History of the Thirty-Ninth Congress of the United States Part 25

"Indeed, the main feature which distinguishes the Union under the Const.i.tution from the old Confederation is this: that whereas the old Confederation did deal with States directly, making requisitions upon them for supplies and relying upon them for the execution of its laws, the Const.i.tution of the United States, in order to form a more perfect Union, made its laws binding on the individual citizens of the several States, whether living in one State or in another. Congress, as the legislative branch of this Government, enacts a law which shall be operative upon every individual within its jurisdiction. It is binding upon each individual citizen, and if he resists it by force, he is guilty of a crime, and is punished accordingly, any thing in the const.i.tution or laws of his State to the contrary notwithstanding. But the States themselves are not touched by the laws of the United States or by the Const.i.tution of the United States. A State can not be indicted; a State can not be tried; a State can not be hung for treason. The individuals in a State may be so tried and hung, but the State as an organization, as an organic member of the Union, still exists, whether its individual citizens commit treason or not."

Mr. Raymond subsequently cited some of the consequences which he thought must follow the acceptance of the position a.s.sumed by Mr.

Stevens. "If," said Mr. Raymond, "as he a.s.serts, we have been waging war with an independent Power, with a separate nation, I can not see how we can talk of treason in connection with our recent conflict, or demand the execution of Davis or any body else as a traitor. Certainly if we were at war with any other foreign Power, we should not talk of the treason of those who were opposed to us in the field. If we were engaged in a war with France, and should take as prisoner the Emperor Napoleon, certainly we could not talk of him as a traitor or as liable to execution. I think that by adopting any such a.s.sumption as that of the honorable gentleman, we surrender the whole idea of treason and the punishment of traitors. I think, moreover, that we accept, virtually and practically, the doctrine of State sovereignty, the right of a State to withdraw from the Union, and to break up the Union at its own will and pleasure.

"Another of the consequences of this doctrine, as it seems to me, would be our inability to talk of loyal men in the South. Loyal to what? Loyal to a foreign, independent Power, as the United States would become under those circ.u.mstances? Certainly not. Simply disloyal to their own Government, and deserters, or whatever you may choose to call them, from that to which they would owe allegiance, to a foreign and independent State.

"Now, there is another consequence of the doctrine which I shall not dwell upon, but simply suggest. If that confederacy was an independent Power, a separate nation, it had the right to contract debts; and we, having overthrown and conquered that independent Power, according to the theory of the gentleman from Pennsylvania, would become the successors, the inheritors, of its debts and a.s.sets, and we must pay them."

Mr. Raymond set forth his theory of the conditions and relations of the late rebel States in the following language: "I certainly do not think these States are to be dealt with by us as provinces--as simply so much territory--held to us by no other ties than those of conquest.

I think we are to deal with them as States having State governments, still subject to the jurisdiction of the Const.i.tution and laws of the United States, still under the const.i.tutional control of the National Government; and that in our dealings with them we are to be guided and governed, not simply by our sovereign will and pleasure as conquerors, but by the restrictions and limitations of the Const.i.tution of the United States, precisely as we are restrained and limited in our dealings with all other States of the American Union."

In answer to the question how we are to deal with the late rebel States, Mr. Raymond remarked: "I think we have a full and perfect right to require certain conditions in the nature of guarantees for the future, and that right rests, primarily and technically, on the surrender we may and must require at their hands. The rebellion has been defeated. A defeat always implies a surrender, and, in a political sense, a surrender implies more than the transfer of the arms used on the field of battle. It implies, in the case of civil war, a surrender of the principles and doctrines, of all the weapons and agencies, by which the war has been carried on. The military surrender was made on the field of battle, to our generals, as the agents and representatives of the Commander-in-chief of the armies of the United States.

"Now, there must be at the end of the war, a similar surrender on the political field of controversy. That surrender is due as an act of justice from the defeated party to the victorious party. It is due, also, and we have a right to exact it, as a guarantee for the future.

Why do we demand the surrender of their arms by the vanquished in every battle? We do it that they may not renew the contest. Why do we seek, in this and all similar cases, a surrender of the principles for which they fought? It is that they may never again be made the basis of controversy and rebellion against the Government of the United States.

"Now, what are those principles which should be thus surrendered? The principle of State sovereignty is one of them. It was the corner-stone of the rebellion--at once its animating spirit and its fundamental basis. Deeply ingrained as it was in the Southern heart, it must be surrendered. The ordinances in which it was embodied must not only be repealed, the principle itself must be abandoned, and the ordinances, so far as this war is concerned, be declared null and void, and that declaration must be embodied in their fundamental const.i.tutions."

The speech was here interrupted by Mr. Bingham, who insisted that the adoption of the principle in the State const.i.tutions would not be sufficient guarantee. Adoption in the Const.i.tution of the United States was essential to its permanent effective force.

Mr. Raymond thought the Const.i.tution of the United States as plain as possible in its declaration against the doctrine of State sovereignty.

If any more explicit denial could be got into the Const.i.tution, he would favor it.

"Another thing," said Mr. Raymond, "to be surrendered by the defeated rebellion is the obligation to pay the rebel war debt. We have the right to require this repudiation of their debt, because the money represented by that debt was one of the weapons with which they carried on the war against the Government of the United States.

"There is another thing which we have the right to require, and that is the prohibition of slavery. We have the right to require them to do this, not only in their State const.i.tutions, but in the Const.i.tution of the United States. And we have required it, and it has been conceded. They have also conceded that Congress may make such laws as may be requisite to carry that prohibition into effect, which includes such legislation as may be required to secure for them protection of their civil and personal rights--their 'right to life, liberty, and the pursuit of happiness.'"

Mr. Spalding having inquired whether there was any limit to the right to make these requisitions, except the good judgment of Congress, Mr.

Raymond answered:

"My impression is that these requisitions are made as a part of the terms of surrender which we have a right to demand at the hands of the defeated insurgents, and that it belongs, therefore, to the President, as Commander-in-chief of the army and navy of the United States, to make them, and to fix the limit, as to what they shall embrace."

By way of setting forth the opinions of the "Radicals" in as strong a light as possible, Mr. Raymond said: "It may be for the welfare of this nation that we shall cherish toward the millions of our people lately in rebellion feelings of hatred and distrust; that we shall nurse the bitterness their infamous treason has naturally and justly engendered, and make that the basis of our future dealings with them.

Possibly we may best teach them the lessons of liberty, by visiting upon them the worst excesses of despotism. Possibly they may best learn to practice justice toward others, to admire and emulate our republican inst.i.tutions, by suffering at our hands the absolute rule we denounce in others. It may be best for us and for them that we discard, in all our dealings with them, all the obligations and requirements of the Const.i.tution, and a.s.sert as the only law for them the unrestrained will of conquerors and masters."

In contrast with this, he placed what he supposed to be a different policy: "I would exact from them, or impose upon them through the const.i.tutional legislation of Congress, and by enlarging and extending, if necessary, the scope and powers of the Freedmen's Bureau, proper care and protection for the helpless and friendless freedmen, so lately their slaves. I would exercise a rigid scrutiny into the character and loyalty of the men whom they may send to Congress, before I allowed them to partic.i.p.ate in the high prerogative of legislating for the nation. But I would seek to allay rather than stimulate the animosities and hatred, however just they may be, to which the war has given rise. But for our own sake as well as for theirs, I would not visit upon them a policy of confiscation which has been discarded in the policy and practical conduct of every civilized nation on the face of the globe."

Mr. Raymond having closed his speech, it was moved that the Committee of the Whole should rise, but the motion was withdrawn to allow Mr.

Jenckes, of Rhode Island, five minutes for reply. He said: "The gentleman states, and properly, that every act or ordinance of secession was a nullity. Undoubtedly it was. Upon that question of law we do not disagree. But he seems to me to overlook entirely what was the state of facts from the time of the pa.s.sage of the ordinances of secession until the time of the surrender of Lee's army. During that period what were the relations which all that territory--I will not use the term States, but all that territory--between the Potomac and the Rio Grande sustained to the Government of the United States? Who could see States there for any purpose for which legislation was required by the Const.i.tution of the United States?

"At the time of the pa.s.sage of the ordinance of secession, States were organized there, in existence, in action, known to the Const.i.tution and the const.i.tutional authorities under it. But were they loyal? Did they obey the Const.i.tution of the United States? This is a question that needs no answer other than that which is conveyed to every mind by the recollection of the last four years of war, with their expenditure of treasure and blood. Those States were not destroyed, in the technical language of the law--they simply died out. As their Governors pa.s.sed out of office, as the terms of their legislatures expired, who knew those facts? None but themselves. And yet, behind this grand cordon of armies, stretching from here to the Rio Grande, there were States in existence, organized as States, but States in rebellion, occupying the territory belonging to the people of the United States. They were not acting in concert with this Government, but against it. That, Mr. Chairman, is a matter of fact. My eyes are not dimmed or blinded by the parchment upon which const.i.tutions or laws are written. I, like the men who carried the bayonets and planted the cannon, recognize the fact that was before us during all this time. There was a state of rebellion. There were in that part of our territory no States known to our Const.i.tution or the laws that we enact, or the officers whose duty it is to enforce those laws.

"I recognize, too, the next fact. Bear in mind, I am simply stating now what I conceive to be the facts. The question as to what may be the law can be reserved for discussion on another occasion. I recognize fully the duties of the Executive. And it was the duty of the President of the United States, as the head of the civil and military power of this great republic--not 'empire;' G.o.d forbid that this country should ever be so designated with applause or even with toleration--to beat down armed opposition to it, whether it came from a foreign power or from domestic insurrection. That was the duty of the President, and he recognized it; and it was not the duty of any one in this Congress to gainsay it. It was written on the face of the Const.i.tution that the President was to see that the laws should be faithfully executed, and the power of this republic maintained, and he did so.

"The next fact--the fact which seems to me to be the one most pertinent for consideration now--is that the military power which was opposed to this Government has been destroyed. It was the duty of the Executive to see that this was done, and to report to the Congress of the United States that it has been done. But what then? Then there comes the third question of fact, intimately connected with the last, and hardly separable from it, because it requires the immediate action of the Executive and of Congress. All the power that existed in the shape of Confederated States behind rebel bayonets and fortifications has fallen to the earth. The territory which these States in rebellion occupied was the property of the people of the United States, and never could be taken from us. I hold it to be a question of public law, worthy of consideration by the representatives of the American people, by the President and the Administration generally, to ascertain what existed in the shape of civil const.i.tutions and laws behind the military government that has been overthrown. I hesitate not to say, here or elsewhere, that the Executive of this Government has done his duty in this matter. All conquering nations, when they overcome a rebellious people by overthrowing their military power, look, as did the Government of Great Britain when it had overcome the mutiny in India, to see what government of a civil kind has existed or may exist from custom among the people who are conquered. I see no reason in this view to discriminate between the argument of the gentleman from Pennsylvania and the argument of the gentleman from New York. It seems to me, that if they will look at the particular questions which are now before us, and which require our action, the differences would be in terms and not in substance."

The people of the predominant party generally acquiesced in the opinion of Mr. Jenckes, as expressed in the conclusion of his remarks as above presented. They conceived that the difference between the various views of the whole question was "one of details and not of essence." The question of reconstruction was purely practical. All shades of opinion in the Republican party blended in this: that the States in question were not to be restored until satisfactory pledges were given to the United States. All speculation or attempt at argument in reference to their abstract condition was consequently superfluous--"a pernicious abstraction," in the language of Mr.

Lincoln.

If some were not prepared to accept the deductions of Mr. Stevens, yet accepting the logic of Mr. Raymond, they would be carried almost as far. The latter held that the citizens of those States were defeated insurgents who must submit to any conditions of surrender imposed by the victorious commander. Certain concessions could be rightfully demanded as parts of their surrender and conditions of their restoration. Their acquiescence had been required in a const.i.tutional amendment affecting the great social and industrial interests of Southern society. After this none could deny the right, whatever might be the expediency, of requiring their a.s.sent to other amendments bearing upon the political structure of the Southern States.

Some of the predominant party were willing to stop short in their demands upon the rebel States with requiring acceptance of the emanc.i.p.ation amendment, repudiation of the rebel debt, legal protection of freedmen, and revocation of the ordinances of secession.

The majority, however, were disposed to go still further, and demand other conditions and guarantees which should become a part of the fundamental law of the land. This was the practical work of reconstruction for which the Joint Committee of Fifteen was preparing the way, and upon which Congress was soon to enter.

CHAPTER XIV.

THE BASIS OF REPRESENTATION--IN THE HOUSE.

First work of the Joint Committee -- The joint resolution proposing a const.i.tutional amendment -- Mr. Stevens' reasons for speedy action -- Protracted discussion commenced -- Objections to the bill by Mr. Rogers -- Defense by Mr.

Conkling -- Two other modes -- How States might evade the Law -- Not a finality -- Wisconsin and South Carolina -- Amendment for Female Suffrage proposed -- Orth on Indiana and Ma.s.sachusetts -- Obscuration of the sun -- More Radical remedy desired -- A Kentuckian gratified -- Citations from the Census -- Premium for Treason -- White Slaves -- Power to amend well-nigh exhausted -- Objections to the Suffrage Basis -- "Race" and "Color" ambiguous -- Condition of the Question -- Recommitted -- Final pa.s.sage.

Although the Joint Committee of Fifteen were a.s.siduous in their attention to the work a.s.signed them, it was not until the 22d of January, 1866, that they were ready to make a partial report and recommend a practical measure for the consideration of Congress.

On that day Mr. Fessenden, of the Senate, and Mr. Stevens, of the House of Representatives, brought before those bodies respectively a partial report from the committee, recommending the pa.s.sage of the following joint resolution:

_Resolved by the Senate and House of Representatives of the United States of America in Congress a.s.sembled_, (two-thirds of both houses concurring,) That the following article be proposed to the Legislatures of the several States as an amendment to the Const.i.tution of the United States, which, when ratified by three-fourths of the said Legislatures, shall be valid as part of said Const.i.tution, namely:

ARTICLE--. Representatives and direct taxes shall be apportioned among the several States which may be included within this Union according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed: _Provided_, That whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons of such race or color shall be excluded from the basis of representation.

In the Senate this subject was laid over, and was not reached for several days, as the Freedmen's Bureau Bill was then under discussion.

The subject was pressed upon the attention of the House for immediate action. Mr. Stevens had no intention to make a speech, since the question had been under consideration by every member for the last six weeks. He remarked, however: "There are twenty-two States whose Legislatures are now in session, some of which will adjourn within two or three weeks. It is very desirable, if this amendment is to be adopted, that it should go forth to be acted upon by the Legislatures now in session. It proposes to change the present basis of representation to a representation upon all persons, with the proviso that wherever any State excludes a particular cla.s.s of persons from the elective franchise, that State to that extent shall not be ent.i.tled to be represented in Congress. It does not deny to the States the right to regulate the elective franchise as they please; but it does say to a State, 'If you exclude from the right of suffrage Frenchmen, Irishmen, or any particular cla.s.s of people, none of that cla.s.s of persons shall be counted in fixing your representation in this House. You may allow them to vote or not, as you please; but if you do allow them to vote, they will be counted and represented here; while if you do not allow them to vote, no one shall be authorized to represent them here; they shall be excluded from the basis of representation.'"

As indicative of the apparent harmony of sentiments prevailing on the question, Mr. Wilson said that the Committee on the Judiciary had determined to report a proposition substantially identical with that offered by Mr. Stevens.

It was deemed important to have the joint resolution pa.s.sed as soon as possible, that it might go before the State Legislatures then in session for their ratification before their adjournment. The member who had the measure in charge desired, after one or two speeches on either side, to have the question put to vote, and have the resolution pa.s.sed before the sun went down. Such action, however, seemed to the House too hasty, and a discussion of the measure was entered upon, which ran through many days.

Mr. Rogers, a member of the committee, offered a minority report, and addressed the House in opposition to the proposed amendment of the Const.i.tution. He thus presented his view of the object of the measure proposed: "It appears to have in its body, in its soul, and in its life only one great object and aim; that is, to debase and degrade the white race, and to place upon a higher footing than the white men are placed, under the Const.i.tution, this African race. It is a proposition to change the organic law of the land with regard to one of the fundamental principles which was laid down by our fathers at the formation of the Const.i.tution as an axiom of civil and political liberty, that taxation and representation should always go together.

If gentlemen will examine this proposed amendment of the Const.i.tution, they will see that it is in violation of that great doctrine which was proclaimed by the fathers of the republic when they enunciated the Declaration of Independence, and protested against the tyranny and despotism of England, because she attempted to tax the people of the colonies without allowing them representation in the councils of the kingdom. The amendment now under consideration proposes the very same identical thing that the Parliament of England proposed when it attempted to inflict upon the American colonies taxation without allowing the people of the colonies to have representatives in the Parliament of England to represent them upon the question whether they should be taxed by the mother country or not.

"The first objection I have to the pa.s.sage of this joint resolution is, that it is violative of the main principle upon which the Revolutionary War was conducted, and which induced our fathers to enter the harbors of Boston and New York and throw the tea into the water. Because the British people attempted to inflict taxation upon them with regard to that tea, and refused to allow them representation in the Parliament of England, our fathers rebelled against their mother country. What has come over the fortunes and happiness of the people of this country that the great principle of the Const.i.tution should now be violated, that principle for which our fathers spilt their blood to sustain, the great axiom of American liberty, that taxation never should be imposed upon a people unless that people have a corresponding representation? If this amendment to the Const.i.tution should be carried into effect, it will prevent any State, North or South, from allowing qualified suffrage to its colored population, except upon forfeiture of representation; and if qualified suffrage should be allowed to the colored population of any State in this Union, on account of race of color, and but one single negro should be deprived of his vote by failure to meet the requirements of the qualification imposed, that State would be denied representation for the whole of that colored population--men, women, and children.

"More than that: this bill attempts, in an indirect manner, to have pa.s.sed upon, by the Legislatures of the different States, a question which the party in power dare not boldly and openly meet before the people of this country, because there can be but one object lying at the foundation of this bill--an object which has been explained and expatiated upon in this House--and that object, as I have said, is, through the Federal power, to force the States to adopt unqualified negro suffrage, by holding over them the penalty of being deprived of representation according to population.

"But I object to this joint resolution upon another ground--upon the same ground that I objected to the pa.s.sage of the Negro Suffrage Bill for the District of Columbia--without consulting the people. It has been said in this country that all power emanates from the people. And I say that to submit this grave question to the consideration and decision of partisan Legislatures in the different States--Legislatures which were elected without any regard to this question--is violative of the great principles which lie at the foundations of the liberties of this country; that no organic law, affecting the whole people, should be pa.s.sed before submitting it to the people for their ratification or rejection. Now this joint resolution proposes simply to submit this amendment for ratification to the Legislatures of the different States. The Legislatures are not the States; the Legislatures are not the people in their sovereign capacity; Legislatures are not the source from which all power emanates. But the people, the _sacred people_, in the exercise of their sovereign power, either at the ballot-box or in conventions, are the only true and proper forum to which such grave and serious questions should be submitted.

"I maintain that the Const.i.tution of the United States, as it now exists, is not as liberal toward the Southern States, now that slavery has been abolished, as it was before the abolition of slavery. Why, sir, in the days of the past, under our Const.i.tution, the Southern States have been allowed a representation for a population that was not cla.s.sed as citizens or people; they were allowed a representation for people who had no political _status_ in the State; persons who were not ent.i.tled even to exercise the right of coming into a court of civil justice as a plaintiff or defendant in the prosecution or defense of a suit.

"Now, after the raging fires of war have swept from the domain of every State in the South the pernicious inst.i.tution of slavery; after the result has been that every slave has received his freedom; after the slaves have gained more by the success of this war than any other cla.s.s of people in the United States, white men, men who are the representatives of the white race, come here proposing to compel the States, on pain of being deprived of a portion of their representation, to allow all the negroes within their limits to vote, without regard to qualification or any thing else, while under the same provision the State may, by its organic law, impose qualifications and conditions upon the exercise of the right of suffrage by the white population. The proposed amendment to the Const.i.tution undertakes to consolidate the power in the Federal Government. It throws out a menace to the States, and the inevitable result of the pa.s.sage would be to induce every State in the Union to adopt unqualified negro suffrage, so as not to deprive them of the great and inestimable right of representation for that cla.s.s of population in the halls of the legislation of the United States."

Mr. Conkling, also a member of the Reconstruction Committee, made an argument in favor, of the proposed amendment: "Emanc.i.p.ation vitalizes only natural rights, not political rights. Enfranchis.e.m.e.nt alone carries with it political rights, and these emanc.i.p.ated millions are no more enfranchised now than when they were slaves. They never had political power. Their masters had a fraction of power as masters. But there are no masters now. There are no slaves now. The whole relationship in which the power originated and existed is gone. Does this fraction of power still survive? If it does, what shall become of it? Where is it to go?

"We are told the blacks are unfit to wield even a fraction of power, and must not have it. That answers the whole question. If the answer be true, it is the end of controversy. There is no place, logically, for this power to go, save to the blacks; if they are unfit to have it, the power would not exist. It is a power astray, without a rightful owner. It should be resumed by the whole nation at once. It should not exist; it does not exist. This fractional power is extinct.