessity. “What has been done in that respect by the President I believe to have been well done, wisely done, and patriotically done, and to have been demanded alike by the necessity of the case and for the welfare of the Republic.” The exclusive right over the subject, however, belonged to Congress, which should relieve the President of all responsibility therein.

Safeguards against the recurrence of similar outbreaks in the future should be required. He would support the measure before the House because of these safeguards or pledges. Unconditional and perpetual loyalty in the new governments in the rebellious States to that of the United States, extirpation and perpetual prohibition of slavery and compulsory repudiation of the rebel debt were the chief among these.

“The safety of the country,” said he, “its future repose, the continuance of the Union, and the firm establishment of our political system imperatively demand that in the reorganization of local governments in the rebel States the foundations of such governments must rest upon the principle of submission to the Constitution and laws of the United States.

“... It is also necessary to guard the elective franchise and the privilege of holding office in those States against the intrusion and treachery of all who have in any sense been leaders in the present rebellion. For this purpose prudence requires that all who have held office under the pretended rebel government should be excluded from these privileges.”

The seventh section of the bill he would like to see so modified as to declare that no debt of the pretended Confederate States, and no debt contracted by the State for the purpose of prosecuting the war against the United States or of giving aid to its enemies, should be recognized or paid by the State.

It was a singular doctrine, he remarked in conclusion, that those who had thrown off all restraints of the Constitution and who for years had waged war for the purpose of overthrowing it should be entitled to demand its protection while engaged in armed hostility to it.^[316]

Mr. Yeaman did not believe Congress had a right to legislate away the laws and institutions of these States. The American people, he said, would come out of the contest with a better political education, an education having for its basis the idea that they are a nation, and he added, “a war to enforce the theory of secession will end in an increased consolidated nationality.” The theory expressed in the Virginia and Kentucky Resolutions was the fatal blow in our political history. His address was in the nature of an essay in political science and not altogether germane to the measure under consideration.^[317]

“Pass a judicious enabling act,” urged Mr. Longyear, “with proper safeguards, of which the people may avail themselves to organize civil governments at the very earliest opportunity, and it will afford a rallying point for the Union sentiment remaining there, and tend to foster it and nourish it into a healthful and vigorous existence. It will prevent perplexing and complicated irregularities and diversities of action, and tend largely to harmony and strength in our future deliberations. No stronger illustration of the necessity and propriety of immediate action need be given than the case of Tennessee, Louisiana, and Arkansas.

“The President’s proclamation does not solve the difficulty. As a proclamation of amnesty, as a general outline or plan for organizing new State governments, as a prescription of safeguards and conditions precedent to such organization, it will ever stand as a bright and glorious page in the history of the present Administration. But it is incomplete for lack of constitutional power. That can be conferred by Congress alone, under the power to admit new States.

“If we succeed [in the war] we make no conquest of territory, because that is already ours. We simply succeed, in that respect, in bringing that which is our own again under our control.” Because of rebellion the constitutions and laws of those States had ceased to exist, and as slavery was established solely in State laws that also ceased to exist. The only object of a constitutional amendment was to prohibit its establishment forever. Freedom, he added, was being substituted for slavery. In respect to slavery and the slave power we were in the midst of a revolution. They proved themselves inimical to civil liberty, to the Constitution and to republican institutions.^[318]

To the remark of Fernando Wood, of New York, that the South could not be subdued, Ignatius Donnelly replied, “We are doing it!” and he added, if the system of the President is deficient in the machinery that will ensure safety “it is our duty to supply that defect. The plan of the President, unsupported by any action on our part, hangs upon too many contingencies. It may be repealed by his successor; it may be resisted by Congress; it may be annulled by the Supreme Court. It rests the welfare of the nation upon the mind of one man; it rests the whole structure of social order upon the unstable foundation of individual oaths.” Upon this subject Mr. Donnelly observed that General Jefferson Thompson, C. S. A., noted in passing through those regions that men consulted their memorandum books to see what oath they had taken last. Thousands of rebel dead had been found on the battle field with oaths of allegiance, sworn to and subscribed, in their pockets. Mr. Donnelly favored the bill, and if any measure of greater security could be found he would support that. He desired, as soon as it could be attained, an amendment of the Constitution that would prohibit slavery.

“I am aware, Mr. Speaker,” he continued, “of the great claims which Mr. Lincoln has upon the people of the United States. I recognize that popularity which accompanies him, and which, considering the ordeal through which he has passed, is little less than miraculous. I recognize that unquestioning faith in his honesty and ability which pervades all classes, and the sincere affection with which almost the entire population regard him. We must not underrate him even in our praises. He is a great man. Great not after the old models of the world, but with a homely and original greatness. He will stand out to future ages in the history of these crowded and confused times with wonderful distinctness. He has carried a vast and discordant population safely and peacefully through the greatest of political revolutions with such consummate sagacity and skill that while he led he appeared to follow; while he innovated beyond all precedent he has been denounced as tardy; while he struck the shackles from the limbs of three million slaves he has been hailed as a conservative! If to adapt, persistently and continuously, just and righteous principles to all the perplexed windings and changes of human events, and to secure in the end the complete triumph of those principles, be statesmanship, then Abraham Lincoln is the first of statesmen.

“If the end of the war is to be a restoration of the appearance of the old Government; a patching together of the broken shreds and fragments; a propping up of the fabric in such style that the next Administration may possibly get out from under it before it falls, then that proclamation may be found all-sufficient. But for all other purposes it will be utterly unavailing. It does not reach the heart of the distemper....

“We owe more than this to ourselves; we owe more than this to the South. We must regenerate the South.”^[319]

This discriminating tribute to the character and genius of Mr. Lincoln was paid by no servile flatterer; it was not the eulogy of even a supporter of the Presidential plan of reconstruction; nor was it designed as a discharge of, or uttered in expectation of compelling, Executive favors, but appears rather to have been the spontaneous testimony of a keen interpreter of men and measures not less creditable to the insight of the speaker than to the subject of his remarks. Others, it is true, refrained from misrepresenting the President’s attitude and cheerfully ascribed to him patriotic and enlightened motives in his public conduct. Mr. Donnelly alone condensed into a paragraph a panegyric with which the judgment of posterity is in complete accord. This portion of his speech is quoted both to show that there were men in Congress who fully appreciated the greatness of the President, and that criticism of his measures was not in many instances suggested by feelings of personal hostility.

Very different were the remarks of Mr. Dennison, who declared that “The passage of this law will be the final gathering up of the reserved rights of States, and the last vestige of protection of the citizen under State constitutions will be taken away, and all power centralized in the General Government.” He opposed the bill for the additional reason that it was intended to legalize and perpetuate the unconstitutional acts of the President. “There does not exist on the earth a more despotic government than that of Abraham Lincoln. He is a despot in fact if not in name.”^[320] These excerpts sufficiently indicate the character of his invective.

“I have offered a substitute to the bill of the committee,” said Thaddeus Stevens, “because that does not, in my judgment, meet the evil. It partially acknowledges the rebel States to have rights under the Constitution, which I deny, as war has abrogated them all. I do not inquire what rights we have under it, but they have none. The bill takes for granted that the President may partially interfere in their civil administration, not as conqueror but as President of the United States. It adopts in some measure the idea that less than a majority may regulate to some extent the affairs of a republic.”^[321] The chief objection of Mr. Stevens, however, was that it removed the opportunity of confiscating the property of the disloyal.

Representative Wadsworth, of Kentucky, he said, agreed with him that the people of the South could plead none of the constitutional provisions in their defence. Whatever rights they possessed were those of belligerents engaged in war. “When we come to enforce the rights of conquest,” continued the Pennsylvania member, “we should be justified in insisting upon the extreme rights of war, without yielding to the mitigations dictated by modern usage with regard to belligerents originally composed of foreign nations engaged in war which they deemed just.” Explaining former recommendations which in many quarters had called forth severe criticism, he said: “I thought that the women and children, the non-combatants, and those who were forced by the laws of their State into the armies, should be spared; and the property of the guilty, morally as well as politically guilty, only should be taken. And yet we hear a howl of horror from conservative gentlemen at the inhumanity of the proposition.” He still further explained his sentiments on this occasion. After stating that the people of the Confederate States were sovereign and acted through their representatives, he asserted that they had commenced and were continuing to wage an unjust war and therefore their private property was liable to confiscation. The right to take their property existed, but no one, he said, “advises the execution of the extreme right. But the right exists and ought to be enforced against the most guilty. To allow them to return with their estates untouched, on the theory that they have never gone out of the Union, seems to me rank injustice to loyal men.” Of those who denied that the Confederate States had gone out of the Union he inquired, “What are we making war upon them for? For seceding; for going out of the Union against law. The law forbids a man to rob or murder, and yet robbery and murder exist de facto but not de jure.” Hence the Constitution does not allow the States to go out of the Union. He referred also in his speech to a resolution introduced by Mr. Schenck, of Ohio, which passed the House without a division and declared the Confederate States a public enemy, engaged in a public war.^[322]

On the same day, May 2, Representative Strouse remarked that immediately after the disaster of Bull Run the House almost unanimously passed the Crittenden Resolutions, which declared that “This war is not waged in any spirit of oppression, or for any purpose of conquest or subjugation, or purpose of overthrowing or interfering with the rights or established institutions of these States.” This announcement, he asserted, brought volunteers, whereas now, 1864, county, State and Federal bounties combined could not induce men to enlist, and the cause of the apathy was that the war had been perverted from the purpose announced in the resolutions referred to. The entire speech had little reference to the bill of Mr. Davis, but seemed rather designed, by an attack on the Administration, to please his Democratic constituents.^[323]

Mr. Cravens said that the dominant party did not distinguish between loyalty to the Administration and loyalty to the Government. The time for compromise had passed when the Republican party refused to accept the Crittenden Resolutions. That organization was in all essentials an abolition party. If there ever was a distinction it no longer existed. He cited a rather complete list of all the measures acted upon by Congress showing their concern for the negro; he charged neglect of the white soldier, his widow and orphans; quoted from the speech of Thaddeus Stevens on the admission of West Virginia, and named Representative Julian as uttering sentiments little behind the Pennsylvania member in boldness and exhibiting no more reverence for the Constitution. The incapacity and dire wickedness of the President and his “courtiers” came in for a share of criticism.

Mr. Gooch on the following day, May 3, remarked that the rebellion was but the military phase of the conflict of ideas which began with the adoption of the Constitution. “When we shall have crushed the rebellion and restored peace to all parts of the country we shall hold this territory, not by a new title, but by the old, not as territory acquired by conquest, but territory defended and maintained against revolt.... I can see no reason why the President, as Commander-in-Chief, should not, in the meantime, so use the military power as to aid and assist the loyal people of any one of these States in the organization of a loyal State government.... All these acts by the President, or the military power under him, in thus aiding and assisting the loyal people in these States, impose no obligation upon Congress to recognize them until such time as it shall deem proper to do so, and any recognition the military power may see fit to give to these governments can never fix their status in the Union. Congress alone has the power to determine what government is the legitimate one in a State, and its decision is binding on the other departments of the Government.”^[324]

Mr. Perry, of New Jersey, spoke of the duration of the war, predicted the general bankruptcy which its great expense would bring about, and calculated that in eleven years the cost of the war would equal the assessed value of property.

Speaking of the Executive plan he said: “And here the President’s design is perfectly evident, to secure a majority of the delegates to the nominating convention of his party, and to provide for his own election by the House of Representatives in the event of there not being an election by the people. By this plan the narrow foothold maintained by our armies in North Carolina, Louisiana, Texas, Alabama, Florida, Arkansas, and elsewhere may send the pretended full delegations of those States to this House. Mr. Speaker, I denominate the whole plan a political trick worthy of the most adroit and unscrupulous wire-puller of our ward primary meetings.” The State governments had not been destroyed, he added, “nor can they be destroyed unless the rebels are finally victorious, and establish their independence.”^[325]

Fernando Wood said that Mexico had a republican form of government, and that Texas came into the Union without changing the character of her government except to substitute a governor for President and to change the titles of some officials. Every Southern State possessed the same form of government which it did before secession. If, he asserted, they were then republican in form, “they are so now.” The Confederate constitution had all the elements of republicanism. The bill provided that hereafter none of the States in rebellion should hold slaves. It did not leave to the people the right to regulate their domestic institutions. Is it republicanism to take from the people this privilege? “To impose upon them a form of government of your own making, under the pretext of this bill, would be the worst kind of tyranny, whatever the provisions of your constitution might be.”^[326]

He defended himself against serious charges of General Schenck, whom he criticised severely. These accusations, however, were reiterated by Hon. William D. Kelley, of Pennsylvania, who at this point rose to speak on the merits of the bill.

The proposed measure did not meet his unqualified approval. It lacked some of the amendments suggested by Mr. Stevens. “I should like to see his distinct declaration,” said Congressman Kelley, “that ‘The Confederate States are a public enemy, waging an unjust war, whose injustice is so glaring that they have no right to claim the mitigation of the extreme rights of war which are accorded by modern usage to an enemy who has the right to consider the war a just one.’” He would like to see the bill of Mr. Davis provide also for the exclusion from Congress of all those States that seceded, and every part of them.

As more immediately important, however, he would prefer to see included in the measure the proposition of Mr. Stevens respecting amendments of the Constitution; he denied the immortality of a State. It has its beginning, its transitions and may have its end. “A State may be killed, a State may commit suicide. An act of God, by destroying its inhabitants, might extinguish a State. A State could be conquered and held by some strong and hostile power. The political people of each of those States have overthrown the State. Through its corporate power each State destroyed its corporate life, and no one of them exists.” He also denied that a State could transfer to any foreign power territory within the jurisdiction of the United States. The Supreme Court had decided that the Southern States were alien enemies and entitled to only the rights of such.^[327]

The message of the President, Representative S. S. Cox believed, “should be welcomed, not so much for what it is as for what it pretends to be. It is his first adventure beyond the line of force into the field of conciliation....

“To test the genuineness of this amnesty: five months have gone, but we see no signs of thousands of Southern citizens rushing to embrace this amnesty. Indeed, it is conceded that the rebellion is now more formidable than ever.” There was no genuine movement toward the restoration of the seceded States. He would not take the oath of allegiance and swear support of the negro policies. How could Southern men be expected to take the oath? Its terms provoked or irritated them still more. The structure, he declared, was built on the Emancipation Proclamation.

The bill of Mr. Davis had the same defects. That, too, was based upon the one tenth system and the policy of forced emancipation. “In some of its features,” he said, “it is an improvement upon the rickety establishment proposed by the President.

“... The emancipation act of the gentleman [Lincoln] can never be reconciled with the normal control of the States over their domestic institutions, so all oaths to sustain the same are oaths to subvert the old governments, Federal and State.... The President’s plan, therefore, whether intended or not, is an oath to encourage treason, and the plan of the gentleman from Maryland is a plan to consummate revolution.

“... If his [the President’s] plan of making one tenth rule in the States should succeed, then he will have ready at hand the electoral votes of Florida, Arkansas, Louisiana, Tennessee, North Carolina, and other States. He began this business in Florida the other day, and the blood which flowed at Olustee is the result of this scheme of personal ambition!

“There is a sort of odium historicum,” proceeded Mr. Cox, “attached to all political test oaths.... They have been the bane and foil of good government ever since bigotry began and revenge ruled. You cannot make eight million people, nearly all in revolt at what they regard as the detestable usurpations of abolition, forswear their hatred to abolition. You force by this oath the freed negro into the very nostrils of the Southern man, whose submission to law you seek.

“The conditions of pardon only inflame but do not quench rebellion....

“We may yet change the war from the diabolical purposes of those in power, by changing that power to other hands, and we are not ready to sever our Union while that hope remains.”

Precedents and analogies from both ancient and contemporary history were cited to demonstrate the folly of attempting to hold the South in her place by force. These together with censure of the Administration and criticism of the dominant party in Congress made up a great part of Mr. Cox’s very long speech.^[328]

Representative Boutwell, of Massachusetts, referring, May 4, to the remarks of his colleague, Mr. Ashley, of the committee which reported the bill, observed that “since this rebellion opened the Thirty-seventh Congress commenced its existence and ceased to exist; that this Congress is now closing the fifth month of its First Session, and that up to this time no efficient, indeed no legislative steps whatever have been taken by which the Executive is to be guided in the affairs of the people occupying the territory that has been reclaimed from rebel domination. Under these circumstances I think it due to the country that this House, at least, should do nothing which conveys any reflection upon his policy unless that policy be clearly and manifestly in contravention of the Constitution or of the well-ascertained and admitted principles of the Government.”

When the populous parts of Louisiana were torn from rebel domination, and the State of Arkansas indicated in various ways the growth of a sentiment of loyalty and returning allegiance to the General Government, the Executive had but one of three courses before him: either to be silent, to govern by military authority alone, or else to establish a civil government or at least to take initiatory steps toward such establishment. “It was unquestionably his right and duty, in the absence of all legislative action, to govern these territories as fast and as far as they were reclaimed by military power.”

He defended both the President and General Banks, who had for years been consistent advocates of liberty. He then announced himself in favor of the bill of Mr. Davis.

“The gentleman from Pennsylvania [Mr. Stevens],” continued Mr. Boutwell, “maintains, as I understand, that these States are out of the Union; that their territory is alien territory, and that we are making war against alien enemies. I do not admit either of these positions to be true. I feel quite sure that these eleven once-existing States are no longer States of the Union. The evidence on which I rely in support of this position is found first in the declaration made by the authorities of those States that they no longer exist as States of the American Union. Next, we find that for three years and more they have been resisting the authority of the Government and have been carrying on a war against it. It is absurd to say that States or people are a part of the Government under the Constitution, and entitled to constitutional rights and privileges, when they have been carrying on war against the Government.

“Nor do I admit that the people in the rebellious States are aliens. They are not of any other country, they are not of any other legal jurisdiction, they are within the jurisdiction of the Union. Three years ago they were a portion of this Union, and although they have been carrying on a war, that war has not thus far been successful, their independence has not been acknowledged by us, nor has it been recognized by any other nation. They, therefore, are not aliens. They are, to be sure, public enemies, but they are not alien enemies.

“... These States as political organizations have by their own will ceased to exist.... The existence of a State is a fact within the control of the people themselves, and cannot be influenced by any extraneous power whatever, and therefore these States have by the will of the people thereof as political organizations ceased to exist.”

Admitting that the Government of the United States had legal jurisdiction over this territory and over the people who occupied it, it was an absurdity, he declared, “to say that these States still exist and that the people there may without our consent elect officers and send Representatives to this body and Senators to the other branch of Congress.”

To the taunt of the Democrats that the war had been changed from a war to restore the Union to one for the purpose of emancipating the slave, Mr. Boutwell replied by a denial of the fact, but added that even if it were so, it was not the first instance of the sort in human history. Up to 1774 every American expected to preserve the old relations with England, yet within two years Independence was declared. The pending measure, he asserted, had not elicited marked attention in Congress nor any great interest throughout the country, yet in it lay the germ of a new civilization for half a continent.

The limitation of the elective franchise to white males did not meet his approval; for though the suffrage is not a natural, it is the highest political, right. Where the suffrage is denied to any large number of men, that community is never free from the danger of intestine commotion.

As South Carolina and Georgia were responsible for breathing into slavery the breath of life after it had everywhere been condemned, he would not have them again reappear in the Union. Florida did not deserve a place in the Union and, by giving the colored men local suffrage in that district, South Carolina, Georgia and Florida, he would invite the blacks thither as fast as they could be spared from the industries in which they were elsewhere engaged. He would not ask to extend this principle to loyal Northern or to border States with a negro population.^[329]

Mr. Pendleton, of Ohio, made by far the ablest Democratic argument against the proposed enactment. Its details as well as its general policy, he said, required examination. After stating quite fully the provisions of the bill, he continued:

The gentleman from Maryland [Mr. Davis] facetiously entitles it “a bill to guaranty to certain States whose governments have been usurped or overthrown a republican form of government.”