quisite provisions to connect it with the Union. When that government is destroyed, when the ligature is broken, when there are no provisions whatever that connect it with the United States, it ceases to be a State of the Union from necessity. I do not say that its people pass out from under the jurisdiction of the Government; it belongs to the Union, and its people are under the authority of the Union; but as a State having rights in the Union-rights, for instance, in this Congress-when it has ceased to connect itself with the Government by its own act or in any way, it is at an end for the time being, because something more is necessary than a bare organized existence. That is the position that I assume, and I have not been able to see but that it is correct.

"Now, will the Senator deny, will any one deny, that there has been a period and a long period during which there was no connection between these Confederate States and the Government of the United States? Have not years elapsed during which no such connection existed? Was not the form of government which bound them to the Union entirely destroyed? Was not the connection obliterated? Were not all their people in rebellion? Was there any thing by which any of those States could connect itself with the Government with which it had been formerly connected, and if not, what is necessary in order to bring it back? Is it not necessary that it should be recognized by this Government? Is it not necessary that it should have a constitution which does connect it with this Government? Is it not necessary that it should place itself in a position to discharge its duties toward this Government? And when it has done that, must it not apply to the Government for admission, for reinstatement in the Union?

"This question has been argued, and argued by authority, as if we had nothing to say about it; as if these people were back again simply because they had made State constitutions. How do we know it? What proof have we? I want an answer.

"Gentlemen have been talking here from time to time and in the other House about the great abuse that these States were not admitted to representation while the Government was going on to tax them. Sir, the arms that were raised against us were never laid down until last April. From that time to December Congress was not in session. They were under the control of the military power. We came to gether on the first Monday of December. There had been an exhausting war, four years of deadly struggle; hundreds of thousands slain, hundreds of millions spent; a war more savage, in my judginent, on the part of the enemy we had to encounter, than has been known in modern times; in which the most savage hate was exhibited against every thing that was not of the Confederates, which was distinguished, remarkable, for its character, so distinct from all those wars that have marked modern periods. VOL. VI.-11

We came together in December, and certain men presented themselves claiming to be admitted as Senators and as Representatives upon these floors. We had not been together thirty days before gentlemen contended here that they were entitled to admission upon an equality with ourselves and as parts of the governing power. It is not now ninety days since this Congress met; and before the expiration of ninety days, after this war of four years of the character that existed and with denunciations of the most bitter kind from all that people, we are told that we are perpetrating the most gross injustice because they are not already here in these seats as Senators and Representatives in Congress, and that our legislation is substantially good for nothing because they are not here.

"It is a most remarkable fact in this connection that not only have we not been together ninety days when we are called upon to admit these Senators and these Representatives, but we are called on to decide that the condition of that people is such as to render it safe, when the President himself, who calls upon us to do it, has not withdrawn his suspension of the writ of habeas corpus throughout that territory, but keeps his army in that territory, and when all the generals and himself at the head of all the generals tell us that it is unsafe to withdraw it, that they cannot be left to themselves, and that the army must remain and they be kept under military law.

"Mr. President, this strikes me as somewhat singular; and I say this because I want the country to understand it. Is no time to be allowed? Here, it is said, are eight million people; here is a territory embracing I do not know how many million square miles; here have been eleven States in rebellion; here has been a war of four years. Congress meets; the question is to be submitted to that Congress; and gentlemen talk here and denounce it, and the President himself denounces it, and the newspapers denounce it, and the Democracy denounce it; all raise their cry against us because within ninety days, when the President himself, as Commander-in-chief of the army, does not choose to withdraw the army from that territory, we have not put its Representatives and Senators in these seats to govern for themselves and to govern us. I allude to this fact simply for the purpose of showing how utterly false are the accusations made against Congress, come from what quarter they may, how utterly unreasonable it is to suppose that a question of this kind is to be settled in such a hurry.

66

Now, sir, I have been speaking simply of the power of Congress; but it is a very different question when you come to consider what it is best to do. I assert the power in its fullest extent; I assert that by the civil war they lost all the rights which I have enumerated, and we acquired those which I have specified. I assert that they placed themselves in a position in

which they were not connected with this Union as States. I assert that they have many things to do in order to regain that position. I assert that in the mean time we have a right to govern them, govern them as Christian men and as statesmen, but to govern them because they placed themselves in a position to render it absolutely necessary that we should do so; and I assert, moreover, that they cannot come back here to occupy these seats or scats in the other House until we-no matter whether it is done by joint or several authority, so that it is conferred by Congress-be satisfied ourselves and decide that they are entitled to occupy these seats again; and that we have a right to take all the time necessary in order to give ourselves entire satisfaction on that subject, and they have no right to complain that in the mean while they are taxed without being represented, because they brought it upon their own heads. I say, moreover, that the interests and safety of this country require that we should be entirely convinced of what is due to ourselves and our constituents, and to the safety of all, before we proceed to the examination of the question of credentials and qualifications. But having said that, it is another question about what we should do; I have been talking about the right. "I hold, then, sir, that it is best for all that as soon as possible, as soon as it can be done with any reasonable show of safety to ourselves and to the Government of this country, these States should be established in their original positions, that Senators should sit here in this branch and Representatives in the other, and that we should proceed as best we may to govern the whole country, a Government with the assent of all, all being represented. But what I wish to enter my dissent to is the doctrine that we cannot and ought not to deliberate on the subject, in our own way, in our own time, and that while we are doing it we should be denounced and the committee of which I am a member be denounced as an irresponsible tribunal, a central power; some power created to take legislation out of its proper channels, and that the majority of the Congress should be held up to the country, as it has been by gentlemen on the other side of the House, to say the least of it, and I think also impliedly by my honorable friend from Wisconsin himself, as perpetrating injustice day by day every day that passed without seeing men back in these vacant seats, or the simple question of their credentials under consideration; that this was an outrage upon States, States lately at war, States which up to this day have never sent us their constitutions or made any request whatever in proper form to be admitted or readmitted to their original condition."

Mr. Sherman, of Ohio, followed, saying: "If the meaning of the resolution is that, as a matter of convenience in the discharge of our duties, the Senators and Representatives ought to act in concert with each other in legislating upon and in discussing all propositions affecting the

right of States to representation, surely it is a reasonable proposition. We have already acted in concert at the beginning of this session by creating a joint committee as an organ of both bodies to confer with each other and to communicate to each House separately their deliberations. We have often before recognized the propriety of acting through joint committees on questions of great importance, when the concurrence of both Houses is needed, and when a free conference will probably tend to produce an agreement. Therefore, if this is the purpose of this resolution, it is a very simple and plain one, and obviously defensible.

But, Mr. President, this resolution goes further. It asserts, and it was intended to assert, that with Congress, and with Congress alone, rests the duty of defining when a State once declared to be in insurrection shall be admitted to representation, in this and the other House of Congress. This is a proposition of constitutional law; and on this point I am glad to say that there has been no difference of opinion among us until this session of Congress. This question has been three times decided in the Senate. It has been decided by the unanimous report of our Judiciary Committee. It has not been controverted in this body until within a very few days, or until during the present session of Congress. At the last session a unanimous report was made from the Judiciary Committee, composed of some of the ablest lawyers in the Senate, in which this doctrine is, in my judgment, more clearly and distinctly expressed than in the resolution now before us. I cannot see why any one who gave his deliberate judgment to that proposition can oppose this. The honorable Senator from Maine read a portion of this report on Friday, but it will bear repetition, and I will now read it:

in Louisiana having rebelled against the authority of The persons in possession of the local authorities the United States, and her inhabitants having been declared to be in a state of insurrection in pursuance of a law passed by the two Houses of Congress, your committee deem it improper for this body to admit to seats Senators from Louisiana, till by some joint action of both Houses there shall be some recognition of an existing State government acting in harmony with the Government of the United States and recognizing its authority.

"If this is law, how can any Senator vote against the pending proposition, unless it is for reasons not involving the merits of that proposition?

"It will be remembered that a bill came to the Senate, passed by the House of Representatives guaranteeing to the seceded States a republican form of government, commonly known as the Wade and Davis bill. It was antagonized here by various propositions, and among the rest by a proposition offered by the honorable Senator from Missouri (Mr. Brown). That bill contained many sections intended to provide a mode by which these eleven States might, when the rebellion was suppressed within their limits, be restored to their old places in the Union.

The proposition offered by Mr. Brown, as a substitute for the bill, I will now read; and I invite the attention of Senators to the distinct assertion of the very doctrine that is proclaimed in this resolution:

That when the inhabitants of any State have been declared in a state of insurrection against the United States by proclamation of the President, by force and virtue of the act entitled "An act to provide for the collection of duties on imports, and for other purposes," approved July 13, 1861, they shall be, and are hereby declared to be, incapable of casting any vote for electors of President or Vice-President of the United States, or of electing Senators or Representatives in Congress, until said insurrection in said State is suppressed or abandoned, and said inhabitants have returned to their obedience to the Government of the United States.

"Then mark these words:

nor until such return to obedience shall be declared by proclamation of the President, issued by virtue of an act of Congress, hereafter to be passed, authorizing the same.

"This proposition was introduced in antagonism to the proposition then before the Senate, as a substitute for it, to cover the whole ground, and I am told was framed by our fellow-Senator now dead, Judge Collamer. After debate it was adopted as a substitute, by the close vote of 17 yeas to 16 nays. Among the yeas were every Democratic member of this Senate and some of the Republicans. All the nays were Union Senators, friends of the original bill, including many classed as radicals. I give the vote in full:

YEAS-Messrs. Brown, Carlile, Cowan, Davis, Doolittle, Grimes, Henderson, Hendricks, Johnson, Lane of Indiana, McDougall, Powell, Richardson, Riddle, Saulsbury, Trumbull, and Van Winkle-17. NAYS-Messrs. Chandler, Clark, Conness, Hale, Harlan, Lane of Kansas, Morgan, Morrill, Pomeroy, Ramsey, Sherman, Sprague, Sumner, Wade, Wilkinson, and Wilson-16.

"It may be said that these gentlemen voted for this proposition for the purpose of defeating a more offensive one: and if the vote rested

here that would be a reasonable explanation. But in order to point the significance of this vote, the honorable Senator from Illinois, the chairman of the Judiciary Committee (Mr. Trumbull), called attention to the importance of the question, and said he wanted a definite vote upon this proposition by itself. He stated its importance, the effect of the principle involved, and asked for the yeas and nays on the passage of the bill as amended, in order, as he said, to ascertain the judgment of the Senate upon this distinct proposition. The bill then contained nothing but what I have read to you, and the vote was taken by yeas and nays, and

stood as follows:

YEAS-Messrs. Brown, Chandler, Conness, Doolittle, Grimes, Harlan, Harris, Henderson, Johnson, Lane of Indiana, Lane of Kansas, McDougall, Morgan, Pomeroy, Ramsey, Riddle, Sherman, Sprague, Sumner, Ten Eyck, Trumbull, Van Winkle, Wade, Wilkinson, and Wilson-26.

NAYS-Messrs. Davis, Powell, and Saulsbury-3. "So that by this deliberate vote, after de

bate, after the attention of the Senate had been called to the importance of the proposition by the judicial organ of this body, at a time when there was no excitement and no party feeling here on this proposition, the doctrine we are discussing was asserted by an almost unanimous vote of the Senate. It seems to me that with this declaration of the opinion of the Senate before us, made when it was not influenced by party feeling or party excitement, we ought not to doubt the correctness of the pending resolution, not near so strong in its tenor or language. It ought not to be resisted by any one who thus committed the Senate to that proposition against a measure that would have organized a system to reconstruct the seceding States.

66 But, Mr. President, I need not depend upon the vote of the Senate or upon the authorities, because I think, if you test this proposition by the simplest principles of constitutional law, there can appear no doubt that Congress has the sole and exclusive power over this subject. The Constitution of the United States gives to the President of the United States no legislative power except as a part of the law-making powHe is an executive officer, with no legislative power except that which he exercises in connection with us. The Constitution of the United States confers upon Congress not only the power to raise and support armies, to appropriate money therefor, and to provide and maintain a navy, but―

er.

To make rules for the government and regulation of the land and naval forces.

"And among the residuary powers conferred upon Congress is that important one

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

"Therefore, where a power is conferred upon the President, and the legislative power is necessary in order to carry that power into effect, Congress alone possesses the power to arm the Executive with the necessary authority to execute the laws. Upon Congress alone rests all the residuary powers; and therefore it is that the power of Congress follows our flag wherever it floats. Our flag may go round the world, to South America, to Italy, to China; it may go into any foreign country as it did in Mexico; it may go into the Southern States subduing a rebellion, and wherever it goes the legislative power of Congress goes with it. It regulates and governs the army, and the President has nothing to do but to execute the will of Congress and the Constitution of the United States.

"It seems, therefore, testing it by reason, that this power must rest in Congress. The doctrine is very strongly stated by Story, in his Commentaries on the Constitution, in very much the language I have used; and he says, in speaking of the powers of Congress, that

the jurisdiction and power of the Government of the United States follow our flag or our army into a foreign country, and Congress may make rules and regulations for the government of the army of the United States in a foreign country as well as in our own, and it is the duty of the President to execute them. It is true that, in the absence of rules and regulations prescribed by Congress, the President may make such regulations as are absolutely necessary for the government of the army wherever it is, but it is only as a part of his duty to execute the general laws. If Congress chooses to step in and prescribe the mode and manner in which these powers shall be exercised, he is bound by his oath to observe such rules and regulations. I conclude, therefore, that as Congress has declared eleven States to be in a state of insurrection, as it is necessary now to pass some plan or law by which these States may be restored to their old place in the Union, Congress has the undoubted legislative power to prescribe the terms, conditions, and tests by which their loyalty and obedience to the law may be adjudged.

"But, Mr. President-and I say it with great deference to the committee who reported it-I do not believe the bare assertion of this power tends to promote the object stated by the resolution itself. The object of this resolution is stated to be to close agitation upon a question which seems likely to disturb the action of the Government, as well as to quiet the uncertainty which is agitating the minds of the people of the eleven States which have been declared to be in a state of insurrection. If this resolution would tend to promote these great objects, I would vote for it much more cheerfully than I will; but I regard it as a mere straw in a storm, thrown in at an inopportune moment; the mere assertion of a naked right which has never yet been disputed, and never can be successfully; a mere assertion of a right that we have over and over again asserted. The only doubt I ever had about the resolution was the wisdom of introducing it and passing it under the previous question in one House at a moment when there was undue or unusual excitement in the public mind. My idea is that the true way to assert this power is to exercise it, and that it was only necessary for Congress to exercise that power in order to meet all these complicated difficulties. This resolution does not provide for the contingencies that have happened. Let me state the case. Suppose the two Houses of Congress cannot agree upon a plan of reconstruction, as it is very obvious we shall have difficulty in doing. Opposition here is already developed to the constitutional amendment as part of the plan agreed upon, in quarters at least to me unexpected, and it is very doubtful whether we can agree by the requisite majority upon this leading idea of a change of the Constitution. Suppose the two Houses of Congress cannot agree with each other, what then? Must these

eleven States stand in their present isolated condition beyond the pale of civil law until the two Houses can agree upon some proposition?

"Mr. President, in my judgment the real difficulty in this whole matter has been the unfortunate failure of the executive and legislative branches of the Government to agree upon a plan of reconstruction. If at the last session we had provided a law, reasonable in itself, proper in its provisions, by which these States might have been guided in their efforts to come back into the Union, that would have been an end of this controversy; but unfortu nately (and I am not here either to arraign the living or the dead) there was a failure to agree. Earlier in this war, during the Thirty-seventh Congress, a gentleman now in his grave, and whose eulogy was so fitly pronounced the other day in the House of Representatives by his colleague here, Henry Winter Davis, prepared a bill to meet this exigency. He was not then a member of Congress. He brought that bill to me. It was a bill to guarantee to each State a republican form of government. The provisions of the bill pointed out a plan by which these States, then declared by Congress to be in a state of insurrection, might, when that insurrection was subdued or abandoned, come back freely and voluntarily into the Union. It provided for representation; it provided for the election of a convention and a Legislature, and the election of Senators and members of Congress. It was a complete guaranty to the people within the States upon certain conditions to come back into the Union. The provisions and tests by which to judge when the state of insurrection had ceased and determined were prescribed. I introduced that bill here at the request of Mr. Davis. It was referred to the Judiciary Committee. It was not acted upon by them. I suppose they thought it premature. Afterward Mr. Davis came into the Thirtyeighth Congress as a member of the House of Representatives. Among the first acts performed by him after taking his seat was the introduction of this same bill, framed by him and introduced by me into the Senate, in the House of Representatives. It was introduced by him on the 15th December, 1863. It was debated in the House of Representatives and passed by a very decided vote, and it was sent to the Senate. It was reported to the Senate favorably; but in place of it was substituted the proposition I have already read, offered by the Senator from Missouri, which was adopted in the Senate. It was sent back to the House; a committee of conference was appointed, and the result was the reporting to the Senate and the House of what was called the Wade and Davis bill. That bill was debated and finally passed upon the report of the Committee of Conference. It went to the President; he did not approve it.

"He then goes on and gives his reasons for not approving this plan; nor does he entirely

disapprove of it, but he said it was one of numerous plans which might be adopted."

Mr. Sumner, of Massachusetts, said: "Will the Senator allow me to interrupt him there? I will state that it so happened that I had an interview with the late President Lincoln immediately after the publication of that paper, and it was the subject of very minute and protracted conversation, in the course of which, after discussing it in detail, he expressed to me his regret that he had not accepted the bill."

Mr. Sherman continued: "Mr. President, I think every patriotic citizen of the United States will express his regret, not so much that the President did not approve that bill, because I will not condemn the President for declining to sign it, but that Congress in connection with the President did not agree upon some plan of reconstruction by which these States might have been guided, so that when the rebellion was put down they might see in the form of law some guide to lead them in the difficult road to restoration. Who does not now see that any law upon the subject would have been better than the absence of all law?

"Now, I will ask Senators this plain question, whether we have a right now, having failed to do our constitutional duty, to arraign Andrew Johnson for following out a plan which in his judgment he deemed the best, and especially when that plan was the plan adopted by Mr. Lincoln, and which at least had the apparent ratification of the people of the United States in the election of Lincoln and Johnson.

“After this effort made by Congress to provide a plan of reconstruction, there was no effort made subsequently, no bill was introduced on the subject at the last session of Congress, no further effort was made to harmonize the conflicting views of the President and Congress. One whole session intervened after this veto, as I may call it, of President Lincoln, and no effort was made by Congress to reconcile this conflict of views; and when President Johnson came suddenly, by the hand of an assassin, into the presidential chair, what did he have before him to guide his steps? The forces of the rebellion had been subdued; all physical resistance was soon after subdued; the armies of Lee and Johnston and all the other armies of the rebels had been overwhelmed, and the South lay at our power. Who doubts, then, that if there had been a law upon the statute-book by which the people of the Southern States could have been guided in their effort to come back into the Union, they would have cheerfully followed it, although the conditions had been hard?

"In the absence of law, I ask you whether President Lincoln and President Johnson did not do substantially right when they adopted a plan of their own and endeavored to carry it into execution? Although we may now find fault with the terms and conditions that were imposed by them upon the Southern States, yet we must remember that the source of all power

in this country, the people of the United States, in the election of these two men substantially sanctioned the plan of Mr. Lincoln. Why, sir, at the very time that Andrew Johnson was nominated for the Vice-Presidency he was in Tennessee as military governor, executing the very plan that he subsequently attempted to carry out, and he was elected Vice-President of the United States when he was in the practical execution of that plan.

"What was the condition of these States? I shall not waste much time upon this point, because mere theoretical ideas never appear to me to have much force when we are legislating on practical matters. They have been declared to be States in insurrection, but States still. The very resolution we have before us repeats three times that they are States now. They are referred to as States not entitled to representation. They are stated to be

The eleven States which have been declared to be in insurrection.

แ "And again:

No Senator or Representative shall be admitted into either branch of Congress from any of said States until Congress shall have declared such State entitled to such representation.

"I could show very many acts of Congress in which they are referred to as States, but States in insurrection. And there is no difference between Congress and the President as to the present condition of these States. The executive branch of the Government in all its departments now treats them as States in rebellion or in insurrection. Tennessee is the only one of these States that has been proclaimed by the President to be out of insurrection. He is now exercising power in all these States as States in insurrection. He is suspending newspapers, exercising arbitrary power, suspending the writ of habeas corpus, treating them yet as States in insurrection; and in this view, as I have stated, Congress concurs.

"Now, what is the legal result of a State being in insurrection? It was sufficiently declared in the proposition I have already read, offered by the Senator from Missouri. They have no right while they are in insurrection to elect electors to the electoral college; they have no right to elect Senators and Representatives. In other words, they lose all those powers, rights, and privileges conferred upon them by the Constitution of the United States. Having taken up arms against the United States, they by that act lose their constitutional powers within the United States to govern and control our councils. They cannot engage in the election of a President, or in the election of Senators or members of Congress; but they are still States, and have been so regarded by every branch and every department of this Government. They are States in insurrection, whose rights under the Constitution are suspended until they cease to be in insurrection. When that period arrives is a question, in my judgment, which must be determined by Con